Common use of Seller’s Remedies for Buyer Defaults Clause in Contracts

Seller’s Remedies for Buyer Defaults. Prior to entering into this transaction, Buyer and Seller have discussed the fact that substantial damages will be suffered by Seller if Buyer shall default in its obligation to purchase the Membership Interests under this Agreement when required hereunder; accordingly, the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00) (the “Seller Liquidated Damages Amount”). If Buyer defaults in its obligation to consummate the Closing as and when required under this Agreement, then Seller shall have the right to elect, as its sole and exclusive remedy (but without limiting any rights or remedies that Seller may have to receive the Specific Performance Liquidated Damages Amount, as described below), to (x) terminate this Agreement by written notice to Buyer, whereupon Buyer shall pay the Seller Liquidated Damages Amount to Seller, and thereafter, the parties shall have no further rights or obligations hereunder except for other obligations which expressly survive the termination of this Agreement, (y) seek specific performance of this Agreement against Buyer and, as applicable, the Buyer Parties or (z) waive the default or breach and proceed to close the Transaction. Notwithstanding any provision of this Agreement to the contrary, if Buyer shall default in its obligation to effectuate the Octavius Call Right Transfer in accordance with Section 6.8(a) and it is within Buyer’s or its affiliates control to so effectuate the Octavius Call Right Transfer, and such default is not cured within sixty (60) days after written notice from Seller of such default, then (i) the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the “Specific Performance Liquidated Damages Amount”), and (ii) without limiting any other rights or remedies that Seller may have under this Agreement, upon written notice from Seller to Buyer identifying such breach and requesting payment of the Specific Performance Liquidated Damages Amount, Buyer shall pay the Specific Performance Liquidated Damages Amount to Seller. Notwithstanding the foregoing, in no event shall Seller receive the Seller Liquidated Damages Amount if Seller receives the Specific Performance Liquidated Damages Amount. On the Effective Date, Buyer shall cause the Buyer Guarantor to execute and deliver the PSA Buyer Guaranty with respect to Buyer’s obligations under this Section 9.1.

Seller’s Remedies for Buyer Defaults. Prior to entering into this transaction, Buyer and Seller have discussed the fact that substantial damages will be suffered by Seller if Buyer shall default in its obligation to purchase the Membership Interests Property under this Agreement when required hereunderhereunder or the Other Land Seller shall default in its obligation to sell the Other Land Property under the Other Land PSA when required thereunder; accordingly, the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of TwentyForty-Five Million and No/100 Dollars ($25,000,000.0045,000,000.00) (the “Seller Liquidated Damages Amount”). If (a) Buyer defaults in its obligation to consummate the Closing as and when required under this AgreementAgreement or (b) Other Land Seller defaults in its obligation to consummate the Closing (as defined in the Other Land PSA) as and when required under the Other Land PSA, then then, in each case, Seller shall have the right to elect, as its sole and exclusive remedy (but without limiting except as set forth below with respect to any rights or remedies that Seller may have to receive breach of the Specific Performance Liquidated Damages Amount, as described belowcovenants of Buyer set forth in Section 8.8 hereof), to (x) terminate this Agreement by written notice to Buyer, whereupon Buyer in which case the Other Land PSA will automatically terminate and Buyer shall pay the Seller Liquidated Damages Amount to Seller, and thereafter, the parties shall have no further rights or obligations hereunder except for other obligations which expressly survive the termination of this Agreement, or (y) seek specific performance of this Agreement against Buyer and, as applicable, the Buyer Parties or (z) waive the default or breach and proceed to close the Transaction. Notwithstanding any provision of this Agreement to the contrary, if Buyer shall default in its obligation to effectuate the Octavius Call Right Transfer in accordance with Section 6.8(a) and it is within Buyer’s or its affiliates control to so effectuate the Octavius Call Right Transfer, and such default is not cured within sixty (60) days after written notice from Seller of such default, then (i) the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the “Specific Performance Liquidated Damages Amount”), and (ii) without limiting any other rights or remedies that Seller may have under this Agreement, upon written notice from Seller to Buyer identifying such breach and requesting payment of the Specific Performance Liquidated Damages Amount, Buyer shall