Common use of Buyer Default Clause in Contracts

Buyer Default. If (a) the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that the damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.

Buyer Default. If (a) the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Agreement after Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (ia) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iiib) the Deposit shall be paid to and retained by Seller as liquidated damages; and (ivc) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that the damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit (not including any interest and earnings earned thereon) shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement; provided, however, that this provision will not waive or affect Buyer’s indemnity obligations under this Agreement or Seller’s rights to enforce those indemnity obligations, nor waive or affect any of the Buyer’s other obligations under this Agreement to be performed after the Closing or Seller’s right to enforce those obligations. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.

Buyer Default. If (a) This Agreement may be terminated by the sale contemplated hereby is Seller on any Closing Date if the applicable Closing does not consummated because occur by reason of a material breach or default by the Buyer in the performance of its obligation to purchase the Property in accordance Assets under this Agreement (including, without limitation, Buyer's failure to comply with the requirements of Section 5.1). (b) In the event this Agreement is terminated pursuant to subsection 11.1(a), this Agreement shall be null and void and of no further force or effect and neither party shall have any rights or obligations against or to the other except for those provisions hereof which by their terms expressly survive the termination of this Agreement, (b) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and . (c) In the event the Seller has provided Buyer written notice of such default(sterminates this Agreement pursuant to Section 11.1(a), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: the Escrow Agent shall (i) this Agreement shall terminate; to the extent the Xxxxxxx Money is held in the form of immediately available wired funds, immediately disburse the Xxxxxxx Money to the Seller or (ii) Buyer shall return all Property Information to the extent the Xxxxxxx Money is held in the form of a letter of credit, make a full drawing under such letter of credit and disburse the proceeds of such drawing to the Seller; (iii) , and upon such disbursement the Deposit shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and the Buyer shall have no further obligations to each other under this Agreement, except those which expressly survive the termination of this Agreementsuch termination. The Buyer and the Seller hereby acknowledge and agree that it would be impractical and/or extremely difficult to fix or establish the actual damage sustained by Seller as a result of a default by the Buyer, and agree that the Xxxxxxx Money is a reasonable approximation thereof. Accordingly, the Xxxxxxx Money shall constitute and be deemed to be the agreed and liquidated damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best Sellers, and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be paid by the Escrow Agent to the Seller as the Seller’s 's sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreementexclusive remedy hereunder.

Buyer Default. If Buyer defaults in the observance or performance of its covenants and obligations hereunder, and such default continues for five (a5) Business Days after the sale contemplated hereby date of receipt of written notice from Seller demanding cure of such default, provided Seller is not consummated because in default, Seller shall be entitled, as its sole and exclusive remedy hereunder, to Terminate this Agreement by written notice to Buyer of a default by Buyer in its obligation such termination and to purchase receive (x) if such termination election is made on or prior to the Property initial Closing, liquidated damages equal to five percent (5%) of the Purchase Price with respect to the allocated value of all Hotels (taking into account any reduction to such Purchase Price in accordance with Paragraph 9.1 or otherwise provided for herein); or (y) if such election is made at any time after the terms initial Closing, five percent (5%) of this Agreementthe Purchase Price allocated to the Austin, (b) Seller has performed or tendered performance TX InterContinental Hotel, as full liquidated damages for such default of all Buyer, the parties hereto acknowledging the difficulty of its material obligations ascertaining the actual damages in accordance with this Agreement, and (c) Seller has provided Buyer written notice the event of such default(s)a default, then, if Buyer fails that it is impossible more precisely to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer’s default, that such liquidated damages is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller’s actual damages which would be suffered by Seller in the event of a breach default by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible to determineAgreement, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of including any indemnification provisions set forth in this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Agreement, Seller’s right to retain the Deposit shall be Terminate this Agreement and receive full liquidated damages, are Seller’s sole remedyand exclusive remedies in the event of a default hereunder by Buyer, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives waives, relinquishes and releases any right and all other rights and remedies (except any that survive Closing or termination pursuant to an action for specific performance of any the express provisions of this Agreement), including, but not limited to: (1) any right to sxx Buyer for damages or to prove that Seller’s actual damages exceed the amount of liquidated damages set forth above which is hereby provided Seller as full liquidated damages, (2) any right to sxx Buyer for specific performance, or (3) any other right or remedy which Seller may otherwise have against Buyer, either at law, or equity or otherwise. Notwithstanding anything contained herein to the foregoingcontrary, if Buyer has made the Deposit hereunder and Seller Terminates this provision will not limit Seller’s right Agreement in accordance with clause (x) of the first sentence hereof, then Seller shall be able to receive reimbursement for attorneys’ fees pursuant to as its sole remedy payment of the Deposit as full liquidated damages. The provisions of this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this AgreementParagraph 12.1 shall survive the termination hereof.

