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

Buyer's Default; Liquidated Damages. If the Closing and the consummation of the transaction contemplated by this Agreement do not occur solely as a result of a default by Buyer, and Buyer fails to cure such default within five (5) business days’ notice thereof, then Seller, as its sole and exclusive remedy for Buyer’s default, shall be entitled to terminate this Agreement and retain the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder as liquidated damages, in which event neither party shall thereafter have any further liability or obligation to the other, except for any indemnity or other provisions in this Agreement that specifically survive the Closing or the earlier termination of this Agreement. If Buyer defaults in any of its other representations, warranties or obligations under this Agreement, and such default continues for more than ten (10) days after written notice from Seller, then Seller ​ may terminate this Agreement at any time prior to such default being cured by giving written notice thereof, and upon termination Buyer shall forfeit the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder, and the Escrow Agent shall deliver the Deposit and any such Development Approvals Extension Deposits to Seller, and neither party shall be obligated to proceed with the purchase and sale of the Property. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES DUE TO A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF THE DEPOSIT AND ANY DEVELOPMENT APPROVALS EXTENSION DEPOSITS HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM OR RELATED TO A BREACH BUYER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND THAT PAYMENT OF SUCH AMOUNT TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY. _____________________________________ Seller’s InitialsBuyer’s Initials

Buyer's Default; Liquidated Damages. If the Closing and the consummation of the transaction contemplated by this Agreement do not occur solely as a result of a default by BuyerIF BUYER EXERCISES THE OPTION IN ACCORDANCE WITH THIS AGREEMENT, and Buyer fails to cure such default within five (5) business days’ notice thereof, then Seller, as its sole and exclusive remedy for Buyer’s default, shall be entitled to terminate this Agreement and retain the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder as liquidated damages, in which event neither party shall thereafter have any further liability or obligation to the other, except for any indemnity or other provisions in this Agreement that specifically survive the Closing or the earlier termination of this Agreement. If Buyer defaults in any of its other representations, warranties or obligations under this Agreement, and such default continues for more than ten (10) days after written notice from Seller, then Seller ​ may terminate this Agreement at any time prior to such default being cured by giving written notice thereof, and upon termination Buyer shall forfeit the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder, and the Escrow Agent shall deliver the Deposit and any such Development Approvals Extension Deposits to Seller, and neither party shall be obligated to proceed with the purchase and sale of the Property. IN THE PARTIES HAVE AGREED EVENT THAT SELLER’S ACTUAL DAMAGES DUE SALE AND CONVEYANCE OF THE PROPERTY TO BUYER UNDER THIS AGREEMENT SHALL NOT BE CONSUMMATED BECAUSE OF A DEFAULT BY BUYER, BUYER WOULD BE EXTREMELY DIFFICULT WILL ABSORB ALL OF ITS COSTS RELATED TO THE TRANSACTION (SUCH AS APPRAISAL COSTS, TITLE REPORTS AND COSTS OF DUE DILIGENCE) AND SELLER SHALL RETAIN THE DEPOSIT, AND ANY ACCRUED INTEREST THEREON, AS LIQUIDATED DAMAGES, AND SELLER WAIVES ANY FURTHER RIGHTS TO CLAIM DAMAGES FROM BUYER OR IMPRACTICABLE TO DETERMINESEEK OTHER LEGAL OR EQUITABLE REMEDIES. THEREFORENOTWITHSTANDING THE FOREGOING, BY PLACING THEIR INITIALS BELOW, NOTHING CONTAINED IN THIS SECTION SHALL AFFECT IN ANY MANNER THE PARTIES ACKNOWLEDGE THAT THE AMOUNT INDEMNIFICATION PROVISIONS CONTAINED IN THIS AGREEMENT. SELLER’S RETENTION OF THE DEPOSIT AND ANY DEVELOPMENT APPROVALS EXTENSION DEPOSITS HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM OR RELATED TO A BREACH BUYER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND