Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]
Appears in 2 contracts
Samples: Purchase Contract (Apple REIT Eight, Inc.), Purchase Contract (Apple REIT Eight, Inc.)
Buyer’s Default. SUBJECT IF THE CLOSING UNDER THIS AGREEMENT FAILS TO ARTICLE XVIIOCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER FAILS OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO COMPLETE THE PURCHASE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, TERMS HEREOF OR (D) THE TERMINATION ABILITY AND RIGHT OF THIS AGREEMENT BY BUYER PURSUANT SELLER TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE ENFORCE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURESURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 LIQUIDATED DAMAGES PROVISION SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR BREACH OF ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE CONFIDENTIALITY PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR NONDISCLOSURE PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS CONTAINED IN OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT, Inc.), Purchase and Sale Agreement (Steadfast Apartment REIT, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER CLOSING FAILS TO COMPLETE THE PURCHASE OCCUR BECAUSE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING BUYER’S DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT OF A DEFAULT BY BUYER DISPUTES SELLER’S RIGHT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO RECEIVE ASCERTAIN BECAUSE OF THE NATURE OF THE PROPERTY AND RETAIN THAT THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER REPRESENTS THE PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGESDAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 13.3, SELLER AND BUYER AGREE THAT IT WOULD THIS LIQUIDATED DAMAGES PROVISION IS INTENDED TO BE EXTREMELY DIFFICULT SELLER’S SOLE AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF EXCLUSIVE REMEDY FOR A DEFAULT BY BUYER BUYER, BUT IS NOT INTENDED AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT SHOULD NOT BE DEEMED OR CONSTRUED TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES LIMIT IN LIGHT OF SELLERANY WAY BUYER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. SELLER WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER RELEVANT STATUTORY LAW TO SEEK SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY OTHER THAN THE RECEIPT OF THE DEPOSIT. IN THE EVENT OF BUYER’S DEFAULT AND THE TERMINATION OF THIS TRANSACTION, THE LEASE SHALL NONETHELESS CONTINUE IN FULL FORCE AND EFFECT. SELLER’S INITIALS: / [Initials of Buyer and Seller]BUYER’S INITIALS:
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY REASON RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER THAN (A) A DEFAULT REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER AFTER IN THE EXPIRATION EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, PROVIDED, HOWEVER, THAT IN THE EVENT OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION BREACH OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWAFTER THE CLOSING DELIVERY DATE AND BEFORE THE CLOSING, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER THE XXXXXXX MONEY DEPOSIT, BUYER SHALL ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET COSTS INCURRED BY SELLER AS IN CONNECTION WITH THE DEFEASANCE OF SELLER’S CURRENT LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000.00) AND SUCH AMOUNT TOGETHER WITH THE XXXXXXX MONEY DEPOSIT SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE RIGHT PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED WHICH SELLER MIGHT BE ENTITLED BY SELLER VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE FIRST SENTENCE OF THIS SECTION 8.1 AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGESSELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF APPLY TO ANY OF THE CONFIDENTIALITY INDEMNITY OR NONDISCLOSURE ATTORNEYS' FEE PROVISIONS CONTAINED IN UNDER THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller].
