Common use of Buyer’s Default Clause in Contracts

Buyer’s Default. If Seller and/or its Affiliates have complied with all of the covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with this Agreement and Buyer or its Affiliates or New Castle for any reason fails to consummate this Agreement in breach of its or Buyer's Affiliates' or New Castle's obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformance.

Buyer’s Default. If Seller and/or its Affiliates have complied with all of the covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests Property Assets to Buyer in accordance with this Agreement and Buyer or its Affiliates or New Castle for any reason fails to consummate this Agreement in breach of its or Buyer's Affiliates' or New Castle's obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformance.

Buyer’s Default. If Seller and/or its Affiliates have complied with all of Buyers, prior to the Closing, are in material default in their representations, warranties, covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with this Agreement and Buyer or its Affiliates or New Castle for any reason fails to consummate this Agreement in breach of its or Buyer's Affiliates' or New Castle's obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect to the other under this Agreement, except and such default continues for more than ten (10) Business Days after written notice from Sellers (other than a failure to close on the scheduled Closing Date for which there shall be no cure period), then Sellers, at Sellers’ election and as their sole and exclusive remedy, may elect to seek specific performance of Buyers’ obligation to consummate the transactions for Closing pursuant to this Agreement; provided, however, that notwithstanding the foregoing, in the event the remedy of specific performance with respect to any Property is unavailable to Sellers, then Sellers may elect to seek all direct and actual, but not punitive, indirect or consequential, damages incurred by Sellers by reason of such Buyer's or its Affiliates' indemnification obligations under ’s default; provided, in no event shall Sellers have the Covenants Surviving Terminationright to recover damages from Buyers in an amount higher than $200,000,000 in the aggregate. The parties agree that remedy of specific performance shall be deemed unavailable to Sellers if a court declines to grant such remedy. For the avoidance of doubt, the Deposit amount bears a reasonable relationship shall not serve as liquidated damages to the potential injury likely to be sustained Sellers in the event of such an uncured default by Buyers, and Sellers shall have no right to draw on the Deposit to pay any damages owed by Buyers, it being acknowledged and agreed that the remaining Deposit shall be returned to Buyers upon a breach termination of this Agreement pursuant to this Section 9.1. Notwithstanding anything in this Agreement to the contrary and that such amount is intended by for the avoidance of doubt, the parties to provide just compensation in the event of such a breach acknowledge and is not intended to compel performance or to agree that any default under this Agreement by any one Buyer shall constitute a penalty for nonperformancedefault by all Buyers hereunder.

Buyer’s Default. If Seller and/or Buyer defaults in performing its Affiliates have complied with all of the covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with this Agreement and Buyer or its Affiliates or New Castle for any reason fails to consummate obligations under this Agreement in breach of its or Buyer's Affiliates' or New Castle's obligations to do so hereunder or under any material respect and the Concurrent ContractsClosing does not occur as a result thereof, then for so long thereafter as such default continues uncured, Seller, as its sole and exclusive remedy for any such default, shall be entitled to Terminate this Agreement by giving Buyer written notice to such effect, and receive the parties hereto agree Deposit as follows: SELLER MAYliquidated damages for Buyer’s default and enforce any obligation of Buyer that, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANYpursuant to the terms of this Agreement, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE specifically survives the Termination of this Agreement. THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. PARTIES AGREE THAT IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAINASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE. ThereafterTHE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, neither party shall have any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformanceBUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER.