THAT PAYMENT OF SUCH AMOUNT TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO COMPENSATE SELLER FOR DAMAGES IT WILL SUSTAIN BY REASON OF SUCH DEFAULT BY BUYER, INCLUDING DAMAGES RESULTING FROM THE REMOVAL OF THE PROPERTY FROM THE MARKET, THE LOSS OF BUSINESS OPPORTUNITIES AND THE LOSS OF PROSPECTIVE INVESTMENTS IN OTHER PROPERTIES. _____________________________________ Seller’s InitialsBuyer’s InitialsSELLER AND BUYER AGREE AND ACKNOWLEDGE THAT THE AMOUNT OF SELLER’S ACTUAL DAMAGES AS A RESULT OF BUYER’S DEFAULT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN, AND THE AMOUNT PROVIDED FOR HEREIN IS A REASONABLE ESTIMATE OF SUCH DAMAGES. THE AGREEMENT BY SELLER TO ACCEPT THE FOREGOING AMOUNT OF LIQUIDATED DAMAGES SHALL NOT IMPAIR THE AGREEMENT BETWEEN SELLER AND BUYER THAT THE OPTION PRICE HAS BEEN DELIVERED TO SELLER IN CONSIDERATION OF SELLER’S GRANTING OF THE OPTION TO BUYER. INITIALS: Seller Buyer

Buyer's Default; Liquidated Damages. If the Closing and the consummation of the transaction contemplated by this Agreement do not occur solely as a result of a default by BuyerIF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY ON OR BEFORE THE CLOSING DATE SET FORTH HEREIN, and Buyer fails to cure such default within five THEN (5a) business days’ notice thereofSELLER SHALL BE RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER, then SellerAND (b) SELLER SHALL HAVE THE RIGHT TO PURSUE ANY REMEDY IN LAW OR EQUITY THAT IT MAY HAVE AGAINST BUYER ON ACCOUNT OF SUCH DEFAULT, as its sole and exclusive remedy for Buyer’s defaultPROVIDED, shall be entitled to terminate this Agreement and retain the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder as liquidated damagesHOWEVER, in which event neither party shall thereafter have any further liability or obligation to the other, except for any indemnity or other provisions in this Agreement that specifically survive the Closing or the earlier termination of this Agreement. If Buyer defaults in any of its other representations, warranties or obligations under this Agreement, and such default continues for more than ten (10) days after written notice from Seller, then Seller ​ may terminate this Agreement at any time prior to such default being cured by giving written notice thereof, and upon termination Buyer shall forfeit the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder, and the Escrow Agent shall deliver the Deposit and any such Development Approvals Extension Deposits to Seller, and neither party shall be obligated to proceed with the purchase and sale of the Property. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES DUE TO A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOWBELOW BUYER AND SELLER AGREE THAT: (a) IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS SET FORTH HEREIN, ESCROW HOLDER SHALL IMMEDIATELY DELIVER THE DEPOSIT TO SELLER WITHOUT ANY FURTHER INSTRUCTION FROM ANY PARTY TO THIS AGREEMENT AND THE DEPOSIT SHALL BE NON-REFUNDABLE LIQUIDATED DAMAGES TO SELLER AS SELLER'S DAMAGES WOULD OTHERWISE BE DIFFICULT TO CALCULATE OR ASCERTAIN. SELLER SHALL RETAIN, AS LIQUIDATED DAMAGES FOR BREACH OF CONTRACT ON AC- COUNT OF SUCH BUYER'S DEFAULT, THE PARTIES ACKNOWLEDGE THAT DEPOSIT ACTUALLY PAID; PROVIDED, HOW- EVER, THE AMOUNT RETAINED BY SELLER SHALL NOT EXCEED TEN PERCENT (10%) OF THE DEPOSIT AND ANY DEVELOPMENT APPROVALS EXTENSION DEPOSITS HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS PURCHASE PRICE. (b) THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM OR RELATED TO A BREACH BUYER OF ITS OBLIGATION TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND THAT PAYMENT OF SUCH AMOUNT LIQUIDATED DAMAGES TO SELLER OUT OF BUYER'S DEPOSIT SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF SELLER ON AC- COUNT OF THE DEFAULT OF THE BUYER. (c) IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS LIQUIDATED DAMAGES IS SET FORTH HEREIN, BUYER RELEASES THEIR RIGHTS TO PURCHASE THE PROPERTY DE- SCRIBED IN THE AGREEMENT. BUYER HEREBY AGREES THAT THE RELEASE PROVIDED FOR IN THIS AGREEMENT EXTENDS TO ALL CLAIMS, WHETHER OR NOT INTENDED AS A FORFEITURE CLAIMED OR PENALTY. _____________________________________ Seller’s InitialsBuyer’s InitialsSUSPECTED BY BUYER, UP TO AND INCLUDING THE DATE OF THE EXECUTION HEREOF.