Buyer Default. If Buyer defaults in the performance of any of its obligations undertaken in this Agreement, and should such default continue for a period of ten (a10) Business Days after the sale contemplated hereby date on which Buyer receives Seller Parties’ written notice of default, then Seller Parties shall be entitled, as their sole and exclusive remedy, to be exercised only jointly by them, to either: (i) if Buyer is not consummated because of a willing to proceed with Closing, waive such default by Buyer in its obligation and proceed to purchase the Property Closing in accordance with the terms of and provisions hereof; or (ii) terminate this Agreement, in which event Seller shall be entitled to receive all of the Deposit as liquidated damages as and for Seller Parties’ sole and exclusive remedy. Upon such termination, neither Buyer, Seller Parties nor Tenant shall have any further rights, obligations or liabilities hereunder, except as otherwise expressly provided herein. Seller Parties and Buyer agree that (a) actual damages due to Buyer’s default hereunder would be difficult and inconvenient to ascertain and that such amount is not a penalty and is fair and reasonable in light of all relevant circumstances, (b) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller amount specified as liquidated damages; and (iv) Seller and Buyer shall have no further obligations damages is not disproportionate to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that the damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered and the costs that would be incurred by a Seller if Party as a result of having withdrawn the transaction should fail Properties from the market, and (c) Buyer desires to close and that such estimate is reasonable limit its liability under this Agreement to the circumstances existing as amount of the date of this Agreement and under Deposit paid in the circumstances that Seller and event Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right fails to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreementcomplete Closing. Seller Parties hereby waives waive any right to an action for specific performance recover the balance of the Purchase Price, or any provisions of this Agreement. Notwithstanding part thereof, and the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive pursue any other remedy permitted at law or affect in equity against Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations . In no event under this AgreementSection or otherwise shall Buyer be liable to Seller Parties for any punitive, speculative or consequential damages.

Buyer Default. If (a) the sale contemplated hereby is not consummated because of a either: (a)_a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, Agreement or (b) a failure of a condition to Seller’s performance set forth in Section 5.5 which has not been waived by Seller and the failure of which was caused by the willful conduct of Buyer, in each case after Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (ia) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iiib) the Deposit and all interest earned thereon shall be paid to and retained by Seller as liquidated damages; and (ivc) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement, including without limitation, Buyer’s obligation of indemnity under Section 3.1 above; provided, however, that this provision will not limit Seller’s right to receive reimbursement for attorney’s fees pursuant to Section 9.8 below in connection with any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of this Agreement, nor waive or affect Buyer’s indemnity obligations under this Agreement or Seller’s rights to enforce those indemnity obligations, nor waive or affect any of Buyer’s other obligations under this Agreement to be performed after the Closing or Seller’s rights to enforce those obligations. Buyer and Seller acknowledge that the damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit plus interest represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit together with any interest and earnings earned thereon shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Initials: Buyer Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.

Buyer Default. If Buyer defaults in the observance or performance of its covenants and obligations hereunder, and such default continues for five (a5) Business Days after the sale contemplated hereby date of receipt of written notice from Seller demanding cure of such default, provided Seller is not consummated because in default, Seller shall be entitled, as its sole and exclusive remedy hereunder, to Terminate this Agreement by written notice to Buyer of a default by Buyer in its obligation such termination and to purchase receive (x) if such termination election is made on or prior to the Property Closing Deadline, liquidated damages equal to five percent (5%) of the Purchase Price with respect to the allocated value of all Hotels (taking into account any reduction to such Purchase Price in accordance with Paragraph 9.1 or otherwise provided for herein); or (y) if such election is made at any time after the terms initial Closing, five percent (5%) of this Agreementthe Purchase Price allocated to the Austin, (b) Seller has performed or tendered performance TX InterContinental Hotel, as full liquidated damages for such default of all Buyer, the parties hereto acknowledging the difficulty of its material obligations ascertaining the actual damages in accordance with this Agreement, and (c) Seller has provided Buyer written notice the event of such default(s)a default, then, if Buyer fails that it is impossible more precisely to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer's default, that such liquidated damages is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller's actual damages which would be suffered by Seller in the event of a breach default by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible Agreement, including any indemnification provisions set forth in this Agreement, Seller's right to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of Terminate this Agreement and under receive full liquidated damages, are Seller's sole and exclusive remedies in the circumstances that Seller and Buyer reasonably anticipate would exist at the time event of such breach. Buyer default hereunder by Buyer, and Seller agree hereby waives, relinquishes and releases any and all other rights and remedies (except any that Seller’s right survive Closing or termination pursuant to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any express provisions of this Agreement), including, but not limited to: (1) any right to sue Buyer for damages or to prove that Seller's actual damages exceed xxe amount of liquidated damages set forth above which is hereby provided Seller as full liquidated damages, (2) any right to sue Buyer for specific performance, or (3) any other right or remedy xxxch Seller may otherwise have against Buyer, either at law, or equity or otherwise. Notwithstanding anything contained herein to the foregoingcontrary, if Buyer has made the Deposit hereunder and Seller Terminates this provision will not limit Seller’s right Agreement in accordance with clause (x) of the first sentence hereof, then Seller shall be able to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreementas its sole remedy payment of the Deposit as full liquidated damages.