Buyer’s Default. If Seller and/or its Affiliates at the Closing, Buyer is in default of any obligation set forth in this Agreement, Buyer shall have complied the right, provided that such default is capable of being cured, to extend the date of Closing with respect to such Property (or at Seller's election all of the covenants Properties) for such period of time, not to exceed five (5) days with respect to a non-monetary default and conditions contained herein and in the Concurrent Contracts and is readytwo (2) business days, willing and able with respect to (directly or indirectly) sell and transfer the Interests a monetary default, as may be required for Buyer to Buyer in accordance with this Agreement and Buyer or satisfy its Affiliates or New Castle for any reason fails to consummate this Agreement in breach of its or Buyer's Affiliates' or New Castle's obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Terminationapplicable Property. The parties agree that the Deposit amount bears a reasonable relationship Subject to the potential injury likely to be sustained immediately preceding sentence, the parties acknowledge that in the event of Buyer's failure to fulfill its obligations hereunder it is impossible to compute exactly the damages which would accrue to each Seller in such a breach event. The parties have taken these facts into account in setting the amount of the Deposit for such Property required pursuant to Section 2.03 (and that allocated pursuant thereto), and hereby agree that: (a) such amount together with the interest earned thereon is intended the agreed upon damages which would accrue to Seller with respect to such Property; (b) such amount represents damages and not any penalty against Buyer; and (c) if this Agreement shall be terminated by Seller by reason of Buyer's failure to fulfill Buyer's obligations hereunder (which Seller may do with respect to all of the parties Properties for which Closing has not occurred, by notice to provide just compensation Buyer), the Deposit applicable to the subject Property together with the interest thereon, as allocated between the Sellers in Section 2.03, shall be each Seller's full and liquidated damages in lieu of all other rights and remedies which any Seller may have against Buyer at law or in equity. Because Buyer does not have the event right to buy, and Seller does not have the right to sell, less than all of such the Properties (except pursuant to the express provisions of this Agreement), a breach and is not intended default by Buyer or Seller with respect to compel performance or to any one Property will constitute a penalty default with respect to all Properties for nonperformancewhich Closing has not yet occurred.

Buyer’s Default. If Concurrently with the execution of this Agreement, Buyer has delivered to Seller and/or its Affiliates have complied with an irrevocable letter of credit issued by a financial institution reasonably acceptable to Seller in the amount of $84,000,000 and in the form attached hereto as Exhibit E (the "Letter of Credit"). In the event that the transactions contemplated by this Agreement are not consummated on the Closing Date (if and as extended upon the mutual agreement of Seller and Buyer) due to Buyer's failure or refusal to close, and all of the covenants conditions specified in Section 6 shall have been satisfied, Seller shall be entitled, at its sole option and conditions contained herein and in discretion, either to: (A) draw down the Concurrent Contracts and is readyamount of the Purchase Price, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer as adjusted in accordance with Section 2.03, under the Letter of Credit immediately upon tendering to Buyer the instruments and documents specified in Section 8.01(a), provided that Seller's Closing Notice advised Buyer of Seller's intent to make such draw in the event Buyer failed or refused to close; or (B) terminate this Agreement and Buyer or its Affiliates or New Castle for pursue any reason fails to consummate this Agreement in breach and all of its equitable and legal causes of action against Buyer, provided that Seller's right to recover damages against Buyer shall not be limited in any respect by the provisions of Section 11.02 hereof or otherwise, and provided further that the Letter of Credit shall be returned to the financial institution issuing the Letter of Credit upon such termination. Payment of a draw under the Letter of Credit shall not constitute an admission by Buyer of Seller's entitlement to such funds. Buyer shall have the right to pursue all of its equitable and legal causes of action against Seller as a result of any such draw and Buyer's Affiliates' or New Castle's obligations right to do so hereunder or under the Concurrent Contracts, then the parties hereto agree recover damages from Seller as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party a result thereof shall have not be limited in any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event provisions of such a breach and is not intended to compel performance Section 11.02 hereof or to constitute a penalty for nonperformance.otherwise. 12.03

