Common use of Default Damages Clause in Contracts

Default Damages. If prior to the Closing the Buyer shall fail to fulfill the Buyer's agreements and/or obligations hereunder in any material respect within applicable cure periods, the Seller may terminate this Agreement upon notice to Buyer. Where no cure period is specified in this Agreement, such period shall be thirty (30) days after receipt of written notification which shall be given in accordance with section 8.1 hereof. In the event of such termination, the Seller shall retain the Deposit, including the Extension and the Appeal Deposit, if applicable, which shall be Seller’s sole and exclusive remedy for a default by Buyer at law or in equity, and the Buyer shall: (a) restore the Premises to substantially the same condition as the Premises was prior to entering into this Agreement, as required under this Agreement and the Entry Agreement, unless otherwise agreed to in writing by the Seller. In the event that Xxxxx fails to fulfill Buyer’s agreements and/or obligations hereunder after the Closing, Seller shall be entitled to (i) all rights and remedies available under Applicable Laws, and (ii) elect to exercise its right to repurchase the Premises in accordance with the Repurchase Agreement, in which event, the Seller shall be entitled to specific performance to compel the delivery of a deed thereunder. In the event that this Agreement is terminated, the Entry Agreement shall be deemed to be automatically terminated at the same time. If the Seller shall fail to fulfill the Seller’s agreements and/or obligations hereunder, and the sale contemplated hereby is not consummated because of default by the Seller in its obligation to sell the Premises in accordance with the terms of this Agreement, then the Buyer may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will promptly be returned to the Buyer and the Parties shall have no further obligations to each other except for the Buyer’s obligations under the Entry Agreement (except for the provisions that expressly survive termination thereof); (b) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (c) seek specific performance. In no event shall Seller be responsible to Buyer for the cost of any improvements Buyer may have made to the Premises or for the costs of any studies, reports, or tests performed by the Buyer except as otherwise provided in the Repurchase Agreement. In no event shall Seller be liable to Buyer for any indirect, special, punitive, multiple, incidental, or consequential damages, however caused, including, but not limited to, lost profits, lost revenue, work interruption, or any other form of such damages. In no event shall any of the elected or appointed officials of Seller or any of Seller’s employees or volunteers be personally liable whatsoever with respect to this Agreement. A default under the Entry Agreement beyond any applicable cure period shall be deemed to be a default under this Agreement, and a default under this Agreement beyond any applicable cure period shall be deemed to be a default under the Entry Agreement. The provisions of this Section 4.6 shall survive the Closing and the delivery of the Deed.

Default Damages. If prior to the Closing the Buyer Evergreen or Bxxxxx Road shall fail to fulfill the Buyer's their respective agreements and/or obligations hereunder in any material respect within applicable cure periodshereunder, the Seller MassDevelopment may terminate this Agreement the Agreements hereunder upon notice to Buyer. Where no cure period is specified in this Agreement, such period shall be thirty (30) days after receipt of written notification which shall be given in accordance with section 8.1 hereofBxxxxx Road and Evergreen. In such event, Mass Development shall have the event of such termination, the Seller shall retain the Deposit, including the Extension and the Appeal Deposit, if applicable, which shall be Seller’s sole and exclusive remedy for a default by Buyer right to pursue all remedies available to it at law or in equity, and equity with respect to its claims under the Buyer shall: (a) restore Devens Agreements in the Premises to substantially the same condition as the Premises was prior to entering into this Agreement, as required under this Agreement and the Entry Agreement, unless otherwise agreed to in writing by the Seller. In the event that Xxxxx fails to fulfill Buyer’s agreements and/or obligations hereunder after the Closing, Seller shall be entitled to (i) all rights and remedies available under Applicable Laws, and (ii) elect to exercise its right to repurchase the Premises in accordance with the Repurchase Agreement, in which event, the Seller shall be entitled to specific performance to compel the delivery of a deed thereunder. In the event that this Agreement is terminated, the Entry Agreement shall be deemed to be automatically terminated at the same timeBankruptcy Case. If the Seller MassDevelopment shall fail to fulfill the SellerMassDevelopment’s agreements and/or obligations hereunder, and the sale contemplated hereby is not consummated because of default by the Seller MassDevelopment in its obligation to sell the Premises Property in accordance with the terms of this Agreementthese Terms, then the Buyer then, Evergreen and Bxxxxx Road may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement the Agreements hereunder by giving written notice thereof to SellerMassDevelopment, in which event the Deposit will promptly be returned to the Buyer and the Parties parties shall have no further obligations to each other except for the Buyer’s obligations under the Entry Agreement (except for the provisions that as expressly survive termination thereof)any such termination; or (b) waive such default and consummate the transactions contemplated hereby in accordance with these terms. MassDevelopment acknowledges and agrees that any breach of these Terms by MassDevelopment would give rise to irreparable harm for which money damages would not be an adequate remedy, and, accordingly agrees that, in addition to any other remedies, Evergreen shall be entitled to enforce the terms of these Terms with respect to any breach of this Agreement by MassDevelopment by a decree of specific performance without the necessity of proving the inadequacy of money damages as a remedy. If the Closing fails to occur due to a breach by a dispute between Evergreen and Bxxxxx Road, MassDevelopment may terminate this Agreement and there shall be no right of specific performance available against MassDevelopment. Upon such termination and rejection or deemed rejection of the Lease, the Property, including all improvements thereon, shall be governed by the terms of Section I.b of the Settlement Agreement; or (c) seek specific performance. In no event shall Seller MassDevelopment be responsible to Buyer Evergreen or Bxxxxx Road for the cost of any improvements Buyer Evergreen may have made to the Premises Property or for the costs of any studies, reports, or tests performed by the Buyer except as otherwise provided in the Repurchase Agreement. In no event shall Seller be liable to Buyer Bxxxxx Road or for any indirect, special, punitive, multiple, incidental, incidental or consequential damages, however caused, including, but not limited to, lost profits, lost revenue, work interruption, or any other form of such damages. In no event shall any of the elected or appointed officials of Seller or any of Seller’s employees or volunteers be personally liable whatsoever with respect to this Agreement. A default under the Entry Agreement beyond any applicable cure period shall be deemed to be a default under this Agreement, and a default under this Agreement beyond any applicable cure period shall be deemed to be a default under the Entry Agreement. The provisions of this Section 4.6 shall survive the Closing and the delivery of the Deed.