Buyer Default. If (a) the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), thenExcept as set forth hereinbelow, if Buyer fails to cure defaults in the observance or performance of its covenants and obligations hereunder, or in the event of any breach by Buyer of any of the representations and warranties set forth in Paragraph 8.5, and such default within three or breach continues for five (35) Business Days after the date Seller gives notice demanding cure thereof, or if Buyer defaults in the observance or performance of receipt its covenants and obligations under any of the Related Contracts beyond any cure period afforded to Buyer pursuant to the terms thereof, Seller shall be entitled, as its sole and exclusive remedy therefor, to Terminate this Agreement by notice to Buyer of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information termination and to Seller; (iii) receive payment of the Deposit shall be paid as full liquidated damages for such default or breach of Buyer, the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such a default or breach, that it is impossible more precisely to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer’s default or breach, that such forfeiture of the Deposit is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller’s actual damages which would be suffered by Seller in the event of a default or breach by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible to determineAgreement, that the amount of the Deposit represents the parties’ best including any indemnification provisions set forth in this Agreement, and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing except as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that set forth in Paragraph 14.17, Seller’s right to retain Terminate this Agreement and receive payment of the Deposit shall be as full liquidated damages, are Seller’s sole remedyand exclusive remedies in the event of default or breach hereunder by Buyer, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives waives, relinquishes and releases any right and all other rights and remedies (except any that survive Closing or termination pursuant to an action for specific performance of any the express provisions of this Agreement. Notwithstanding the foregoing), this provision will including, but not limit limited to: (A) any right to xxx Buyer for damages or to prove that Seller’s actual damages exceed the Deposit which is hereby provided Seller as full liquidated damages, (B) any right to xxx Buyer for specific performance, or (C) any other right or remedy which Seller may otherwise have against Buyer, either at law, or equity or otherwise, including, without limitation, the right to seek and/or receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreementconsequential damages.

Buyer Default. If (a) In the sale contemplated hereby event Buyer breaches or fails, without legal excuse to complete the purchase of the Property or to perform its obligations under this Agreement when it is not consummated because of obligated to do so, and such failure neither is a default repetitive failure by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, nor continues for five (b) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (35) Business Days after written notice from Seller to Buyer regarding the same (provided that such five (5) Business Day period shall not be applicable in connection with a failure by Buyer to perform any of receipt its obligations on the scheduled Closing Date), then Seller shall, as its SOLE AND EXCLUSIVE remedy therefor, be entitled to terminate this Agreement and receive the Deposit, plus all interest earned and accrued thereon, as liquidated damages (and not as a penalty) in lieu of, and as full compensation for, all other rights or claims of Seller against Buyer by reason of such notice: default (i) other than with respect to the indemnification and restoration obligations of Buyer contained herein). Thereupon this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) terminate and the Deposit parties shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no relieved of all further obligations to each other and liabilities hereunder, except those which survive the termination of this Agreementas expressly set forth herein, including, but not limited to, Buyer’s indemnification and restoration obligations. Buyer and Seller acknowledge that the damages to Seller resulting from Buyer’s breach would be difficult, if not impossible, to ascertain with any accuracy, and that the liquidated damage amount set forth in this Section 10.1 represents both parties’ best efforts to approximate such potential damages. Other than its right to receive the Deposit, Seller expressly waives its rights to seek damages against Buyer in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreementdefault hereunder. Seller hereby waives any right to an action for specific performance of any The provisions of this Agreement. Notwithstanding the foregoing, this provision will Section 10.1 shall not limit Seller’s right the obligations of Buyer to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.indemnify Seller as set forth herein. ​ ​ ​

Buyer Default. If (a) In the sale contemplated hereby is not consummated because event Buyer breaches or fails, without legal excuse to complete the purchase of a default by Buyer in its obligation the Properties or to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed or tendered performance of all perform any of its other material obligations in accordance with under this Agreement, and such failure continues for ten (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (310) Business Days after written notice from Sellers to Buyer regarding the same (provided that such ten (10) Business Day period shall not be applicable in connection with a failure by Buyer to perform any of receipt its obligations on the scheduled Closing Date or with respect to any repetitive breaches by Buyer of any provision of this Agreement), then Sellers shall, as their sole remedy therefor, be entitled to terminate this Agreement and receive the Deposit, plus all interest earned and accrued thereon, as liquidated damages (and not as a penalty) in lieu of, and as full compensation for, all other rights or claims of Sellers against Buyer by reason of such notice: default (i) other than with respect to the indemnification and restoration obligations of Buyer contained herein). Thereupon this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) terminate and the Deposit parties shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no relieved of all further obligations to each other and liabilities hereunder, except those which survive the termination of this Agreementas expressly set forth herein, including, but not limited to, Buyer’s indemnification and restoration obligations. Buyer and Seller Sellers acknowledge that the damages to Seller in the event of a Sellers resulting from Buyer’s breach of this Agreement by Buyer would be difficult or impossible difficult, if not impossible, to determineascertain with any accuracy, and that the liquidated damage amount of the Deposit set forth in this Section 10.1 represents the both parties’ best efforts to approximate such potential damages. In the event Buyer breaches Buyer’s indemnification and most accurate estimate of the restoration obligations hereunder, then Buyer shall be liable to Sellers for actual damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as Sellers on account of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time Buyer’s breach of such breach. Buyer obligations, and Seller agree that Seller’s right to retain the Deposit shall in no event be Seller’s sole remedy, at law and in equity, liable for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance consequential or punitive damages on account of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreementsuch breach.

