Common use of By Purchaser Clause in Contracts

By Purchaser. If prior to Closing, there occurs a Purchaser's Default, then Seller shall be entitled: (a) to terminate its obligations to sell and Purchaser's obligation to purchase the Loan Documents and Claims, Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase obligations under this Agreement; or (b) to proceed to Closing and in the event Closing occurs, to the rights and remedies set forth in Section 7.3. Further, in the event Seller elects not to proceed to Closing and retain the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx Money.

By Purchaser. If prior Time of Purchaser’s performance is of the essence of this Agreement. In the event Purchaser fails to Closingmake any payment required under this Agreement within five (5) days after notice from Seller that such payment is due, there occurs a Purchaser's Defaultfails to close its purchase of the Unit when required herein, then or to perform any other obligation of Purchaser under this Agreement and fails to cure such default within 10 days after notice from Seller shall specifying in reasonable detail such default, Seller may declare Purchaser to be entitled: (a) in default of this Agreement by notice to Purchaser and may, in addition to exercising all other remedies available to Seller under this Agreement, at law, or in equity, terminate this Agreement. UPON SUCH TERMINATION, THE ENTIRE AMOUNT PAID BY PURCHASER UNDER THIS AGREEMENT, PLUS ANY INTEREST EARNED ON SUCH AMOUNT, MAY, AT SELLER’S SOLE OPTION, BE RELEASED TO SELLER AND RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. Seller’s election not to terminate its obligations this Agreement shall not preclude Seller from thereafter electing to sell terminate this Agreement and Purchaser's obligation to purchase receive the Loan Documents and Claimsentire amount paid by Purchaser under this Agreement, Rights and Benefits and plus any interest earned thereon. Seller’s election regarding whether or not to proceed with Closing, whereupon Seller shall be entitled to retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), such amounts as liquidated damages for Purchaser's breach of its purchase obligations under this Agreement; or (b) to proceed to Closing may be exercised arbitrarily and in the event Closing occurs, to the Seller’s sole and absolute discretion. Without limitation of any other rights and remedies set forth in Section 7.3. Furtherof Seller, in the event Purchaser fails to close this transaction at the scheduled closing, then closing may be extended at Seller’s option, for any number of days past the scheduled Closing Date as determined by Seller elects not in Seller’s sole discretion (the “Extension Period”). As additional liquidated damages for the closing delay, that portion of the closing costs which Purchaser is obligated to proceed pay shall be increased by $50.00 per day for each day of the Extension Period commencing on the scheduled Closing Date and continuing until and including the actual Closing Date. That portion of the closing costs which Seller would otherwise have been obligated to pay shall be decreased by the same amount. At any time during the Extension Period, Seller may elect to require that the closing occur by giving Purchaser written notice of the date on which the closing must occur (the “Revised Closing Date”). Seller’s remedies under this Section 4.2 are cumulative and retain may be pursued concurrently, independently, or successively, in any order whatsoever. The parties acknowledge the Xxxxxxx Money as provided herein, and because difficulty of determining the actual damages suffered by Seller as resulting from a result of such breach default by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees under this Agreement and agree that the amount of the Xxxxxxx Money is liquidated damages described in this Section 4.2 represent a reasonable estimate of such damages to which Seller is entitled in such event and that the amount of such liquidated damages does are not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx Money.