Buyer’s Default. If In the event Buyer should fail to consummate the transaction contemplated herein for any reason except for (i) any permissible reasons set forth herein or, (ii) Seller’s default, Seller and/or may, as its Affiliates have complied with all sole and exclusive remedy, demand Escrow Agent to pay the Deposit to Seller, such sum being agreed-upon as liquidated damages for the failure of Buyer to perform the duties, liabilities and obligations imposed upon it by the terms and provisions of this Agreement, and because of the covenants difficulty, inconvenience and conditions contained herein uncertainty of ascertaining actual damages, no other damages, rights or remedies shall in any case be collectible, enforceable or available to Seller other than as provided in this Section. Seller agrees to accept and take the Deposit as its total damages and relief hereunder in such event and shall have no other cause of action against Buyer. It is the Concurrent Contracts express intent of this Section that there shall be no personal liability whatsoever on the part of the Buyer under this Agreement. Buyer further acknowledges and agrees that Buyer is ready, willing and able materially induced to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with enter into this Agreement and relies upon Seller’s agreement to accept such Deposit as Seller’s sole and exclusive remedy and that Buyer or its Affiliates or New Castle for any reason fails to consummate would not have ventured into this Agreement but for Seller’s agreement to so limit Seller’s remedies. Seller acknowledges that Buyer may, by written notice to Seller and Escrow Agent, at any time prior to Closing, cancel this Agreement without reason and in breach such event Seller’s sole remedy shall be to demand delivery of its or Buyer's Affiliates' or New Castle's the Deposit and in such event all obligations of Buyer to do so Seller hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect to the other under this Agreementbe null and void, except for Buyer's those expressly surviving Closing or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformanceearlier termination hereof.

Buyer’s Default. If In the event that the transactions contemplated by --------------- this Agreement are not consummated on the Closing Date (if and as extended upon the mutual agreement of Seller and/or its Affiliates have complied with all of and Buyer) due to Buyer's failure or refusal to close, and Seller is not in material default under the covenants terms and conditions contained herein and in the Concurrent Contracts and is readyprovisions hereof, willing and able then Seller shall be entitled to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with terminate this Agreement and Buyer or its Affiliates or New Castle for pursue any reason fails to consummate this Agreement in breach and all of its or legal and equitable causes of action against Buyer's Affiliates' or New Castle's , including without limitation, the remedy of specific performance by Buyer of it obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYERhereunder. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect Notwithstanding anything to the other under contrary contained in this Agreement, except for Buyer and Seller acknowledge that Seller may apply all, or any portion of, the Deposit against any damages incurred by Seller as a result of Buyer's failure or its Affiliates' indemnification obligations under refusal to close or as a result of Buyer's breach of any of the Covenants Surviving Terminationterms and provisions of this Agreement. The parties agree that application of the Deposit against any such damages incurred by Seller shall be governed by the terms and provisions of the Escrow Agreement. In no event shall the amount bears a reasonable relationship of the Deposit be deemed to limit or restrict the potential injury likely to be sustained monetary damages that Seller may assert against Buyer in the event of such a breach default by Buyer under the terms and provisions of this Agreement and in no event shall the forfeiture of all or any portion of the Deposit by Buyer be deemed or construed as payment of liquidated damages for Buyer's default under the terms and provisions hereof. Notwithstanding the foregoing, Seller acknowledges that such amount is intended by the parties to provide just compensation in the event that the amount of such damages incurred by Seller as a result of Buyer's breach of the terms and provisions of this Agreement is less than the amount of the Deposit, then that portion of the Deposit which is not intended applied by Seller towards such damages shall be returned to compel performance or to constitute a penalty for nonperformanceBuyer.

Buyer’s Default. If Seller and/or its PREIT and/or PREIT's Affiliates have complied with all of the covenants and conditions contained herein and in the Concurrent Contracts and Seller is ready, willing and able to (directly or indirectly) sell and transfer the Interests Property Assets to Buyer in accordance with this Agreement and Buyer or its Affiliates or New Castle for any reason fails to consummate this Agreement in breach of its or Buyer's Affiliates' or New Castle's Affiliates obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformance.