Buyer Default. If (a) Time shall be of the sale contemplated hereby is not consummated because essence of a this Agreement and in the event Buyer fails to comply timely with any of Buyer’s funding obligations under this Agreement relating to the Extension Payment, the Estimated Additional Cost Deposits, or the Extension Consideration, fails to provide the Undertaking on or before July 31, 2013, or this transaction fails to close on or before August 16, 2013, due to the default of Buyer hereunder, Owner’s and Lender’s sole and exclusive remedy shall be to terminate this Agreement by written notice of termination given to Buyer, MFG and HMF, in which event the Deposit shall be forfeited by Buyer in its obligation and the amount equal thereto paid to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed or tendered performance of all of its material obligations Lender in accordance with this AgreementSection 16.2. In addition to the Deposit forfeiture, Lender shall also be entitled to be paid the Extension Payment as liquidated damages for Buyer’s default. Accordingly, following such default by Buyer (1) MFG shall deliver to Lender all or a portion of the Extension Xxxxxxx Money and any other sums held in escrow by MFG, if any, not to exceed Seller’s Default Compensation, and (c2) Seller has provided Buyer written notice HMF shall utilize the original stamped copy of such default(s)this Agreement duly marked “canceled” together with the Original Transfer Tax Receipt to invoke the Unwind Procedure and, thenupon recovery of the Stamp Duty and Tax Refund, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (i) Lender shall be paid an amount equal to Seller’s Default Compensation less amounts paid to Lender under clause (1) of this Agreement shall terminate; Section 16.2, (ii) Buyer shall return all Property Information the balance of the Stamp Duty and Tax Refund not required to Seller; (iii) the Deposit be paid to Lender as aforesaid shall be paid to Buyer, and retained (iii) no Party shall thereafter have any liability hereunder to any other Party (except as expressly stated otherwise in this Agreement). Lender’s right to receive the Extension Payment contemplated by Seller this Section 16.2 as liquidated damages; and (iv) Seller and Buyer shall have no further obligations damages is not intended to each other except those which survive be a penalty, but rather has been agreed upon by the termination Parties, taking into account the forfeiture of this Agreement. Buyer and Seller acknowledge the Deposit, because actual damages that the damages to Seller in the event will be sustained by Lender and/or Owner as a result of a breach of this Agreement such default by Buyer would be extremely difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.”

Buyer Default. If (a) Buyer defaults under this Agreement after the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed or tendered performance of all of its material obligations in accordance with this AgreementApproval Date, and such default continues for fifteen (c15) Seller has provided Buyer days following written notice of such default(sfrom Seller (provided no notice shall extend the time for Closing), thenthen at Seller’s election by written notice to Buyer at any time prior to the cure of any such default, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) be terminated and of no effect, in which event the Deposit Deposit, including any interest thereon, shall be paid to and retained by the Seller as Seller’s sole and exclusive remedy hereunder, and as liquidated damages; and damages for Buyer’s default (iv) Seller and Buyer shall have no further obligations damages for such default being extremely difficult or impractical to each other except those which survive ascertain, the termination of this Agreement. Buyer and Seller acknowledge parties acknowledging that the damages Deposit, together with all interest earned thereon, bears a reasonable relationship to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would which the parties estimate may be suffered by Seller if by reason of such a failure of Closing to occur, and the transaction should fail to close deposit and that such estimate interest is reasonable not an amount which is unreasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time this agreement is made (Buyer acknowledging and agreeing that Buyer has fully considered the provisions of this Section 19.1 and such breach. circumstances prior to entering into this agreement and has consulted with Buyer’s counsel with respect thereto)) and both Buyer and Seller agree shall thereupon be released from all obligations hereunder except for those that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives explicitly survive any right to an action for specific performance of any provisions termination of this Agreement. Notwithstanding the foregoingforegoing provisions of this Section 19.1, this provision will not limit Seller’s right in addition to receive reimbursement for attorneys’ fees the payment of the Deposit, Seller shall be entitled to payment of reasonable costs of enforcement actually incurred by Seller to the extent payable pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this AgreementSection 16.9.

Buyer Default. If (a) Closing fails to occur on the sale contemplated hereby Closing Date because Buyer fails to perform any of its material obligations, or if Buyer is not consummated because of a in material default by hereunder, or Buyer materially defaults in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) after each Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has then, provided Buyer written that the Sellers shall have delivered notice of such default(s)material failure or material default to Buyer, thenand Buyer shall not have remedied or cured such material failure or material default within ten (10) Business Days after receipt of such notice (or, if Buyer fails is not reasonably able to effectuate such remedy or cure within such default within three ten (310) Business Days Day period, such longer period, not to exceed thirty (30) days in the aggregate for all such material defaults), in which event the Closing Date shall be automatically extended (without the need for any action on the part of receipt Buyer or the Sellers) to the Business Day after the earlier of the date Buyer remedies or cures such material default in all material respects or the expiration of such notice: ten (10) Business Day (or longer as aforesaid) period), (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit (and any and all interest thereon) shall be paid to and retained by Seller the Sellers as liquidated damages; and (iviii) Seller the Sellers and Buyer shall have no further obligations to each other under this Agreement except those provisions which expressly survive the termination of this Agreement. Buyer and Seller the Sellers acknowledge that the damages to Seller the Sellers in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller the Sellers if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller the Sellers and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller the Sellers agree that Seller’s the Sellers’ right to retain the Deposit (and interest earned thereof) shall be Seller’s the Sellers’ sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller The Sellers hereby waives waive any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.

