Common use of Application of the Deposit Clause in Contracts

Application of the Deposit. (a) In the event the Parties terminate this Agreement pursuant to Sections 8.1(a), or 8.1(f), then Seller shall promptly, and in any event within three (3) Business Days, pay to Buyer as Buyer’s sole and exclusive remedy, the Deposit, as liquidated damages and not as a penalty, which the Parties acknowledge and agree is reasonable under the circumstances. (b) In the event that Buyer validly terminates this Agreement pursuant to Section 8.1(b), 8.1(d), or 8.1(e), and, at the time of such termination pursuant to Section 8.1(b), 8.1(d) or 8.1(e), (i) Seller shall not also be entitled to terminate this Agreement pursuant to any of Section 8.1(b), 8.1(d), and 8.1(e) and (ii) the conditions in Sections 7.1(a) and 7.1(b) are each satisfied (except, with respect to a termination pursuant to Section 8.1(e), the satisfaction of the condition in Section 7.1(b) shall not be required), then Seller shall promptly, and in any event within three (3) Business Days, pay to Buyer, as Buyer’s sole and exclusive remedy, the Deposit, as liquidated damages and not as a penalty, which the Parties acknowledge and agree is reasonable under the circumstances. For the avoidance of doubt, in no event shall more than one payment of the Deposit be made to Buyer under this Agreement. (c) Upon any termination of this Agreement not expressly provided in Section 8.3(a) or 8.3(b), the Deposit shall be retained by Seller free and clear of any adverse right or claim. Prior to the Closing, entitlement to the Deposit pursuant to this Section 8.3(c) shall in no way limit, diminish, or waive any right of Seller or its Affiliates to recover additional damages from or exercise any other remedies at law or in equity against Buyer or any of its Affiliates with respect to actual fraud or any willful misconduct by Buyer or any of its Affiliates. (d) Nothing in this Section 8.3 or any other provision of this Agreement shall in any way limit, diminish or waive the right of a Party to pursue specific performance remedies; provided, however, that if Seller terminates this Agreement, Seller’s rights and remedies shall be limited to retaining the Deposit, absent actual fraud or willful misconduct by Buyer or its Affiliates.

Application of the Deposit. (a) In the event the Parties terminate this Agreement pursuant to Sections 8.1(a), ) or 8.1(f), then Seller shall promptly, and in any event within three (3) Business Days, pay to Buyer Buyer, as Buyer’s sole and exclusive remedy, the Deposit, together with any interest earned thereon less any banking fees associated with the separate account, as liquidated damages and not as a penalty, which the Parties acknowledge and agree is reasonable under the circumstances. (b) In the event that Buyer validly terminates this Agreement pursuant to Section 8.1(b), ) or 8.1(d), or 8.1(e), and, at the time of such termination pursuant to Section 8.1(b) or 8.1(d), 8.1(d) or 8.1(e), (i) Seller shall not also be entitled to terminate this Agreement pursuant to any of Section 8.1(b), 8.1(c) or 8.1(d), and 8.1(e) and (ii) the conditions in Sections 7.1(a) and 7.1(b) are each satisfied (except, with respect to a termination pursuant to Section 8.1(e), the satisfaction of the condition in Section 7.1(b) shall not be required), then Seller shall promptly, and in any event within three (3) Business Days, pay to Buyer, as Buyer’s sole and exclusive remedy, the Deposit, together with any interest earned thereon less any banking fees associated with the separate account, as liquidated damages and not as a penalty, which the Parties acknowledge and agree is reasonable under the circumstances. For the avoidance of doubt, in no event shall more than one payment of the Deposit be made to Buyer under this Agreement. (c) In the event that Buyer validly terminates this Agreement pursuant to Section 8.1(e) (or a termination is deemed made under Section 8.1(e)) and, at the time of such termination pursuant to Section 8.1(e), Seller shall not also be entitled to terminate this Agreement pursuant to Section 8.1(c) or 8.1(d), then Seller shall promptly, and in any event within three (3) Business Days, pay to Buyer, as Buyer’s sole and exclusive remedy, the Deposit, together with any interest earned thereon less any banking fees associated with the separate account, as liquidated damages and not as a penalty, which the Parties acknowledge and agree is reasonable under the circumstances. (d) In the event (i) Seller validly terminates this Agreement pursuant to Section 8.1(e) and, at the time of such termination pursuant to Section 8.1(e), Buyer shall not also be entitled to terminate this Agreement pursuant to Section 8.1(d), and (ii) Buyer or one of its Affiliates’ failure to fulfill any obligation under this Agreement has been the primary cause of, or materially contributed to, any such order, injunction, restraint or prohibition as contemplated under Section 8.1(e), the Deposit shall be retained by Seller free and clear of any adverse right or claim. (e) Upon any other termination of this Agreement under Section 8.1 not expressly provided in Section 8.3(a), 8.3(b), 8.3(c) or 8.3(b8.3(d), the Deposit shall be retained by Seller free and clear of any adverse right or claim. Prior to the Closing, entitlement to the Deposit pursuant to this Section 8.3(c8.3(d) and 8.3(e) shall in no way limit, diminish, diminish or waive any right of Seller or its Affiliates to recover additional damages from Damages from, or exercise any other remedies at law or in equity against against, Buyer or any of its Affiliates with respect to actual fraud or any willful misconduct by Buyer or any of its Affiliates. (df) Nothing in this Section 8.3 or any other provision of this Agreement shall in any way limit, diminish or waive the right of a Party to pursue specific performance remedies; remedies provided, however, that if Seller terminates this Agreement, Seller’s rights and remedies shall be limited to retaining the Deposit, absent actual fraud or willful misconduct by Buyer or its Affiliates. (g) For the avoidance of doubt, in no event shall more than one payment of the Deposit be made to Buyer under this Agreement.