By Purchaser. If Purchaser hereby represents and warrants to AER: (i) this Agreement has been duly executed and delivered by Purchaser, and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors' rights generally and the discretion of the courts in granting equitable remedies; (ii) Purchaser will acquire the Shares, the Conversion Shares, the Warrant and the Warrant Shares (collectively the "Securities") for its own account, to hold for investment, and with no present intention of dividing its participation with others or reselling or otherwise participating, directly or indirectly, in a distribution of the Securities, and it will not make any sale, transfer, or other disposition of the Securities in violation of the Securities Act or any applicable state securities laws (the "State Acts"). There will be placed on the Warrant and any certificates for the Shares, the Conversion Shares and the Warrant Shares, a legend stating in substance: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE ON ONE OR MORE EXEMPTIONS THEREUNDER AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER. THE SECURITIES EVIDENCED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN A SECURITIES PURCHASE AGREEMENT TO WHICH THE CORPORATION IS A PARTY. ANY TRANSFER OF THE SECURITIES REPRESENTED HEREBY IN VIOLATION OF SAID AGREEMENT SHALL BE VOID. THE CORPORATION WILL MAIL TO THE HOLDER OF THESE SECURITIES A COPY OF SUCH RESTRICTIONS WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF WRITTEN REQUEST THEREFOR ADDRESSED TO THE CORPORATION. (iii) Purchaser, in offering to subscribe for the Securities hereunder, has been given access to all material and relevant information concerning AER, thereby enabling Purchaser to make an informed investment decision concerning the Securities. Purchaser has relied solely upon an independent investigation made by it and its representatives, if any, and has, prior to Closingthe date hereof, there occurs a Purchaser's Default, then Seller shall be entitled: (a) been given access to terminate and the opportunity to examine data and information relating to AER. In making its obligations to sell and Purchaser's obligation investment decision to purchase the Loan Documents Securities, Purchaser is not relying on any oral or written representations or assurances from AER or any other person or any representation of AER or any other person other than as set forth in this Agreement. Without limiting the foregoing, Purchaser has reviewed AER's Annual Report on Form 10-K for the year ended December 31, 2000 and ClaimsAER's Quarterly Report on Form 10-Q for the quarter ended March 31, Rights 2001. Purchaser is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act. (iv) Purchaser understands and Benefits acknowledges that an investment in the Securities involves a high degree of risk. Purchaser represents that Purchaser is able to bear the economic risk of an investment in the Securities, which Purchaser acknowledges are currently illiquid and not may remain illiquid indefinitely, including a possible total loss of its investment. In making this statement Purchaser hereby represents and warrants to proceed with Closing, whereupon Seller shall be entitled to retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages AER that Purchaser has adequate means of providing for Purchaser's breach current needs and contingencies; Purchaser is able to afford to hold the Securities for an indefinite period and Purchaser further represents that Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of its purchase obligations under this Agreement; or (b) to proceed to Closing evaluating the merits and risks of the investment in the event Closing occurs, to the rights and remedies set forth in Section 7.3Securities. Further, Purchaser represents that Purchaser has no present need for liquidity in the event Seller elects Securities and Purchaser is willing to accept such investment risks. (v) Purchaser understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved, passed upon or made any recommendation or endorsement of AER or the Securities. (vi) This Agreement is made by AER with Purchaser in reliance upon Purchaser's representations and covenants made in this Section 3(b), which reliance by its execution of this Agreement Purchaser hereby confirms. (vii) Purchaser understands that the Securities have not been registered under the Securities Act or any State Acts and are being offered and sold pursuant to proceed to Closing exemptions therefrom based in part upon the representations of Purchaser contained herein. (viii) Purchaser knows of no public solicitation or advertisement of an offer in connection with the proposed issuance and retain sale of the Xxxxxxx Money as provided hereinSecurities. (ix) Purchaser has reviewed with its tax advisors the U.S. federal, state, local and because foreign tax consequences of an investment in the actual damages suffered Securities and the transactions contemplated by Seller this Agreement. Purchaser is relying solely on such advisors and not on any statements or representations of AER or any of its agents and understands that Purchaser (and not AER) shall be responsible for Purchaser's own tax liability that may arise as a result of such breach this investment or the transactions contemplated by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that the amount this Agreement. (x) Purchaser's acquisition of the Xxxxxxx Money Securities is not a transaction (or any element of a series of transactions) that is a reasonable estimate part of damages a plan or scheme to which Seller is entitled in such event and that evade the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such registration provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing)Securities Act. If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx Money4.