Buyer Default. If (a) prior to Closing Buyer fails to perform any of its obligations or is otherwise in default hereunder, and such failure or default continues for a period of five (5) Business Days after written notice from Seller, then after the expiration of such five (5) Business Day period, if such failure or default causes a material, adverse impact on Seller or the Property, then; or (b) the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Agreement after Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller as liquidated damages; and (iviii) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that the damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit deposit plus interest represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that that, except as set forth in the last sentence of this Section 6.1, Seller’s right to retain the Deposit together with any interest and earnings earned thereon shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement, or if Buyer fails to perform any of its obligations or is otherwise in default hereunder. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, The foregoing provisions of this provision Section 6.1 will not limit Seller’s right to receive reimbursement for attorneys’ attorney’s fees pursuant to Section 9.8 below in connection with any legal proceedings instituted by either party or Escrow Agent with respect to the enforcement of this Agreement, nor waive or affect Buyer’s indemnity obligations and under this Agreement or Seller’s rights to enforce those indemnity obligations, nor waive or affect any of Buyer’s other obligations under this AgreementAgreement to be performed after the Closing or Seller’s rights to enforce those obligations; and further provided, however, that in no event shall Buyer be liable post-Closing for any representation or warranty of Buyer which Seller knew to be false prior to Closing.

Buyer Default. If (a) Buyer defaults under this Agreement at or prior to the sale contemplated hereby is not consummated because of a default Applicable Closing Date by Buyer in its obligation failing to purchase complete the Property Applicable Closing in accordance with the terms of this Agreement, Agreement or in any other material respect which remains uncured after five (b5) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer days written notice of from Seller to Buyer identifying such default(s)default, then, then if Buyer fails to cure such default within three (3) Business Days relates to a particular Seller’s Property, the portion of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit relating to such Property shall immediately be paid to and the Seller of such Property thereof by the Escrow Agent. The amounts received by such Seller shall be retained by Seller it as liquidated damages; damages and (iv) not as a penalty. The retention of such amounts shall be such Seller’s sole remedy in the event of Buyer’s default at or prior to the Applicable Closing Date, and such Seller in such event hereby waives any right, unless the Applicable Closing is completed, to recover the balance of the Allocated Purchase Price. Each Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge agree that the actual damages to such Seller in the event of a such breach of this Agreement by Buyer would be difficult or impossible are impractical to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing ascertain as of the date of this Agreement and under the circumstances that amounts to be paid to such Seller and Buyer reasonably anticipate would exist at hereunder is a reasonable estimate thereof. Upon payment of the time of sums provided in this Section 15(a) to such breach. Buyer and Seller agree that as liquidated damages, such Seller’s Property shall become Excluded Property hereunder. If Buyer’s default does not relate to a particular Seller’s Property then the foregoing shall apply to each and every Seller with respect to its Property and this Agreement shall, upon the payments by Buyer to Seller specified herein, be terminated in full. The foregoing notwithstanding, no right to retain cure shall extend the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this AgreementApplicable Closing Date.

Buyer Default. If (a) Buyer defaults in the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed observance or tendered performance of all of its material covenants and obligations in accordance with this Agreementhereunder, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three continues for five (35) Business Days after the date of receipt of written notice from Seller demanding cure of such notice: (i) default, Seller shall be entitled, as its sole and exclusive remedy hereunder, to Terminate this Agreement shall terminate; (ii) by written notice to Buyer shall return all Property Information of such termination and to Seller; (iii) receive payment of the Deposit as full liquidated damages for such default of Buyer (and Escrow Agent shall be paid deliver such payment within five (5) Business Days after such demand of Seller), the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such a default, that it is impossible more precisely to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer’s default, that such forfeiture of the Deposit is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller’s actual damages which would be suffered by Seller in the event of a breach default by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible to determineAgreement, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of including any indemnification provisions set forth in this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Agreement, Seller’s right to retain Terminate this Agreement and receive payment of the Deposit shall be as full liquidated damages, are Seller’s sole remedyand exclusive remedies in the event of default hereunder by Buyer, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives waives, relinquishes and releases any right and all other rights and remedies (except any that survive Closing or termination pursuant to an action for specific performance of any the express provisions of this Agreement. Notwithstanding the foregoing), this provision will including, but not limit limited to: (1) any right to xxx Buyer for damages or to prove that Seller’s actual damages exceed the Deposit which is hereby provided Seller as full liquidated damages, (2) any right to receive reimbursement xxx Buyer for attorneys’ fees pursuant to this Agreementspecific performance, nor waive or affect (3) any other right or remedy which Seller may otherwise have against Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement, either at law, or equity or otherwise.