Appears in 2 contracts
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.), Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVIIProvided that Seller has materially complied with its obligations hereunder and the conditions set forth in Section 4B have been satisfied, if Buyer fails to complete the Closing in accordance with the terms of this Agreement, then in addition to (i) any rights or remedies that Seller may have in connection therewith under the Lease, and (ii) any loss of rights that Buyer may incur in connection therewith and under the Lease (collectively, the “Lease Implications”), the Deposit shall be retained by Seller as liquidated and agreed damages for such breach, which shall be Seller’s sole and exclusive right and remedy under this Agreement for such breach, whereupon this Agreement shall become null and void and neither party hereto shall have any further rights, liabilities or obligations hereunder except those obligations which expressly survive termination THE PARTIES ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT THE SALE IS NOT CONSUMMATED ARE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE AT THE EFFECTIVE DATE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 7(A) BELOW, THE PARTIES ACKNOWLEDGE THAT BUYER FAILS TO COMPLETE THE PURCHASE AMOUNT OF THE PROPERTY FOR DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND NOT A PENALTY, AND SHALL (ASIDE FROM THE LEASE IMPLICATIONS, WHICH SHALL NOT BE LIMITED IN ANY REASON OTHER THAN (A) WAY BY THIS SECTION BE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER ARISING FROM A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION THE SALE TO BUYERCLOSE. IN ADDITION, BUYER SHALL PAY ALL COSTS AND EXPENSES ALLOCABLE TO BUYER PURSUANT TO SECTION 6(A), AS WELL AS ALL TITLE AND ESCROW CANCELLATION CHARGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 7(A) LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER PARTY DUE TO THE OTHER PARTY’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND INDEMNIFY SUCH PARTY IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER ACCORDANCE WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION 14 OF THIS AGREEMENT. BY SEPARATELY EXECUTING THIS SECTION 7(A). BELOW, WHICH OBLIGATIONS SHALL BE PERFORMABLE BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT CONSEQUENCES OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND THIS LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF PROVISION AT THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURETIME THIS AGREEMENT WAS EXECUTED. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALSBy: / [Initials of Buyer and Seller]By: Name: Name: Title: Title:
Appears in 2 contracts
Samples: Lease Agreement (Isis Pharmaceuticals Inc), Lease Agreement (Isis Pharmaceuticals Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE WHICH IS NOT CURED WITHIN THREE (3) BUSINESS DAYS OF NOTICE OF DEFAULT, SELLER'S SOLE REMEDY (EXCEPT AS PROVIDED BY LAW, SELLER BELOW) SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RETAIN THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND DEPOSIT AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED 1677. THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER FOREGOING SHALL NOT CONSTITUTE A PENALTY LIMIT SELLER'S REMEDIES WITH RESPECT TO BUYER'S OBLIGATIONS UNDER PARAGRAPHS 14 AND 17 OF THIS AGREEMENT OR FORFEITURETHE ATTORNEYS' FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. SELLER'S INITIALS BUYER'S INITIALS: / [Initials of Buyer and Seller]
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO REASON OF A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWMATERIAL DEFAULT OF BUYER, SELLER SHALL HAVE BE RELEASED FROM SELLER'S OBLIGATION TO SELL THE RIGHT PROPERTY TO TERMINATE THIS AGREEMENT BUYER AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ENTITLED TO RETAIN ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. BUYER AND SELLER HEREBY ACKNOWLEDGE AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX OR ESTABLISH THE ACTUAL DAMAGES TO DAMAGE SUSTAINED BY SELLER AS A RESULT OF A SUCH DEFAULT BY BUYER, AND AGREE THAT THE DEPOSIT, THE PAYMENT BY BUYER OF ALL ESCROW AND THAT THEY HAVE AGREED TITLE CANCELLATION CHARGES AND FEES, AND THE DEPOSIT DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS IS A FAIR REASONABLE APPROXIMATION THEREOF. ACCORDINGLY, IN THE EVENT THAT BUYER BREACHES THIS AGREEMENT BY MATERIALLY DEFAULTING IN THE COMPLETION OF THE PURCHASE OF THE PROPERTY, THE DEPOSIT, THE PAYMENT BY BUYER OF ALL ESCROW AND REASONABLE AMOUNT TITLE CANCELLATION CHARGES AND FEES, AND THE DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS SHALL CONSTITUTE AND BE DEEMED TO BE RETAINED BY SELLER AS THE AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL , AND SHALL BE PAID BY BUYER TO SELLER AS SELLER'S SOLE AND EXCLUSIVE REMEDY. SELLER AGREES TO WAIVE ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) BUYER'S OBLIGATIONS TO PAY TO SELLER ALL ATTORNEYS' FEES AND COSTS OF SELLER TO ENFORCE THE PROVISIONS OF THIS SECTION 5.1 AND/OR BUYER'S SURVIVING OBLIGATIONS, OR (B) THE ABILITY AND RIGHT OF SELLER TO ENFORCE BUYER'S SURVIVING OBLIGATIONS. THE PAYMENT OF THE PROPERTY FROM DEPOSIT, THE MARKET PAYMENT BY BUYER OF ALL ESCROW AND TITLE CANCELLATION CHARGES AND FEES, AND THE COSTS INCURRED DELIVERY TO SELLER BY SELLER AND THAT RETENTION BUYER OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL DUE DILIGENCE MATERIALS AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]LIQUIDATED DAMAGES TO SELLER.