By Purchaser. If prior to Closing, there occurs a Purchaser breaches in any material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's Defaultrepresentations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitledentitled to elect one of the following options: (a) to terminate its obligations obligation to sell and Purchaser's obligation to purchase the Loan Documents and Claims, Rights and Benefits Property and not to proceed with Closing, whereupon Seller shall be entitled to retain prompt receipt of the Xxxxxxx Earnest Money from Escrow Agent pursuant to the Earnest Money Txxxx Xxreement and/or Purchaser, as applicable, and xxxxxx the Earnest Money as its sole and exclusive remedy (subject to its further right to recover additional damages and as liquidated daxxxxx xor Purchaser's breach of this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code) and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase provided and any indemnification obligations under set forth in this AgreementAgreement shall not be limited hereby; or (b) to proceed to Closing and in the event Closing occurs, to exercise the rights and remedies set forth in Section 7.36.3. Further, in the event Seller elects not to proceed to Closing and retain receives and retains the Xxxxxxx Earnest Money as provided herein, and because the actual damages suffered by suffxxxx xy Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees and Seller agree that the amount of the Xxxxxxx Earnest Money is a reasonable estimate shall be the amount of damages to which Seller is entitled in entitxxx xx such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon full receipt of the election of Earnest Money by Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the includxxx xxx purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination)terminated, and the parties shall have no further rights, obligations or liabilities hereunder, except provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the event the Bankruptcy Code) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (receipt or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Earnest Money (or attempts to do any of the foregoing), then Seller in xxx xxxion brought thereon, the prevailing party shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code)). If Seller is the prevailing party, such amounts shall be in addition to retaining retention of the Xxxxxxx Earnest Money, and if Purchaser is the prevailing party, such axxxxxx shall be in addition to the return of the Earnest Money by Seller.

By Purchaser. If prior to Closing, there occurs a Purchaser breaches in any ------------ material respect any of its covenants, obligations, liabilities or duties hereunder without such breach being cured within applicable notice and cure periods, or in any documents or certificates executed and delivered by any of the Purchaser Parties in connection herewith, or if any of Purchaser's Defaultrepresentations and warranties prove to be false in any material respect as of the date deemed to be made, then Seller shall be entitledentitled to elect one of the following options: (a) to terminate its obligations obligation to sell and Purchaser's obligation to purchase the Loan Documents and Claims, Rights and Benefits Property and not to proceed with Closing, whereupon Seller shall be entitled to prompt receipt of the Xxxxxxx Money from Escrow Agent pursuant to the Xxxxxxx Money Trust Agreement and/or Purchaser, as applicable, and retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase obligations under this Agreement, any and all other claims for losses, damages, costs and expenses being deemed waived hereby, provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby; or (b) to proceed to Closing and in the event Closing occurs, to exercise the rights and remedies set forth in Section 7.3------- 6.3. Further, in the event Seller elects not to proceed to Closing and retain receives --- and retains the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees and Seller agree that the amount of the Xxxxxxx Money is a reasonable estimate shall be the amount of damages to which Seller is entitled in such event and that the amount of such liquidated damages is reasonable and does not constitute a penalty. Upon the election full receipt of Seller to retain the Xxxxxxx Money by Seller pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination)terminated, and the parties shall have no further rights, obligations or liabilities hereunder, except provided however, the recovery of reasonable attorneys' fees (whether incurred in connection with nonjudicial action, prior to trial or at trial, including any proceedings under the event the Bankruptcy Code, excluding, however, any attorneys' fees incurred on appeal) and expenses as hereinafter provided and any indemnification obligations set forth in this Agreement shall not be limited hereby. If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (receipt or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller in any action brought thereon, the prevailing party shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code)). If Seller is the prevailing party, such amounts shall be in addition to retaining retention of the Xxxxxxx Money, and if Purchaser is the prevailing party, such amounts shall be in addition to the return of the Xxxxxxx Money by Seller.

