Common use of Buyer's Default; Liquidated Damages Clause in Contracts

Buyer's Default; Liquidated Damages. In the event Seller terminates this Agreement under Section 10(a)(iii) of this Agreement, unless it is terminated solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, the Deposit shall be retained by Seller as full, complete, liquidated damages ("Liquidated Damages"), as provided below. If Seller terminates this Agreement under Section 10(a)(iii) of this Agreement solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, Seller shall only retain that portion of the Deposit necessary to reimburse its reasonable out-of-pocket expenses in connection with the transactions contemplated hereby and the remaining amount of the Deposit, if any, shall be returned to Buyer. Notwithstanding any other provisions of this Agreement to the contrary, Buyer and Seller agree that, in the event that Buyer breaches a representation or warranty (except for inaccuracies of which Buyer was not aware, as set forth above) or covenant contained herein or otherwise fails to perform its obligations under this Agreement prior to the closing hereunder, it would be impracticable or extremely difficult to fix or determine Seller's actual damages. Therefore, Buyer and Seller each agree that the amount of the liquidated damages has been agreed upon as liquidated damages after negotiation as the parties' reasonable estimate of Seller's damages and as Seller's exclusive remedy against Buyer in the event of the occurrence of any event described in the first sentence of this Section (ii). Buyer and Seller each acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty. If Buyer defaults in any material respect in its obligations hereunder or breaches a material representation or material warranty or covenant herein or otherwise fails to perform any of its obligations under this Agreement after the Closing, Seller shall be entitled to assert all claims and to exercise all remedies available to it at law or in equity; PROVIDED, HOWEVER, that Seller shall have no right to consequential damages.

Buyer's Default; Liquidated Damages. In the event Seller terminates this Agreement under Section 10(a)(iii) of this Agreement, unless it is terminated solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, the Deposit shall be retained by Seller as full, complete, liquidated damages ("Liquidated Damages"), as provided below. If Seller terminates this Agreement under Section 10(a)(iii) of this Agreement solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, Seller shall only retain that portion of the Deposit necessary to reimburse its reasonable out-of-pocket expenses in connection with the transactions contemplated hereby and the remaining amount of the Deposit, if any, shall be returned to Buyer. Notwithstanding any other provisions of this Agreement to the contrary, Buyer and Seller agree that, ’s material default in the event that Buyer breaches a representation or warranty (except for inaccuracies performance of which Buyer was not aware, as set forth above) any obligation or covenant contained herein or otherwise fails to perform its obligations under this Agreement prior to Closing, Seller’s sole and exclusive remedy shall be to terminate this Agreement and retain the closing hereunderamount of the Deposits to be paid as provided in this Agreement, plus accrued interest thereon, as liquidated damages; provided, however, that Seller shall also be entitled to (A) exercise any rights or remedies it may have at law or in equity by virtue of any provision of or obligation under this Agreement which expressly survives the termination of this Agreement or the Closing, and/or any indemnity created or granted herein, (B) exercise any rights and remedies it may have at law and in equity to enforce Buyer’s obligations under Sections 4(c), 4(d) and 5 hereof, and (C) recover the costs and expenses of enforcing this Agreement, including reasonable attorneys’ fees. Seller and Buyer expressly acknowledge and agree that in the event of such a default under this Agreement by Buyer prior to Closing, (i) Seller will be materially damaged, (ii) with the fluctuation in value of land, commercial property and retail property in the State of Hawaii, the unpredictable state of the economy and of governmental regulations, the nature of the real estate market in the State of Hawaii, the difficulty in evaluation of lost profits, and other factors which directly affect the value and marketability of the Property, it would be impracticable or extremely difficult and impracticable at this time to fix or determine Seller's actual damages. Thereforeestimate the amount of such damage, Buyer and Seller each agree that (iii) after negotiation, the Parties have agreed that, considering all of the circumstances existing as of the Effective Date, the amount of the liquidated damages has been agreed upon Deposits to be paid as liquidated damages after negotiation as the parties' provided in this Agreement, plus accrued interest thereon, is a reasonable estimate of Seller's the damages that Seller would incur in such event and as Seller's exclusive remedy against would not constitute a penalty or unreasonable forfeiture. In such event, Escrow Agent is hereby irrevocably instructed by Seller and Buyer in to release and disburse 3102/001/117988.10 the event amount of the occurrence of any event described Deposits to be paid as provided in the first sentence of this Section (ii). Buyer and Seller each acknowledge that the payment of such liquidated damages is not intended as a forfeiture or penalty. If Buyer defaults in any material respect in its obligations hereunder or breaches a material representation or material warranty or covenant herein or otherwise fails Agreement, plus accrued interest thereon, to perform any of its obligations under this Agreement after the Closing, Seller shall be entitled to assert all claims and to exercise all remedies available to it at law or in equity; PROVIDED, HOWEVER, that Seller shall have no right to consequential damagesSeller.