Buyer Default. If (a) the sale contemplated hereby is not consummated because Closing fails to occur on or before the Closing Date by reason of a Buyer’s breach of or default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed or tendered performance of all of its material obligations in accordance with under this Agreement, and any such circumstance continues for five (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (35) Business Days of receipt of after written notice from Seller to Buyer, which written notice shall detail such notice: default, untruth or failure, as applicable, then Seller may elect to (ia) terminate this Agreement shall terminate; (ii) Buyer shall return all Property Information by written notice to Seller; (iii) Buyer, promptly after which the Deposit shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer damages and, thereafter, the parties shall have no further rights or obligations to each other hereunder except those for obligations which expressly survive the termination of this Agreement, or (b) waive the condition and proceed to close the Transaction. Buyer and Seller acknowledge and agree that the retention of the Deposit by Seller is not a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of a such breach of this Agreement by Buyer would be difficult or impossible are impractical to determine, that ascertain and the amount of the Deposit represents is a reasonable estimate thereof. Except in connection with the parties’ best and most accurate estimate indemnification obligations of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement Buyer hereunder and under the circumstances that Seller Closing Documents and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. payment obligations under Section 15.19, Seller hereby waives and releases any right to an action (and hereby covenants that it shall not) xxx Buyer: (a) for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations (b) to recover any damages of any nature or description other than or in excess of the Deposit. Buyer hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Deposit (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller’s rights to those indemnity obligations under this Agreementactual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages.

Buyer Default. 6.1.1 If (a) Closing fails to occur on the sale contemplated hereby Closing Date because Buyer fails to perform any of its material obligations or is not consummated because otherwise in material default under any of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this AgreementBuyer’s obligations under Section 5.6, (b) and Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, then, provided that Seller shall have delivered notice of such material failure or material default to Buyer, and Buyer shall not have remedied or cured such material failure or material default within ten (c10) Business Days after receipt of such notice, in which event the Closing Date shall be automatically extended (without the need for any action on the part of Buyer or Seller) to the Business Day after the earlier of the date Buyer remedies or cures such material default in all material respects or the expiration of such ten (10) Business Day period, (i) Seller has provided Buyer shall have the right (but not the obligation) to terminate this Agreement upon written notice of such default(s), then, if Buyer fails termination to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminateBuyer; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit (and any and all interest thereon) shall be paid to and retained by Seller as liquidated damagesdamages as its sole and exclusive remedy; and (iviii) Seller and Buyer shall have no further obligations to each other under this Agreement except those provisions which expressly survive the termination of this Agreement. Notwithstanding anything in this Section 6.1.1 to the contrary, Buyer shall not have any cure period, and Seller acknowledge that the damages will not be required to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible deliver any notice to determineBuyer, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail with respect to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase perform on the Property Closing Date due to Buyer’s failure to deliver into Escrow the balance of the Purchase Price owed by Buyer as of the Closing Date and/or Buyer’s failure to deliver its required, executed signature pages to the closing documents, and in accordance with the terms case of any such failure on the part of Buyer (i) Seller shall have the immediate right (but not the obligation) to terminate this Agreement upon written notice of such termination to Buyer; (ii) the Deposit (and any and all interest thereon) shall be paid to and retained by Seller as liquidated damages as its sole and exclusive remedy; and (iii) Seller and Buyer shall have no further obligations to each other under this Agreement except those provisions which expressly survive the termination of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement.

Buyer Default. If (a) Buyer defaults in the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed observance or tendered performance of all of its material covenants and obligations in accordance with this Agreementhereunder, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three continues for five (35) Business Days after the date of receipt of written notice from Seller demanding cure of such notice: (i) default, Seller shall be entitled, as its sole and exclusive remedy hereunder, to Terminate this Agreement shall terminate; (ii) by written notice to Buyer shall return all Property Information of such termination and to Seller; (iii) receive payment of the Deposit as full liquidated damages for such default of Buyer (and Escrow Agent shall be paid deliver such payment within five (5) Business Days after such demand of Seller), the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such a default, that it is impossible more precisely to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer’s default, that such forfeiture of the Deposit is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller’s actual damages which would be suffered by Seller in the event of a breach default by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible to determineAgreement, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of including any indemnification provisions set forth in this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Agreement, Seller’s right to retain Terminate this Agreement and receive payment of the Deposit shall be as full liquidated damages, are Seller’s sole remedyand exclusive remedies in the event of default hereunder by Buyer, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives waives, relinquishes and releases any right and all other rights and remedies (except any that survive Closing or termination pursuant to an action for specific performance of any the express provisions of this Agreement. Notwithstanding the foregoing), this provision will including, but not limit limited to: (1) any right to xxx Buyer for damages or to prove that Seller’s actual damages exceed the Deposit which is hereby provided Seller as full liquidated damages, (2) any right to receive reimbursement xxx Buyer for attorneys’ fees pursuant to this Agreementspecific performance, nor waive or affect (3) any other right or remedy which Seller may otherwise have against Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement, either at law, or equity or otherwise.