By Purchaser. If Neither this Agreement nor any of Purchaser’s rights, interests or obligations hereunder (including Purchaser’s rights in respect of the Purchased Receivables) may be assigned, delegated or otherwise transferred, in whole or in part, by operation of Law, merger, change of control, or otherwise, by Purchaser without the prior written consent of Seller (such consent not to be unreasonably withheld, delayed or conditioned), and any such purported assignment, delegation or transfer without such consent shall be void ab initio and of no effect; provided, however, that following the Closing, there occurs Purchaser may, upon [***] prior written notice to Seller, but without the prior written consent of Seller, assign this Agreement and all of Purchaser’s rights, interests and obligations hereunder, in whole, to an Affiliate of Purchaser or to a fund that is exclusively managed by Purchaser or by its Affiliate (in each case, an “Affiliate Transferee”) if (i) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to Seller, to perform all obligations under, and to be bound by all the provisions of, this Agreement (including Section 6.11 and each of the other covenants set forth in Article VI that are applicable to Purchaser's Default, then Seller shall be entitled: (a) to terminate its obligations to sell and as if such Affiliate Transferee were the “Purchaser's obligation to purchase the Loan Documents and Claims, Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase obligations ” under this Agreement; or , (bii) such Affiliate Transferee agrees in a writing, in form and substance reasonably satisfactory to proceed to Closing Seller and in the event Closing occursEscrow Agent, to perform all obligations under, and to be bound by the rights provisions of, the Escrow Agreement as if such Affiliate Transferee were a “Purchaser” under the Escrow Agreement, (iii) such Affiliate Transferee’s creditworthiness (after giving effect to such assignment) is at least as favorable to Seller as that of Purchaser at the time of such assignment and remedies (iv) such Affiliate Transferee represents and warrants to Seller that each of the representations and warranties set forth in Article V (including those set forth in Section 7.3. Further5.10) are true and correct as of the date of such assignment as if such Affiliate Transferee were the “Purchaser” under this Agreement (with such modifications to Section 5.1 and the first sentence of Section 5.10 as are necessary to account for such Affiliate Transferee’s entity type and jurisdiction of organization (but, in any event, the event first sentence of Section 5.10 shall confirm that such Affiliate Transferee is exempt from United States federal withholding tax on all payments with respect to the Purchased Receivables) and with such language giving effect to such modifications as shall be agreed to by Seller elects (such agreement of Seller not to proceed to Closing and retain the Xxxxxxx Money as provided hereinbe unreasonably withheld, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable delayed or extremely difficult or impossible to determine, Purchaser agrees that the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Codeconditioned)), in addition to retaining the Xxxxxxx Money.

By Purchaser. Purchaser agrees to indemnify and hold harmless Seller and its affiliates, and their respective shareholders, directors, officers, employees, successors, assigns, and agents (the “Seller Indemnified Persons”) from and against any and all claims, losses, damages, liabilities, expenses or costs (“Losses”), plus reasonable attorneys’ fees and expenses incurred in connection with Losses and/or enforcement of this Agreement, incurred by Seller by reason of or arising out of or in connection with (i) the breach of any representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 5 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall include a reasonably detailed description of such claim, and a period of thirty (30) days to cure such breach, and pay on such claim. If prior to Closing, there occurs a Purchaser's Defaultany claim is brought against Seller for which indemnification is sought from Purchaser under this Section 9.2, then Seller shall be entitled: control the contest, defense, settlement or compromise of any such claim (a) to terminate its obligations to sell including the engagement of counsel in connection therewith), at Purchaser’s cost and Purchaser's obligation to purchase expense, including the Loan Documents cost and Claimsexpense of reasonable attorneys’ fees in connection with such contest, Rights defense, settlement or compromise, and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to retain have the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages participate in the contest, defense, settlement or compromise of any such claim at its own cost and expense, including the cost and expense of reasonable attorneys' ’ fees in connection with such participation; provided, however, that Seller shall not settle or compromise any such claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, or if at any time Purchaser shall fail to defend in good faith any such claim, Seller may assume the defense thereof and may employ counsel with respect thereto and all fees and expenses as hereinafter provided), as liquidated damages for of such counsel shall be paid by Purchaser's breach of its purchase obligations under this Agreement; or (b) to proceed to Closing and in the event Closing occurs, to the rights and remedies set forth in Section 7.3. Further, in the event Seller elects not to proceed to Closing and retain the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of may conduct and defend such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled claim in such event and manner as it may deem appropriate; provided, however, that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall not settle or compromise any such claim without the prior written consent of Purchaser, which consent shall not be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial unreasonably withheld or on appeal or review, including any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx Moneydelayed.