Buyer's Default; Liquidated Damages. In the event Seller terminates this Agreement under Section 10(a)(iii) of this Agreement, unless it is terminated solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, the Deposit shall be retained by Seller as full, complete, liquidated damages ("Liquidated Damages"), as provided below. If Seller terminates this Agreement under Section 10(a)(iii) of this Agreement solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, Seller shall only retain that portion of the Deposit necessary to reimburse its reasonable out-of-pocket expenses in connection with the transactions contemplated hereby and the remaining amount of the Deposit, if any, shall be returned to Buyer. Notwithstanding any other provisions of this Agreement to the contrary, Buyer and Seller agree that, 's default in the event that Buyer breaches a representation or warranty (except for inaccuracies performance of which Buyer was not aware, as set forth above) any obligation or covenant contained herein or otherwise fails to perform its obligations under this Agreement prior to Closing, Seller shall have the closing hereunderright, as Seller’s sole remedy, to terminate this Agreement and shall be entitled to retain the amount of the Deposits to be paid as provided in this Agreement, plus accrued interest thereon, as liquidated damages. Seller and Buyer expressly acknowledge and agree that in the event of such a default under this Agreement by Buyer, (i) Seller will be materially damaged, (ii) with the fluctuation in value of land, commercial property and retail property in the State of Hawaii, the unpredictable state of the economy and of governmental regulations, the nature of the real estate market in the State of Hawaii, the difficulty in evaluation of lost profits, and other factors which directly affect the value and marketability of the Property, it would be impracticable or extremely difficult and impracticable at this time to fix or determine Seller's actual damages. Thereforeestimate the amount of such damage, Buyer and Seller each agree that (iii) after negotiation, the Parties have agreed that, considering all of the circumstances existing as of the Effective Date, the amount of the liquidated damages has been agreed upon Deposits to be paid as liquidated damages after negotiation as the parties' provided in this Agreement, plus accrued interest thereon, is a reasonable estimate of Seller's the damages that Seller would incur in such event and as Seller's exclusive remedy against would not constitute a penalty or unreasonable forfeiture. In such event, Escrow Agent is hereby irrevocably instructed by Seller and Buyer in to release and disburse the event amount of the occurrence of any event described Deposits to be paid as provided in the first sentence of this Section (ii)Agreement, plus accrued interest thereon, to Seller. Buyer Such right to terminate and Seller each acknowledge that the payment of such liquidated damages is not intended as a forfeiture shall constitute Seller's sole and exclusive remedy for Buyer's default in the performance of any obligation or penaltycovenant under this Agreement prior to Closing, except that Seller shall be entitled to (A) exercise any rights or remedies it may have at law or in equity by virtue of any provision of this Agreement which expressly survives the termination of this Agreement and/or any indemnity created or granted herein, and (B) recover the costs and expenses of enforcing this Agreement, including reasonable attorneys' fees. If after Closing, Buyer defaults in any material respect in its obligations hereunder or breaches a material representation or material warranty or covenant herein or otherwise fails to perform any of its obligations under this Agreement after the which survive Closing, Seller shall be entitled to assert all claims and to may exercise all remedies any remedy available to it at law or in equity; PROVIDED. In such event, HOWEVERthe liquidated damages provision contained in this Section shall not apply to, that Seller shall have no right to consequential nor limit, nor be an offset against Seller's recoverable damages.