pay the Specific Performance Liquidated Damages Amount to Seller. Notwithstanding the foregoing, in no event shall Seller receive the Seller Liquidated Damages Amount if Seller receives the Specific Performance Liquidated Damages Amount. On the Effective Date, Buyer Guarantor shall cause the Buyer Guarantor to execute and deliver the PSA Buyer Guaranty with respect to Other Land Seller’s obligations under Section 7.3 of the Other Land PSA and Buyer’s obligations under Section 9.1 of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, and for the avoidance of doubt, (x) if Buyer shall breach the Bright Line Commitment Provision, then, in lieu of the Seller Liquidated Damages Amount, Buyer shall be responsible for the actual damages incurred by Seller as a result of such breach of the Bright Line Commitment Provision and (y) if Buyer shall breach any covenant in Section 9.18.8 other than the Bright Line Commitment Provision and such breach shall continue for two (2) Business Days after notice thereof from Seller to Buyer, then, in lieu of the Seller Liquidated Damages Amount, Seller may seek to enforce specific performance of such covenant.

Seller’s Remedies for Buyer Defaults. Prior If, (i) on the Scheduled Closing Date Buyer fails to entering into deliver the balance of the Purchase Price in accordance with Sections 2.3 and 6.1, and fails to cure the same within two (2) Business Days after the Scheduled Closing Date, or (ii) on or before the Scheduled Closing Date Buyer is in default of any of its other material obligations hereunder or any of Buyer’s representations or warranties are, in the aggregate, untrue, inaccurate or incorrect in any material respect, and any such circumstance described in this transaction, Buyer and Seller have discussed the fact that substantial damages will be suffered by Seller if Buyer clause (ii) continues for five (5) Business Days after written notice (which written notice shall detail such default in its obligation to purchase the Membership Interests under this Agreement when required hereunder; accordingly, the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00) (the “Seller Liquidated Damages Amount”or breach). If Buyer defaults in its obligation to consummate the Closing as and when required under this Agreement, then Seller shall have the right to elect, elect as its sole and exclusive remedy (but without limiting any rights or remedies that Seller may have to receive the Specific Performance Liquidated Damages Amount, as described below)remedy, to (xa) terminate this Agreement by written notice to Buyer, whereupon Buyer promptly after which the Deposit shall pay the be paid to Seller Liquidated Damages Amount to Selleras liquidated damages and, and thereafter, the parties shall have no further rights or obligations hereunder except for other obligations which expressly survive the termination of this Agreement, (y) seek specific performance of this Agreement against Buyer and, as applicable, the Buyer Parties or (zb) waive the default or breach and proceed to close the Transaction. Notwithstanding Seller and Buyer have discussed the possible consequences to Seller in the event that the Closing does not occur by reason of any provision of the events described in this Agreement to the contrary, if Buyer shall default in its obligation to effectuate the Octavius Call Right Transfer in accordance with Section 6.8(a) and it is within Buyer’s or its affiliates control to so effectuate the Octavius Call Right Transfer, and such default is not cured within sixty (60) days after written notice from Seller of such default, then (i) the section. The parties agree that it would be impractical or extremely difficult to determine the actual damages to Seller in such event and that a reasonable estimate of Seller’s such damages in such event is an amount equal to the amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the “Specific Performance Liquidated Damages Amount”), and (ii) without limiting any other rights or remedies that Seller may have under this Agreement, upon written notice from Seller to Buyer identifying such breach and requesting payment of the Specific Performance Liquidated Damages Amount, Buyer shall pay the Specific Performance Liquidated Damages Amount to SellerDeposit. Notwithstanding the foregoing, in no event shall Seller receive the Seller Liquidated Damages Amount if Seller receives the Specific Performance Liquidated Damages AmountTHE AMOUNT PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES PURSUANT TO THE FOREGOING PROVISIONS SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY IF BUYER FAILS TO CLOSE THE PURCHASE OF THE PROPERTY. On the Effective Date, Buyer shall cause the Buyer Guarantor to execute and deliver the PSA Buyer Guaranty with respect to Buyer’s obligations under this Section 9.1THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THE AMOUNT OF THE DEPOSIT PLUS ANY INTEREST ACCRUED THEREON REPRESENTS THE PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES.