Buyer’s Default. If Seller and/or Buyer defaults in performing its Affiliates have complied with all of the covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with obligations under this Agreement to proceed to Closing, Seller, as their sole and Buyer or its Affiliates or New Castle exclusive remedy for any reason fails such default, shall be entitled to consummate terminate this Agreement in breach of its or by giving Buyer written notice to such effect, and receive the Deposit as liquidated damages for Buyer's Affiliates' or New Castle's obligations ’s default and upon such receipt no party to do so hereunder or under the Concurrent Contracts, then the parties hereto agree as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party this Agreement shall thereafter have any further rights or obligations liabilities under this Agreement, except, however, that the parties shall remain obligated with respect to the other under provisions herein which specifically survives the termination of this Agreement. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. For the avoidance of doubt and notwithstanding anything else in this Agreement, except for Buyer's or its Affiliates' any express indemnification obligations under of Buyer hereunder and any express surviving obligations of Buyer hereunder, Seller shall not have any right to pursue Buyer for any damages in connection with this Agreement or the Covenants Surviving Termination. The parties agree that Transactions hereunder except for a claim for the Deposit amount bears a reasonable relationship as set forth in this Section 11.1. For the avoidance of doubt and notwithstanding anything else in this Agreement, Seller shall not have any right to terminate this Agreement except to the potential injury likely to be sustained extent expressly permitted in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformancethis Agreement.

Buyer’s Default. If Concurrently with the execution of this Agreement, Buyer has delivered to Seller and/or its Affiliates have complied with an irrevocable letter of credit issued by a financial institution reasonably acceptable to Seller in the amount of $84,000,000 and in the form attached hereto as Exhibit E (the "Letter of Credit"). In the event that the transactions contemplated by this Agreement are not consummated on the Closing Date (if and as extended upon the mutual agreement of Seller and Buyer) due to Buyer's failure or refusal to close, and all of the covenants conditions specified in Section 6 shall have been satisfied, Seller shall be entitled, at its sole option and conditions contained herein and in discretion, either to: (A) draw down the Concurrent Contracts and is readyamount of the Purchase Price, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer as adjusted in accordance with Section 2.03, under the Letter of Credit immediately upon tendering to Buyer the instruments and documents specified in Section 8.01(a), provided that Seller's Closing Notice advised Buyer of Seller's intent to make such draw in the event Buyer failed or refused to close; or (B) terminate this Agreement and Buyer or its Affiliates or New Castle for pursue any reason fails to consummate this Agreement in breach and all of its equitable and legal causes of action against Buyer, provided that Seller's right to recover damages against Buyer shall not be limited in any respect by the provisions of Section 11.02 hereof or otherwise, and provided further that the Letter of Credit shall be returned to the financial institution issuing the Letter of Credit upon such termination. Payment of a draw under the Letter of Credit shall not constitute an admission by Buyer of Seller's entitlement to such funds. Buyer shall have the right to pursue all of its equitable and legal causes of action against Seller as a result of any such draw and Buyer's Affiliates' or New Castle's obligations right to do so hereunder or under the Concurrent Contracts, then the parties hereto agree recover damages from Seller as follows: SELLER MAY, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANY, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party a result thereof shall have not be limited in any further rights or obligations with respect to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship to the potential injury likely to be sustained in the event of such a breach and that such amount is intended by the parties to provide just compensation in the event provisions of such a breach and is not intended to compel performance Section 11.02 hereof or to constitute a penalty for nonperformanceotherwise.