Buyer's Default; Liquidated Damages. In the event Seller terminates this Agreement under Section 10(a)(iii) of this Agreement, unless it is terminated solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, the Deposit shall be retained by Seller as full, complete, liquidated damages ("Liquidated Damages"), as provided below. If Seller terminates this Agreement under Section 10(a)(iii) of this Agreement solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, Seller shall only retain that portion of the Deposit necessary to reimburse its reasonable out-of-pocket expenses in connection with the transactions contemplated hereby and the remaining amount of the Deposit, if any, shall be returned to Buyer. Notwithstanding any other provisions of this Agreement to the contrary, Buyer and Seller agree that, 's material default in the event that Buyer breaches a representation or warranty (except for inaccuracies performance of which Buyer was not aware, as set forth above) any obligation or covenant contained herein or otherwise fails to perform its obligations under this Agreement prior to Closing, Seller shall have available to it all remedies at law and in equity, including without limitation the closing hereunderright to recover damages (the liquidated damages provision contained in this Section shall not apply to, nor limit, nor be an offset against such recoverable damages), to xxx for specific performance, or to terminate this Agreement. The foregoing sentence notwithstanding, in the event of Buyer's material default in the performance of any obligation or covenant under this Agreement prior to Closing which prevents Closing from taking place as provided in this Agreement, Seller shall have the right, in Seller's sole discretion, to terminate this Agreement and shall be entitled to retain the amount of the Deposits to be paid as provided in this Agreement, plus accrued interest thereon, as liquidated damages. Seller and Buyer expressly acknowledge and agree that in the event of such a default under this Agreement by Buyer, (i) Seller will be materially damaged, (ii) with the fluctuation in value of land, commercial property and retail property in the State of Hawaii, the unpredictable state of the economy and of governmental regulations, the nature of the real estate market in the State of Hawaii, the difficulty in evaluation of lost profits, and other factors which directly affect the value and marketability of the Property, it would be impracticable or extremely difficult and impracticable at this time to fix or determine Seller's actual damages. Thereforeestimate the amount of such damage, Buyer and Seller each agree that (iii) after negotiation, the Parties have agreed that, considering all of the circumstances existing as of the Effective Date, the amount of the liquidated damages has been agreed upon Deposits to be paid as liquidated damages after negotiation as the parties' provided in this Agreement, plus accrued interest thereon, is a reasonable estimate of Seller's the damages that Seller would incur in such event and as Seller's exclusive remedy against would not constitute a penalty or unreasonable forfeiture. In such event, Escrow Agent is hereby irrevocably instructed by Seller and Buyer in to release and disburse the event amount of the occurrence of any event described Deposits to be paid as provided in the first sentence of this Section (ii)Agreement, plus accrued interest thereon, to Seller. Buyer Such right to terminate and Seller each acknowledge that the payment of such liquidated damages is not intended shall constitute Seller's sole and exclusive remedy for Buyer's default in the performance of any obligation or covenant under this Agreement prior to Closing which prevents Closing from taking place as a forfeiture provided in this Agreement, except that Seller shall be entitled to (A) exercise any rights or penaltyremedies it may have at law or in equity by virtue of any provision of this Agreement which expressly survives the termination of this Agreement and/or any indemnity created or granted herein, and (B) recover the costs and expenses of enforcing this Agreement, including reasonable attorneys' fees. If after Closing, Buyer defaults in any material respect in its obligations hereunder or breaches a material representation or material warranty or covenant herein or otherwise fails to perform any of its obligations under this Agreement after the or covenants which survive Closing, Seller shall be entitled to assert all claims and to may exercise all remedies any remedy available to it at law or in equity; PROVIDED. In such event, HOWEVERthe liquidated damages provision contained in this Section shall not apply to, that Seller shall have no right to consequential nor limit, nor be an offset against Seller's recoverable damages.