Buyer Default. If (a) the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Agreement after Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer then, upon written notice of such default(s), then, if Buyer fails from Seller to cure such default within three (3) Business Days of receipt of such noticeBuyer: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller as liquidated damages; and (iviii) Seller and Buyer shall have no further obligations to each other other, except those which survive the termination of this Agreement. Buyer and Seller acknowledge that the damages to Seller in the event of such a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breachdefault. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this AgreementAgreement after Seller has performed. Seller hereby waives any right to an action to specifically enforce the purchase of the Property. Nothing herein shall limit, or be interpreted to limit in any manner whatsoever: (i) Buyer’s indemnity obligations pursuant to this Agreement; or (ii) Seller’s right to enforce or seek damages against Buyer for specific performance breach of any provisions covenant of Buyer pursuant to this Agreement. Notwithstanding , except for an action to specifically enforce purchase of the foregoing, this provision will not limit Property; (iii) Seller’s right to receive reimbursement for of attorneys’ fees pursuant to this AgreementSection 9.8, nor infra; or (iv) Seller’s right to waive or affect any of Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this AgreementAgreement to be performed after Closing, or Seller’s right to enforce those obligations.

Buyer Default. If (a) In the sale contemplated hereby is not consummated because event Buyer breaches or fails to complete the purchase of a default by Buyer in its obligation to purchase the Property in accordance with the terms of or to perform its obligations under this Agreement, (b) Seller has performed or tendered performance of all of its material obligations then, except as otherwise expressly set forth in accordance with this Agreement, Seller shall, as its sole remedy therefor, be entitled to receive the Deposit as liquidated damages (and (cnot as a penalty) in lieu of, and as full compensation for, all other rights or claims of Seller has provided against Buyer written notice by reason of such default(s)default, then, if Buyer fails to cure such default within three (3) Business Days of upon receipt of such notice: (i) which this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) terminate and the Deposit parties shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no relieved of all further obligations to each other and liabilities hereunder, except those which survive the termination of this Agreementas expressly set forth herein. Buyer and Seller acknowledge that the damages to Seller resulting from Buyer’s breach would be difficult, if not impossible, to ascertain with any accuracy, and that the liquidated damage amount set forth in this Section 10.1 represents both parties’ best efforts to approximate such potential damages. Provided that Seller is not in default under this Agreement, if Seller terminates this Agreement pursuant to a right given to it hereunder and Buyer files any lis pendens or other form of attachment against the event Property), then Buyer (and any permitted assignee of a breach Buyer’s interest hereunder) shall be liable for all loss, cost, damage, liability or expense incurred by Seller by reason of such filing. Notwithstanding anything contained herein to the contrary, Buyer acknowledges that Buyer’s indemnification obligations which are expressly stated herein to survive the Closing or termination of this Agreement are and shall not be limited by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate submission or forfeiture of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this AgreementDeposit.

Buyer Default. If Buyer defaults in the observance or performance of its covenants and obligations hereunder, and such default continues for five (a5) Business Days after the sale contemplated hereby date of receipt of written notice from Seller demanding cure of such default, provided Seller is not consummated because in default, Seller shall be entitled, as its sole and exclusive remedy hereunder, to Terminate this Agreement by written notice to Buyer of a default by Buyer in its obligation such termination and to purchase receive (x) if such termination election is made on or prior to the Property initial Closing, liquidated damages equal to five percent (5%) of the Purchase Price with respect to the allocated value of all Hotels (taking into account any reduction to such Purchase Price in accordance with Paragraph 9.1 or otherwise provided for herein); or (y) if such election is made at any time after the terms initial Closing, five percent (5%) of this Agreementthe Purchase Price allocated to the Austin, (b) Seller has performed or tendered performance TX InterContinental Hotel, as full liquidated damages for such default of all Buyer, the parties hereto acknowledging the difficulty of its material obligations ascertaining the actual damages in accordance with this Agreement, and (c) Seller has provided Buyer written notice the event of such default(s)a default, then, if Buyer fails that it is impossible more precisely to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer's default, that such liquidated damages is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller's actual damages which would be suffered by Seller in the event of a breach default by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible Agreement, including any indemnification provisions set forth in this Agreement, Seller's right to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of Terminate this Agreement and under receive full liquidated damages, are Seller's sole and exclusive remedies in the circumstances that Seller and Buyer reasonably anticipate would exist at the time event of such breach. Buyer a default hereunder by Buyer, and Seller agree hereby waives, relinquishes and releases any and all other rights and remedies (except any that Seller’s right survive Closing or termination pursuant to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreement. Seller hereby waives any right to an action for specific performance of any express provisions of this Agreement), including, but not limited to: (1) any right to sue Buyer for damages or to prove that Seller's actual damages exceed xxx amount of liquidated damages set forth above which is hereby provided Seller as full liquidated damages, (2) any right to sue Buyer for specific performance, or (3) any other right or remedy wxxxh Seller may otherwise have against Buyer, either at law, or equity or otherwise. Notwithstanding anything contained herein to the foregoingcontrary, if Buyer has made the Deposit hereunder and Seller Terminates this provision will not limit Seller’s right Agreement in accordance with clause (x) of the first sentence hereof, then Seller shall be able to receive reimbursement for attorneys’ fees pursuant to as its sole remedy payment of the Deposit as full liquidated damages. The provisions of this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this AgreementParagraph 12.1 shall survive the termination hereof.