Buyer’s Default. If Buyer fails to honor any of Buyer's promises or to perform any of Buyer's obligations under this Agreement (including making scheduled deposits and other payments), Buyer will be in "default." In the event of a default or breach of this Agreement by Buyer, the Seller will give the Buyer written notice of such default or breach and the opportunity to remedy such default or breach within twenty (20) days after the date of Buyer’s receipt of such notice. If Buyer is still in default twenty (20) days after Buyer receives such written notice thereof, Seller shall be entitled to the remedies provided for in this subsection 15(a), but subject to the limitations set forth herein. Upon Buyer's failure to remedy such default, within such twenty (20) day period, Seller may elect to terminate Buyer’s rights and interest to purchase the Unit, whereupon Seller, as its sole remedies, may (i) resell the Unit for such price, whether higher or lower, as may be acceptable to Seller in its sole and absolute discretion, and (ii) proceed against Buyer for all actual damages resulting from such default, but only to the extent hereinafter provided. Buyer understands that Buyer’s default may result in substantial damages to Seller for a number of reasons, including (without limitation) because Seller has (a) taken the Unit off the market for Buyer in reliance upon Buyer performing its obligations under this Agreement, (b) committed to or expended funds, arranged labor and made purchases or commitments for materials, finishes and/or its Affiliates have complied with all appliances, and (c) spent money on sales, advertising, promotion and construction and other costs and expenses incident to this sale and the development of the Property, in reliance upon Buyer’s agreement to fulfill its covenants and conditions contained herein obligations under this Agreement, including its agreement to allow Seller to utilize Buyer’s deposits and other advance payments, to the extent permitted under this Agreement and under applicable law. In consideration thereof, Buyer agrees that, in the Concurrent Contracts event Seller terminates Buyer’s rights and is readyinterest to purchase the Unit under this Agreement due to Buyer’s default, willing subject to the limitations set forth in the subsequent paragraph, Seller shall have a claim against Buyer for actual damages incurred by Seller as a result of such default, to the extent that Seller shall be entitled to collect and/or retain, as applicable, all deposits and able other advance payments paid or required to (directly or indirectly) sell be paid under this Agreement, including sums which are then being held in escrow, and transfer any and all such sums withdrawn from escrow, up to the Interests to Buyer amount of actual damages incurred by Seller, as determined in accordance with Florida law, as a result of Buyer’s default. Buyer acknowledges that the amount of actual damages incurred by Seller as a result of Buyer’s default may not be ascertainable until such time as Seller has been able to resell the Unit, which may not occur until a substantial period of time after any such termination. The following is being made a part of this Agreement pursuant to 15 U.S.C.A. Section 1703, and Buyer supersedes anything to the con- trary herein (all references to the "lot" shall refer to the Unit): “If the purchaser or its Affiliates lessee loses rights and interest in the lot as a result of a default or New Castle for any reason fails to consummate this Agreement in breach of its the contract or Buyer's Affiliates' agreement which occurs after the purchaser or New Castle's obligations to do so hereunder or lessee has paid 15 per centum of the purchase price of the lot, excluding any interest owed under the Concurrent Contractscontract or agreement, then the parties hereto agree seller or lessor (or successor thereof) shall refund to such purchaser or lessee any amount which remains after subtracting (A) 15 per centum of the purchase price of the lot, excluding any interest owed under the contract or agreement, or the amount of damages incurred by the seller or lessor (or successor thereof) as follows: SELLER MAYa result of such breach, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANYwhichever is greater, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafter, neither party shall have any further rights from (B) the amount paid by the purchaser or obligations lessee with respect to the other under this Agreementpurchase price of the lot, except for Buyer's or its Affiliates' indemnification obligations excluding any interest paid under the Covenants Surviving Termination. The parties agree that the Deposit amount bears a reasonable relationship contract or agreement.” Nothing herein is intended to the potential injury likely expand upon Seller’s right to be sustained collect damages, as set forth in the event preceding paragraph. For purposes of such a breach and that such amount is intended by this subsection 15(a), "damages" means actual damages resulting from the parties to provide just compensation in the event of such a breach and is not intended to compel performance or to constitute a penalty for nonperformancedefault, as determined under Florida law.