By Purchaser. If prior Purchaser agrees to Closingindemnify and hold harmless Seller and its affiliates, there occurs a Purchaser's Defaultand their respective shareholders, then directors, officers, employees, successors, assigns, and agents (the "Seller shall be entitled: Indemnified Persons") from and against any and all claims, losses, damages, liabilities, expenses or costs (a) to terminate its obligations to sell and Purchaser's obligation to purchase the Loan Documents and Claims"Losses"), Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and plus reasonable attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach incurred in connection with Losses and/or enforcement of its purchase obligations under this Agreement; or (b) to proceed to Closing and in the event Closing occurs, to the rights and remedies set forth in Section 7.3. Further, in the event Seller elects not to proceed to Closing and retain the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including incurred by Seller by reason of or arising out of or in connection with (i) the purchase and sale obligations breach of any representation or warranty contained herein or in any certificate or other document delivered to Seller pursuant to the provisions of this Agreement, (ii) the failure of Purchaser and to perform any act required under this Agreement or (iii) a claim by any third party with respect to any Liability, contract, other commitment or state of facts which constitutes a breach of any representation or warranty contained in Section 7 hereof or in any certificate or other document delivered by or on behalf of Purchaser to Seller pursuant to the provisions of this Agreement. Seller agrees to give prompt notice to Purchaser of any claim for which Seller seeks indemnification hereunder, which notice shall be deemed automatically terminated (except for include a reasonably detailed description of such provisions as survive termination)claim, and the parties shall have no further rightsa period of thirty (30) days to cure such breach, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing)and pay on such claim. If any claim is brought against Seller for which indemnification is sought from Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing)under this Section 11.2, then Seller shall be entitled to recover control the contest, defense, settlement or compromise of any additional actual damages such claim (excluding "lost profits," special and consequential damages) arising from including the engagement of counsel in connection therewith), at Purchaser's breach (cost and expense, including the cost and expense of reasonable attorney's attorneys' fees in connection with such contest, defense, settlement or compromise, and Seller shall have the right to participate in the contest, defense, settlement or compromise of any such claim at its own cost and expense, including the cost and expense of reasonable attorneys' fees in connection with such participation; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the prior written consent of Purchaser, which consent shall not be unreasonably withheld or delayed. If Purchaser fails to assume the defense of such claim within 30 days of receipt of notice of such claim, or if at any time Purchaser shall fail to defend in good faith any such claim, Seller may assume the defense thereof and may employ counsel with respect thereto and all fees and expenses (whether incurred of such counsel shall be paid by Purchaser, and Seller may conduct and defend such claim in connection with nonjudicial actionsuch manner as it may deem 10 <PAGE> appropriate; PROVIDED, HOWEVER, that Seller shall not settle or compromise any such claim without the prior to trialwritten consent of Purchaser, at trial which consent shall not be unreasonably withheld or on appeal or review, including any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx Moneydelayed.