Seller’s Remedies for Buyer Defaults. Prior to entering into this transaction, Buyer and Seller have discussed the fact that substantial damages will be suffered by Seller if Buyer shall default in its obligation to purchase the Membership Interests Property under this Agreement when required hereunderhereunder or the Other Land Seller shall default in its obligation to sell the Other Land Property under the Other Land PSA when required thereunder; accordingly, the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of TwentyForty-Five Million and No/100 Dollars ($25,000,000.0045,000,000.00) (the “Seller Liquidated Damages Amount”). If (a) Buyer defaults in its obligation to consummate the Closing as and when required under this AgreementAgreement or (b) Other Land Seller defaults in its obligation to consummate the Closing (as defined in the Other Land PSA) as and when required under the Other Land PSA, then then, in each case, Seller shall have the right to elect, as its sole and exclusive remedy (but without limiting except as set forth below with respect to any rights or remedies that Seller may have to receive breach of the Specific Performance Liquidated Damages Amount, as described belowcovenants of Buyer set forth in Section 8.8 hereof), to (x) terminate this Agreement by written notice to Buyer, whereupon Buyer in which case the Other Land PSA will automatically terminate and Buyer shall pay the Seller Liquidated Damages Amount to Seller, and thereafter, the parties shall have no further rights or obligations hereunder except for other obligations which expressly survive the termination of this Agreement, or (y) seek specific performance of this Agreement against Buyer and, as applicable, the Buyer Parties or (z) waive the default or breach and proceed to close the Transaction. Notwithstanding any provision of this Agreement to the contrary, if Buyer shall default in its obligation to effectuate the Octavius Call Right Transfer in accordance with Section 6.8(a) and it is within Buyer’s or its affiliates control to so effectuate the Octavius Call Right Transfer, and such default is not cured within sixty (60) days after written notice from Seller of such default, then (i) the parties agree that a reasonable estimate of Seller’s damages in such event is the amount of Fifty Million and No/100 Dollars ($50,000,000.00) (the “Specific Performance Liquidated Damages Amount”), and (ii) without limiting any other rights or remedies that Seller may have under this Agreement, upon written notice from Seller to Buyer identifying such breach and requesting payment of the Specific Performance Liquidated Damages Amount, Buyer shall pay the Specific Performance Liquidated Damages Amount to Seller. Notwithstanding the foregoing, in no event shall Seller receive the Seller Liquidated Damages Amount if Seller receives the Specific Performance Liquidated Damages Amount. On the Effective Date, Buyer Guarantor shall cause the Buyer Guarantor to execute and deliver the PSA Buyer Guaranty with respect to Other Land Seller’s obligations under Section 7.3 of the Other Land PSA and Buyer’s obligations under Section 9.1 of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, and for the avoidance of doubt, (x) if Buyer shall breach the Bright Line Commitment Provision, then, in lieu of the Seller Liquidated Damages Amount, Buyer shall be responsible for the actual damages incurred by Seller as a result of such breach of the Bright Line Commitment Provision and (y) if Buyer shall breach any covenant in Section 9.1.8.8 other than the Bright Line Commitment Provision and such breach shall continue for two (2) Business Days after notice thereof from Seller to Buyer, then, in lieu of the Seller Liquidated Damages Amount, Seller may seek to enforce specific performance of such covenant. SECTION 9.2