Buyer’s Default. If Buyer recognizes that MBCR and the Property will be removed by Seller and/or its Affiliates have complied with all from the market during the existence of the covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with this Agreement and that, if Closing is not consummated because of a default by Buyer or its Affiliates or New Castle for any reason fails under this Agreement, Seller’s sole remedy shall be to terminate this Agreement and retain the Deposit (including all accrued interest) as liquidated damages. The Parties have agreed that Seller’s actual damages, in the event of a failure to consummate this Agreement in breach of its sale due to Buyer’s default, would be extremely difficult or Buyer's Affiliates' or New Castle's obligations impracticable to do so hereunder or under the Concurrent Contractsdetermine. After negotiation, then the parties hereto agree as follows: SELLER MAYhave agreed that, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANYconsidering all the circumstances existing on the date of this Agreement, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYERthe amount of the Deposit is a reasonable estimate of the damages that Seller would incur in such event. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. ThereafterUpon Seller’s receipt of the Deposit, neither party this Agreement shall be terminated and thereupon the parties shall have any no further rights or obligations with respect one to the other under this Agreement, except for Buyer's or its Affiliates' indemnification obligations under the Covenants Surviving Termination. The parties Parties agree that the Deposit amount bears sum stated above as liquidated damages shall be the sole and exclusive relief to which Seller might otherwise be entitled as a reasonable relationship result of the Closing not being consummated because of Buyer’s default under this Agreement, Seller hereby specifically waiving any and all rights which it may have to the potential injury likely to be sustained in the event damages or specific performance as a result of such a breach and that such amount is intended by the parties to provide just compensation in the event of such a breach and Buyer’s default under this Agreement. The foregoing is not intended to compel performance limit Buyer’s agreements or obligations under Sections 4.8, 15.5 or 15.15 or Articles 11 or 13, or any right or remedy of Seller to constitute a penalty recover the sums therein provided for nonperformance(but no consequential damages) in the event Buyer breaches any such Sections or Articles.

Buyer’s Default. If Seller and/or Buyer shall (a) fail or refuse to close on the Scheduled Closing Date (as the same may be adjourned) as required by the terms of this Agreement, (b) intentionally breach its Affiliates have complied with all obligations under Section 17.4 hereof, or (c) otherwise be in material default hereunder of the covenants and conditions contained herein and in the Concurrent Contracts and is ready, willing and able to (directly or indirectly) sell and transfer the Interests to Buyer in accordance with this Agreement and Buyer or its Affiliates or New Castle for any reason fails to consummate this Agreement in breach of its material obligations, which default under (b) or (c) shall continue for five (5) Business Days after written notice thereof is delivered by Seller to Buyer's Affiliates' or New Castle's obligations to do so hereunder or under the Concurrent Contracts, then the parties hereto agree that the damages that Seller would sustain as follows: SELLER MAYa result thereof would be substantial, BY WRITTEN NOTICE TO BUYER AND TITLE COMPANYbut would be difficult to ascertain. Accordingly, AS ITS SOLE REMEDY TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR THE BREACH OF THIS AGREEMENT BY BUYER. IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN SELLER AND BUYER THAT SELLER'S ACTUAL DAMAGES FOR ANY SUCH BREACH BY BUYER HEREUNDER WOULD BE SUBSTANTIAL BUT EXTREMELY DIFFICULT TO ASCERTAIN. Thereafterthe parties hereto agree that in the event of such default, neither party failure or refusal by Buyer, Seller’s sole remedy shall be to terminate this Agreement and retain the Deposit as its sole and full and complete liquidated damages, in which case Buyer and Seller shall have any no further rights or obligations with respect to the other under this Agreement, except for those expressly provided herein to survive the termination of this Agreement. Nothing contained in this Section shall limit or diminish Buyer's ’s obligations or its Affiliates' indemnification obligations liabilities under the Covenants Surviving TerminationArticle 11 and Section 17.12 hereof. The parties agree that the Deposit amount bears a reasonable relationship Notwithstanding anything to the potential injury likely contrary contained herein (but subject to the following sentence), Buyer may cure any breach of this Agreement (other than under Section 17.4) by payment of the full Purchase Price on the Scheduled Closing Date (as the same may be sustained in adjourned) and performing all its other material obligations at the event of such a breach and that such amount is intended by Closing. Notwithstanding the parties foregoing, Seller shall not be obligated to provide just compensation in (but may) convey the event of such a breach and is not intended Property to compel performance Buyer or to constitute a penalty for nonperformanceBuyer Affiliate under Section 17.4 if the representation made by Buyer in Section 17.23.2 is false (whether or not “to the best of Buyer’s knowledge”).