Default Damages. If prior Landlord and Tenant acknowledge and agree that, if a Tenant Default occurs and Landlord elects to pursue its remedies under California Civil Code Section 1951.2 or under this Lease to terminate this Lease (any such event, a “Landlord Action”), (i) Landlord will incur certain damages, costs and expenses, including, without limitation, marketing costs, commissions, relocation costs, tenant improvement costs, and carrying costs in connection with releasing the Premises, in addition to the Closing other damages, costs and expenses Landlord may incur as a result of such default and/or other defaults under this Lease (all of the Buyer shall fail foregoing collectively, “Default Damages”); (ii) Landlord has no assurance of a source of funds to fulfill cover such Default Damages other than the Buyer's agreements and/or obligations hereunder in any material respect within proceeds of the Security Deposit or Letter of Credit; and (iii) the proceeds of the Security Deposit or Letter of Credit should be available to Landlord to apply to Default Damages, even if the amount thereof exceeds that amount to which Landlord is ultimately determined to be entitled under this Lease and pursuant to applicable cure periodslaw as provided herein. Accordingly, at the sole election of the Beneficiary, the Seller may terminate this Agreement upon notice to Buyer. Where no cure period is specified in this Agreement, such period shall be thirty (30) days after receipt of written notification which shall be given in accordance with section 8.1 hereof. In the event of such termination, the Seller shall retain the Deposit, including the Extension and the Appeal Deposit, if applicable, which shall be Seller’s sole and exclusive remedy for a default by Buyer at law or in equity, and the Buyer shall: (a) restore the Premises to substantially the same condition as the Premises was prior to entering into this Agreement, as required under this Agreement and the Entry Agreement, unless otherwise agreed to in writing by the Seller. In the event that Xxxxx fails to fulfill Buyer’s agreements and/or obligations hereunder after the Closing, Seller Beneficiary shall be entitled to draw the full amount of the Letter of Credit (i) all rights and remedies available under Applicable Laws, and (ii) elect to exercise its right to repurchase or the Premises in accordance with full amount of the Repurchase Agreement, in which event, the Seller Security Deposit shall be entitled released to specific performance the Landlord) which is then existing (after any previous application of funds and/or replenishment by Tenant pursuant to compel the delivery this Section 32), simultaneously with commencement of a deed thereunderLandlord Action or at any time thereafter until the entry of a judgment in such Landlord Action. In All proceeds thereof in excess of the event that this Agreement is terminated, amounts awarded to Landlord by virtue of the Entry Agreement judgment in the Landlord Action shall be deemed a loan from Tenant to Landlord (the “Default Loan”). The Default Loan shall be automatically terminated at unsecured and shall not bear interest. Any sums to which Landlord from time to time becomes entitled hereunder and pursuant to law as a result of the same timeTenant Default which was the basis of Landlord’s use of the Letter of Credit (or cash collateral) and any previous Tenant Defaults to which the Letter of Credit (or cash collateral) has not previously been applied pursuant to this Section 32 shall be offset against the principal balance of the Loan. If The amount of the Seller Default Loan remaining, if any, after such offset shall fail be referred to fulfill herein as the Seller’s agreements and/or obligations hereunder, and “Excess Amount.” The Excess Amount shall be payable by Landlord to Tenant upon the sale contemplated hereby is not consummated because of default by the Seller in its obligation to sell the Premises in accordance with the terms of this Agreement, then the Buyer may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will promptly be returned to the Buyer and the Parties shall have no further obligations to each other except for the Buyer’s obligations under the Entry Agreement (except for the provisions that expressly survive termination thereof); (b) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (c) seek specific performance. In no event shall Seller be responsible to Buyer for the cost satisfaction of any improvements Buyer may have made to the Premises or for the costs of any studies, reports, or tests performed by the Buyer except as otherwise provided judgment entered in the Repurchase Agreement. In no event shall Seller be liable to Buyer for any indirect, special, punitive, multiple, incidental, or consequential damages, however caused, including, but not limited to, lost profits, lost revenue, work interruption, or any other form of such damages. In no event shall any of the elected or appointed officials of Seller or any of Seller’s employees or volunteers be personally liable whatsoever with respect to this Agreement. A default under the Entry Agreement beyond any applicable cure period shall be deemed to be a default under this Agreement, and a default under this Agreement beyond any applicable cure period shall be deemed to be a default under the Entry Agreement. The provisions of this Section 4.6 shall survive the Closing and the delivery of the DeedLandlord Action.