By Purchaser. If prior In the event of a termination of this Agreement pursuant to ClosingSection 8.1(b) by Purchaser, this Agreement shall forthwith become void and of no effect other than as otherwise provided herein and there occurs a Purchaser's Default, then Seller shall be entitled: (a) to terminate its obligations to sell and Purchaser's obligation to purchase no liability on the Loan Documents and Claims, Rights and Benefits and not to proceed part of any party hereto; provided that the Deposit with Closing, whereupon Seller accrued interest thereon shall be entitled returned to retain the Xxxxxxx Money Purchaser (after notice and lapse of time as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase obligations under this Agreement; or (b) to proceed to Closing and in the event Closing occurs, to the rights and remedies set forth in Section 7.3. Further, in the event Seller elects not to proceed to Closing and retain the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoingdescribed below). If Purchaser wrongfully hindershas terminated this Agreement pursuant to the provisions of Section 8.1(b) (including the first and second provisos therein) because of a breach of a representation and warranty contained in Section 4.2 by Seller, delays, contests or interferes with SellerPurchaser's retention sole remedy therefor shall be the return of the Xxxxxxx Money Deposit and accrued interest thereon. If Purchaser has terminated this Agreement because of a breach of a representation and warranty contained in Section 4.1 or of any obligation of Seller hereunder, Purchaser may pursue all its remedies provided in Section 9.2. Purchaser shall notify Seller that Purchaser has terminated this Agreement pursuant to Section 8.1(b) and specify the grounds for such termination, and Seller shall have five (or attempts 5) days after receipt of such notice to do any notify Purchaser that it disputes such termination, such notice to state the grounds for such dispute. If Seller does not so notify Purchaser that a dispute exists and the grounds therefor within such five (5) day period, Seller shall pay the Deposit and accrued interest thereon to Purchaser. If Seller sends such a notice of dispute to Purchaser within the five (5) day period, Seller shall continue to hold the Deposit in accordance with this Agreement until such time as the dispute has been resolved. The Deposit and accrued interest thereon shall then be disbursed in accordance with the resolution of the foregoing), then Seller dispute. The successful party shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (reimbursed for all expenses, including reasonable attorney's fees and expenses (whether attorneys' fees, incurred in connection with nonjudicial action, prior any successful action brought under this Section 8.2(c). Purchaser shall have no right to trial, at trial Consequential Damages. In no event shall Purchaser have the right to offset amounts due it under this Section 8.2(c) or on appeal under any other contract or review, including agreement with Seller or any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx MoneyAffiliate of Seller.

By Purchaser. If prior In the event that Purchaser defaults in the observance or performance of its covenants and obligations hereunder after written notice by Seller to Closing, there occurs a Purchaser's Default, then Seller shall be entitled: (a) to terminate its obligations to sell Purchaser of such default and Purchaser's obligation failure to purchase the Loan Documents and Claimscure such default within two (2) Business Days after receipt of such notice, Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled to retain the Xxxxxxx Money terminate this Agreement with respect to any Facility for which a Facility Closing has not yet occurred and to which such default relates by written notice to Purchaser of such termination and shall also be entitled, as its sole and exclusive remedy (subject hereunder, to its further right receive payment from Escrow Agent of any Earnxxx Xxxey relating to recover additional damages such Facility then being held by Escrow Agent and attorneys' fees and expenses not previously disbursed at any prior Facility Closing hereof as hereinafter provided), as full liquidated damages for such default of Purchaser's breach . The parties hereby acknowledge the difficulty of its purchase obligations under this Agreement; or (b) to proceed to Closing and ascertaining the actual damages in the event Closing occursof such a default, that it is impossible more precisely to estimate the rights damages to be suffered by Seller upon Purchaser's default and remedies set forth in Section 7.3that the aforesaid payments are intended not as a penalty, but as full liquidated damages and that such amounts constitutes a good faith estimate of the potential damages arising therefrom. Further, Seller's right to so terminate this Agreement and to receive aforesaid payment as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller elects hereby waives, relinquishes, releases and covenants not to proceed to Closing pursue any and retain the Xxxxxxx Money as provided hereinall other rights and remedies, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determineincluding, Purchaser agrees that the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does but not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant limited to (ai) above, any right to sue Xxxchaser for specific performance of this Agreement, including (ii) any right to sue Xxxchaser for damages or to prove that Seller's actual damages exceed the purchase amounts agreed upon herein as full liquidated damages, and sale obligations of Purchaser and (iii) any other right or remedy which Seller may otherwise have against Purchaser, either hereunder, shall be deemed automatically terminated (except for such provisions as survive termination), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code))law, in addition to retaining the Xxxxxxx Moneyequity or otherwise.