Buyer Default. If (a) Buyer defaults in the sale contemplated hereby is not consummated because of a default by Buyer in its obligation to purchase the Property in accordance with the terms of this Agreement, (b) Seller has performed observance or tendered performance of all of its material covenants and obligations in accordance with this Agreementhereunder, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three continues for five (35) Business Days after the date of receipt of written notice from Seller demanding cure of such notice: (i) default, provided Seller is not in default, Seller shall be entitled, as its sole and exclusive remedy hereunder, to Terminate this Agreement shall terminate; by written notice to Buyer of such termination and, provided the deposit contemplated by Paragraph 18 of the Purchase and Sale Agreement, as amended from time to time, has not been posted by Buyer, to receive liquidated damages equal to five percent (ii5%) Buyer shall return all Property Information of the Purchase Price on or prior to Seller; (iii) the Deposit shall be paid Closing Date as full liquidated damages for such default of Buyer, the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such a default, that it is impossible more precisely to and retained by Seller as liquidated damages; and (iv) Seller and Buyer shall have no further obligations to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that estimate the damages to be suffered by Seller upon Buyer’s default, that such liquidated damages are intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Seller’s actual damages which would be suffered by Seller in the event of a breach default by Buyer. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement by Buyer would be difficult or impossible to determineAgreement, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered by Seller if the transaction should fail to close and that such estimate is reasonable under the circumstances existing as of the date of including any indemnification provisions set forth in this Agreement and under the circumstances that Seller and Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Agreement, Seller’s right to retain the Deposit shall be Terminate this Agreement is Seller’s sole remedyand exclusive remedy in the event of a default under this Agreement by Buyer, and Seller hereby waives, relinquishes and releases any and all other rights and remedies (except any that survive Closing or termination pursuant to the express provisions of this Agreement), including, but not limited to: (1) any right to sxx Buyer for damages, (2) any right to sxx Buyer for specific performance, or (3) any other right or remedy which Seller may otherwise have against Buyer, either at law and in equitylaw, for Buyeror equity or otherwise. To the extent that Seller’s failure Related Party is entitled to purchase the Property deposit in accordance with the terms of this Purchase and Sale Agreement. , Seller hereby waives any right to an action for specific performance of any provisions of this Agreement. Notwithstanding the foregoing, this provision will shall not limit Seller’s right be able to receive reimbursement any damages hereunder for attorneys’ fees pursuant to this Agreement, nor waive or affect Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreementbreach of the terms hereof.

Buyer Default. If Buyer defaults in any of its obligations undertaken in this Agreement or New Operator defaults in any of its obligations undertaken in the OTA, and should such default continue for a period of ten (a10) business days after the sale contemplated hereby date on which Buyer receives Seller’s written notice of default, then Seller shall be entitled, as its sole and exclusive remedy, to either: (i) if Buyer is not consummated because of a willing to proceed with Closing, waive such default by Buyer in its obligation and proceed to purchase the Property Closing in accordance with the terms and provisions hereof (assuming that New Operator also waives any default under the OTA and proceeds with closing thereunder); or (ii) declare this Agreement to be terminated, in which event Seller shall be entitled to immediately receive all of this Agreementthe Xxxxxxx Money as liquidated damages as and for Seller’s sole and exclusive remedy. Upon such termination, neither Buyer nor Seller shall have any further rights, obligations or liabilities hereunder, except as otherwise expressly provided herein. Seller and Buyer agree that (a) actual damages due to Buyer’s default hereunder would be difficult and inconvenient to ascertain and that such amount is not a penalty and is fair and reasonable in light of all relevant circumstances, (b) Seller has performed or tendered performance of all of its material obligations in accordance with this Agreement, and (c) Seller has provided Buyer written notice of such default(s), then, if Buyer fails to cure such default within three (3) Business Days of receipt of such notice: (i) this Agreement shall terminate; (ii) Buyer shall return all Property Information to Seller; (iii) the Deposit shall be paid to and retained by Seller amount specified as liquidated damages; and (iv) Seller and Buyer shall have no further obligations damages is not disproportionate to each other except those which survive the termination of this Agreement. Buyer and Seller acknowledge that the damages to Seller in the event of a breach of this Agreement by Buyer would be difficult or impossible to determine, that the amount of the Deposit represents the parties’ best and most accurate estimate of the damages that would be suffered and the costs that would be incurred by Seller if as a result of having withdrawn the transaction should fail Properties from the market, and (c) Buyer desires to close and that such estimate is reasonable limit its liability under this Agreement to the circumstances existing as amount of the date of this Agreement and under Xxxxxxx Money paid in the circumstances that Seller and event Buyer reasonably anticipate would exist at the time of such breach. Buyer and Seller agree that Seller’s right fails to retain the Deposit shall be Seller’s sole remedy, at law and in equity, for Buyer’s failure to purchase the Property in accordance with the terms of this Agreementcomplete Closing. Seller hereby waives any right to an action for specific performance recover the balance of the Purchase Price, or any provisions of this Agreement. Notwithstanding part thereof, and the foregoing, this provision will not limit Seller’s right to receive reimbursement for attorneys’ fees pursuant to this Agreement, nor waive pursue any other remedy permitted at law or affect in equity against Buyer’s indemnity obligations and Seller’s rights to those indemnity obligations . In no event under this AgreementSection or otherwise shall Buyer be liable to Seller for any punitive, speculative or consequential damages.