Default Damages. If prior Landlord and Tenant acknowledge and agree that, if a Tenant Default occurs and Landlord elects to pursue its remedies under California Civil Code Section 1951.2 to terminate this Lease (any such event, a “Landlord Action”), (i) Landlord will incur certain damages, costs and expenses, including, without limitation, marketing costs, commissions, relocation costs, tenant improvement costs, and carrying costs in connection with releasing the Premises, in addition to the Closing other damages, costs and expenses Landlord may incur as a result of such default and/or other defaults under this Lease (all of the Buyer shall fail foregoing collectively, “Default Damages”); (ii) Landlord has no assurance of a source of funds to fulfill cover such Default Damages other than the Buyer's agreements and/or obligations hereunder in any material respect within proceeds of the Letter of Credit; and (iii) the proceeds of the Letter of Credit should be available to Landlord to apply to Default Damages, even if the amount thereof exceeds that amount to which Landlord is ultimately determined to be entitled under this Lease and pursuant to applicable cure periodslaw as provided herein. Accordingly, at the sole election of the Beneficiary, the Seller may terminate this Agreement upon notice to Buyer. Where no cure period is specified in this Agreement, such period shall be thirty (30) days after receipt of written notification which shall be given in accordance with section 8.1 hereof. In the event of such termination, the Seller shall retain the Deposit, including the Extension and the Appeal Deposit, if applicable, which shall be Seller’s sole and exclusive remedy for a default by Buyer at law or in equity, and the Buyer shall: (a) restore the Premises to substantially the same condition as the Premises was prior to entering into this Agreement, as required under this Agreement and the Entry Agreement, unless otherwise agreed to in writing by the Seller. In the event that Xxxxx fails to fulfill Buyer’s agreements and/or obligations hereunder after the Closing, Seller Beneficiary shall be entitled to draw the full amount of the Letter of Credit which is then existing (i) all rights and remedies available under Applicable Lawsafter any previous application of funds and/or replenishment by Tenant pursuant to this Section 32), and (ii) elect to exercise its right to repurchase the Premises in accordance simultaneously with the Repurchase Agreement, in which event, the Seller shall be entitled to specific performance to compel the delivery commencement of a deed thereunderLandlord Action or at any time thereafter until the entry of a judgment in such Landlord Action. In All proceeds thereof in excess of the event that this Agreement is terminated, amounts awarded to Landlord by virtue of the Entry Agreement judgment in the Landlord Action shall be deemed a loan from Tenant to Landlord (the “Default Loan”). The Default Loan shall be automatically terminated at unsecured and shall not bear interest. Any sums to which Landlord from time to time becomes entitled hereunder and pursuant to law as a result of the same timeTenant Default and any previous Tenant Defaults to which the Letter of Credit (or cash collateral) has not previously been applied pursuant to this Section 32 shall be offset against the principal balance of the Default Loan. If The amount of the Seller Default Loan remaining, if any, after such offset shall fail be referred to fulfill herein as the Seller’s agreements and/or obligations hereunder, and “Excess Amount.” The Excess Amount shall be payable by Landlord to Tenant upon the sale contemplated hereby is not consummated because of default by the Seller in its obligation to sell the Premises in accordance with the terms of this Agreement, then the Buyer may, as its sole and exclusive remedy at law or in equity: (a) terminate this Agreement by giving written notice thereof to Seller, in which event the Deposit will promptly be returned to the Buyer and the Parties shall have no further obligations to each other except for the Buyer’s obligations under the Entry Agreement (except for the provisions that expressly survive termination thereof); (b) waive such default and consummate the transactions contemplated hereby in accordance with the terms of this Agreement; or (c) seek specific performance. In no event shall Seller be responsible to Buyer for the cost satisfaction of any improvements Buyer may have made to the Premises or for the costs of any studies, reports, or tests performed by the Buyer except as otherwise provided judgment entered in the Repurchase Agreement. In no event shall Seller be liable to Buyer for any indirect, special, punitive, multiple, incidental, or consequential damages, however caused, including, but not limited to, lost profits, lost revenue, work interruption, or any other form of such damages. In no event shall any of the elected or appointed officials of Seller or any of Seller’s employees or volunteers be personally liable whatsoever with respect to this Agreement. A default under the Entry Agreement beyond any applicable cure period shall be deemed to be a default under this Agreement, and a default under this Agreement beyond any applicable cure period shall be deemed to be a default under the Entry Agreement. The provisions of this Section 4.6 shall survive the Closing and the delivery of the DeedLandlord Action.