Buyer's Default; Liquidated Damages. In the event Seller terminates this Agreement under Section 10(a)(iii) of this Agreement, unless it is terminated solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, the Deposit shall be retained by Seller as full, complete, liquidated damages ("Liquidated Damages"), as provided below. If Seller terminates this Agreement under Section 10(a)(iii) of this Agreement solely because of a breach by Buyer of a representation or warranty of which Buyer was not actually aware was inaccurate when made, Seller shall only retain that portion of the Deposit necessary to reimburse its reasonable out-of-pocket expenses in connection with the transactions contemplated hereby and the remaining amount of the Deposit, if any, shall be returned to Buyer. Notwithstanding any other provisions of this Agreement to the contrary, Buyer and Seller agree that, 's default in the event that Buyer breaches a representation or warranty (except for inaccuracies performance of which Buyer was not aware, as set forth above) any obligation or covenant contained herein or otherwise fails to perform its obligations under this Agreement prior to Closing, Seller shall have 3102/001/106725 the closing hereunderright, in Seller’s sole discretion, to terminate this Agreement and shall be entitled to retain the amount of the Deposits to be paid as provided in this Agreement, plus accrued interest thereon, as liquidated damages. Seller and Buyer expressly acknowledge and agree that in the event of such a default under this Agreement by Buyer, (i) Seller will be materially damaged, (ii) with the fluctuation in value of land, commercial property and retail property in the State of Hawaii, the unpredictable state of the economy and of governmental regulations, the nature of the real estate market in the State of Hawaii, the difficulty in evaluation of lost profits, and other factors which directly affect the value and marketability of the Property, it would be impracticable or extremely difficult and impracticable at this time to fix or determine Seller's actual damages. Thereforeestimate the amount of such damage, Buyer and Seller each agree that (iii) after negotiation, the Parties have agreed that, considering all of the circumstances existing as of the Effective Date, the amount of the liquidated damages has been agreed upon Deposits to be paid as liquidated damages after negotiation as the parties' provided in this Agreement, plus accrued interest thereon, is a reasonable estimate of Seller's the damages that Seller would incur in such event and as Seller's exclusive remedy against would not constitute a penalty or unreasonable forfeiture. In such event, Escrow Agent is hereby irrevocably instructed by Seller and Buyer in to release and disburse the event amount of the occurrence of any event described Deposits to be paid as provided in the first sentence of this Section (ii)Agreement, plus accrued interest thereon, to Seller. Buyer Such right to terminate and Seller each acknowledge that the payment of such liquidated damages is not intended as a forfeiture shall constitute Seller's sole and exclusive remedy for Buyer's default in the performance of any obligation or penaltycovenant under this Agreement prior to Closing, except that Seller shall be entitled to (A) exercise any rights or remedies it may have at law or in equity by virtue of any provision of this Agreement which expressly survives the termination of this Agreement and/or any indemnity created or granted herein, and (B) recover the costs and expenses of enforcing this Agreement, including reasonable attorneys' fees. If after Closing, Buyer defaults in any material respect in its obligations hereunder or breaches a material representation or material warranty or covenant herein or otherwise fails to perform any of its obligations under this Agreement after the which survive Closing, Seller shall be entitled to assert all claims and to may exercise all remedies any remedy available to it at law or in equity; PROVIDED. In such event, HOWEVERthe liquidated damages provision contained in this Section shall not apply to, that Seller shall have no right to consequential nor limit, nor be an offset against Seller's recoverable damages.