By Purchaser. If Purchaser hereby acknowledges that this Agreement is a contract to extend certain financial accommodations and is personal to Purchaser and Purchaser shall have no right to assign or otherwise Transfer this Agreement or any of its rights, benefits or obligations hereunder (including any representations and warranties included herein) without the prior written consent of Seller, which consent may be withheld, conditioned or delayed in Seller's sole and absolute discretion, except as hereinafter provided. Seller will consent to a one time only assignment by Purchaser of this Agreement and its rights, benefits and obligations hereunder, prior to Closing, there occurs to a Person in which Purchaser owns, directly or indirectly, a majority of the outstanding stock or other equity interests, provided that, as a condition precedent to the effectiveness of any such assignment, Purchaser shall notify Seller in writing of any such assignment at least ten (10) days prior to such assignment and Purchaser and the assignee shall execute and deliver to Seller an express agreement, in form and content satisfactory to Seller, by such assignee and Purchaser to remain jointly and severally liable for the payment and performance of all of Purchaser's Defaultobligations and liabilities hereunder. Any assignment or other Transfer, then Seller or attempted or purported assignment or other Transfer, by Purchaser of this Agreement, or any of its right and obligations hereunder, shall be entitled: (a) NULL AND VOID, unless made with the prior written consent of Seller and strictly in accordance with the terms hereof. Any such permitted assignee shall be deemed the "Purchaser" for all purposes hereunder from and after the assignment by Purchaser of its interest hereunder to terminate such assignee; provided, however, the original named Purchaser herein shall remain jointly and severally liable after such assignment with such permitted assignee for the performance of all covenants, obligations, duties, liabilities, representations and warranties of Purchaser under this Agreement and all agreements, documents and certificates executed and delivered by Purchaser or such permitted assignee in connection herewith. Further, any assignment or other Transfer or attempted or purported assignment or other Transfer by Purchaser of this Agreement, or any of its rights, benefits and obligations hereunder, shall constitute a material breach by Purchaser of this Agreement and shall entitle Seller to sell exercise immediately any and all of its rights and remedies hereunder, at law or in equity. Purchaser hereby agrees to indemnify, defend and hold the Seller Parties harmless from and against any Liabilities, including special and consequential damages, arising out of or relating to any assignment or other Transfer and/or attempted or purported assignment or other Transfer by Purchaser and/or any permitted assignee of this Agreement, or any of Purchaser's or such assignee's rights, benefits and obligations hereunder, in breach of the provisions hereof and such indemnification obligation to purchase the Loan Documents and Claims, Rights and Benefits and not to proceed with Closing, whereupon Seller shall be entitled in addition to Seller's right to retain the Xxxxxxx Money as its sole and exclusive remedy (subject to its further right to recover additional damages and attorneys' fees and expenses as hereinafter provided), as liquidated damages for Purchaser's breach of its purchase obligations under shall not be limited by any provision elsewhere in this Agreement; or (b) to proceed to Closing and in the event Closing occurs, to the rights and remedies set forth in Section 7.3. Further, in the event Seller elects not to proceed to Closing and retain the Xxxxxxx Money as provided herein, and because the actual damages suffered by Seller as a result of such breach by Purchaser would be impracticable or extremely difficult or impossible to determine, Purchaser agrees that Agreement limiting the amount of the Xxxxxxx Money is a reasonable estimate of damages to which Seller is entitled in such event and that the amount of such liquidated damages does not constitute a penalty. Upon the election of Seller to retain the Xxxxxxx Money pursuant to (a) above, recover from Purchaser under this Agreement, including the purchase and sale obligations of Purchaser and Seller hereunder, shall be deemed automatically terminated (except for such provisions as survive terminationlimitations in Section 7.1(a), and the parties shall have no further rights, obligations or liabilities hereunder, except in the event the Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of same (or attempts to do any of the foregoing). If Purchaser wrongfully hinders, delays, contests or interferes with Seller's retention of the Xxxxxxx Money (or attempts to do any of the foregoing), then Seller shall be entitled to recover any additional actual damages (excluding "lost profits," special and consequential damages) arising from Purchaser's breach (including reasonable attorney's fees and expenses (whether incurred in connection with nonjudicial action, prior to trial, at trial or on appeal or review, including any proceedings under the Bankruptcy Code)), in addition to retaining the Xxxxxxx Money.