Buyer's Default; Liquidated Damages. If the Closing and the consummation of the transaction contemplated by this Agreement do not occur solely as a result of a default by BuyerNOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, and Buyer fails to cure such default within five (5) business days’ notice thereof, then Seller, as its sole and exclusive remedy for Buyer’s default, shall be entitled to terminate this Agreement and retain the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder as liquidated damages, in which event neither party shall thereafter have any further liability or obligation to the other, except for any indemnity or other provisions in this Agreement that specifically survive the Closing or the earlier termination of this Agreement. If Buyer defaults in any of its other representations, warranties or obligations under this Agreement, and such default continues for more than ten (10) days after written notice from Seller, then Seller ​ may terminate this Agreement at any time prior to such default being cured by giving written notice thereof, and upon termination Buyer shall forfeit the Deposit and any Development Approvals Extension Deposits deposited with Escrow Holder, and the Escrow Agent shall deliver the Deposit and any such Development Approvals Extension Deposits to Seller, and neither party shall be obligated to proceed with the purchase and sale of the Property. IF THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES DUE TO A SALE OF THE PROPERTY IS NOT CONSUMMATED BY REASON OF ANY MATERIAL DEFAULT BY BUYER WOULD UNDER THIS AGREEMENT, THEN SELLER SHALL BE EXTREMELY DIFFICULT OR IMPRACTICABLE ENTITLED TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT COLLECT LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT. UPON ANY SUCH DEFAULT BY BUYER, ESCROW HOLDER SHALL RELEASE THE INITIAL DEPOSIT (AND IF BUYER HAS PREVIOUSLY DELIVERED THE ADDITIONAL DEPOSIT TO ESCROW HOLDER, THE ADDITIONAL DEPOSIT) TO SELLER IN FULL SATISFACTION THEREOF. BUYER AND SELLER AGREE THAT SELLER’S DAMAGES WHICH WOULD RESULT FROM BUYER’S FAILURE TO ACQUIRE THE PROPERTY AS A RESULT OF BUYER’S MATERIAL DEFAULT ARE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES IN THE AMOUNT OF THE INITIAL DEPOSIT AND ANY DEVELOPMENT APPROVALS EXTENSION DEPOSITS HAS BEEN AGREED UPONTHE ADDITIONAL DEPOSIT, AFTER NEGOTIATIONIF AND WHEN DELIVERED TO ESCROW HOLDER, AS THE PARTIES’ REPRESENTS A REASONABLE ESTIMATE OF SELLER’S SUCH DAMAGES. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM OR RELATED TO FOR A BREACH MATERIAL DEFAULT BY BUYER OF ITS OBLIGATION TO CONSUMMATE PURCHASE THE TRANSACTIONS CONTEMPLATED BY PROPERTY UNDER THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND THAT PAYMENT OF SUCH AMOUNT TO SELLER AS LIQUIDATED DAMAGES AGREEMENT IS NOT INTENDED AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. _____________________________________ Seller’s InitialsBuyer’s InitialsTHE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION CONTAINED IN THIS SECTION. THIS PROVISION SHALL NOT LIMIT OR RESTRICT SELLER’S RIGHT TO RECOVER ITS ATTORNEYS’ FEES AND COSTS IN ANY ACTION, PROCEEDING OR ARBITRATION ARISING FROM THIS AGREEMENT, OR SELLER’S RIGHTS AND BUYER’S OBLIGATIONS UNDER ANY INDEMNITY PROVISIONS CONTAINED IN THIS AGREEMENT AND SELLER SHALL BE ENTITLED TO RECOVERY OF ALL AMOUNTS PAYABLE WITH RESPECT TO THOSE PROVISIONS IN ADDITION TO THE LIQUIDATED DAMAGES PAYABLE UNDER THIS SECTION.