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Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS DEFAULTS IN ITS OBLIGATIONS TO COMPLETE CLOSE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING SELLER'S DEFAULT, (C) THE FAILURE BUYER'S DISAPPROVAL OF ANY CONDITION TO CONTINGENCY OR BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION 'S EXERCISE OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE ITS RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT PURSUANT TO THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION TERMS OF THIS AGREEMENT, WHICH OBLIGATIONS AND BUYER FAILS TO CURE SUCH DEFAULT WITHIN TEN (10) BUSINESS DAYS AFTER RECEIVING WRITTEN NOTICE OF SUCH DEFAULT FROM SELLER, OR, IF SUCH DEFAULT IS NOT REASONABLY SUSCEPTIBLE OF BEING CURED WITHIN SUCH TEN (10) DAY PERIOD, IF BUYER FAILS TO COMMENCE TO CURE SUCH DEFAULT WITHIN SUCH TEN (10) DAY PERIOD, THEN, UPON DEMAND BY SELLER, THE DEPOSIT SHALL BE PERFORMABLE PAID TO AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER THE PARTIES HERETO EXPRESSLY AGREE AND BUYER AGREE ACKNOWLEDGE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX SELLER'S ACTUAL DAMAGES TO SELLER AS A RESULT IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES. IN ANY AND ALL INTEREST ACCRUED THEREON) BY ACTIONS BROUGHT PURSUANT TO OR TO ENFORCE BUYER'S OBLIGATIONS UNDER THIS AGREEMENT, IT SHALL BE CONCLUSIVELY PRESUMED THAT THE ABOVE-DESCRIBED LIQUIDATED DAMAGES SHALL BE THE SOLE REMEDY OF SELLER IN THE EVENT OF BUYER'S DEFAULT HEREUNDER AND IT SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING BE PROPER UNDER ANY CIRCUMSTANCES THAT BUYER'S OBLIGATION TO PURCHASE THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]PROPERTY BE SPECIFICALLY ENFORCED.
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Samples: Purchase and Sale Agreement (Irvine Apartment Communities L P)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER BREACHES OR FAILS TO COMPLETE THE PERFORM ITS OBLIGATION TO PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY UNDER THIS AGREEMENT, THEN SELLER AFTER SHALL, AS ITS SOLE REMEDY THEREFOR, BE ENTITLED TO RECEIVE THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER DEPOSIT MADE PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWSECTION 2 HEREOF, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. THEREAFTER, BOTH THEREUPON THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND RELEASED FROM ANY FURTHER LIABILITY LIABILITIES HEREUNDER, EXCEPT FOR THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE CLOSING OR TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE INDEMNIFICATION OBLIGATIONS EXPRESSLY DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN ANY THIS SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION REPRESENTS BOTH PARTIES’ EFFORTS TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED APPROXIMATE SUCH POTENTIAL DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, OR ANY OTHER PROVISION TO THE CONTRARY, THIS SECTION 14.1 10.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY IN NO WAY LIMIT OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTRESTRICT SELLER’S RECOVERY UNDER SECTION 5.2 ABOVE AND/OR SECTION 14.10 BELOW. INITIALS: / [/s/ WC Seller’s Initials of Buyer and Seller]/s/ AB /s/ JB Buyer’s Initials
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Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF THE INVESTIGATION PERIOD, IF THE CLOSING DOES NOT OCCUR AS A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE RESULT OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION DEFAULT HEREUNDER, INCLUDING BUYER’S FAILURE TO CLOSE THIS TRANSACTION WHICH TIMELY DELIVER THE ADDITIONAL DEPOSIT, PROVIDED SELLER IS EXPRESSLY SET FORTH HEREINNOT IN DEFAULT HEREUNDER, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT BY GIVING WRITTEN NOTICE THEREOF TO BUYER, WHEREUPON THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) DEPOSIT SHALL BE DELIVERED PAID TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH DEFAULT HEREUNDER BY BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION TO THE OTHER HEREUNDER, EXCEPT FOR PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT SELLER THEY SHALL ALSO HAVE SURVIVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATIONTERMINATION OF THIS AGREEMENT; PROVIDED, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES HOWEVER, THAT THIS PROVISION WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES PURSUANT TO SECTION 15.1 BELOW, NOR WAIVE OR AFFECT ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, NOR LIMIT BUYER’S LIABILITY TO SELLER FOR ANY BREACH BY BUYER OF THE ACCESS AGREEMENT. THE PARTIES ACKNOWLEDGE AND RETAIN AGREE THAT SELLER’S ACTUAL DAMAGES IN THE FULL EVENT OF BUYER’S DEFAULT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. THE PAYMENT OF THE DEPOSIT TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE DAMAGES UNDER THE CIRCUMSTANCES PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO FIX ACTUAL CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF A DEFAULT THE CALIFORNIA CIVIL CODE. BY BUYER AND THAT THEY HAVE AGREED PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE DEPOSIT IS A FAIR AND REASONABLE ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND OF LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AGREED UPON, AND THE COSTS INCURRED FACT THAT EACH PARTY WAS REPRESENTED BY SELLER AND THAT RETENTION COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]LIQUIDATED DAMAGES PROVISION.
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Samples: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Buyer’s Default. SUBJECT IF THE SALE CONTEMPLATED HEREBY IS NOT CONSUMMATED BECAUSE OF A DEFAULT BY BUYER IN ITS OBLIGATION TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THEN: (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE THIS AGREEMENT SHALL EXTEND THE TIME FOR CLOSING) TERMINATE; (B) THE EXISTENCE OF A PENDING DEFAULT, DEPOSIT SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES; AND (C) THE FAILURE OF ANY CONDITION SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION EACH OTHER EXCEPT THOSE WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) SURVIVE THE TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER PURSUANT WOULD BE DIFFICULT OR IMPOSSIBLE TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS INTEREST REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY LAW, SELLER SHALL HAVE IF THE RIGHT TRANSACTION SHOULD FAIL TO TERMINATE CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND IN SUCH EVENT UNDER THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT CIRCUMSTANCES THAT SELLER SHALL ALSO HAVE AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE RIGHT TO COLLECT FROM TIME OF SUCH BREACH. BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES AGREE THAT SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL ANY INTEREST ACCRUED THEREON), WHICH SUMS AND EARNINGS EARNED THEREON SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF SOLE REMEDY, AT LAW AND IN EQUITY, FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY FROM IN ACCORDANCE WITH THE MARKET AND THE TERMS OF THIS AGREEMENT. HOWEVER, NOTHING IN THIS SECTION 6.1 SHALL (i) PREVENT OR PRECLUDE SELLER’S RECOVERY OF REASONABLE ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER AND THAT RETENTION PURSUANT TO SECTION 9.8 BELOW, OR (ii) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS BUYER’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]SELLER HEREBY WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER CLOSING FAILS TO COMPLETE THE PURCHASE OCCUR BECAUSE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING BUYER’S DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT OF A DEFAULT BY BUYER DISPUTES SELLER’S RIGHT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO RECEIVE ASCERTAIN BECAUSE OF THE NATURE OF THE PROPERTY AND RETAIN THAT THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER REPRESENTS THE PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGESDAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 13.3, SELLER AND BUYER AGREE THAT IT WOULD THIS LIQUIDATED DAMAGES PROVISION IS INTENDED TO BE EXTREMELY DIFFICULT SELLER’S SOLE AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF EXCLUSIVE REMEDY FOR A DEFAULT BY BUYER BUYER, BUT IS NOT INTENDED AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT SHOULD NOT BE DEEMED OR CONSTRUED TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES LIMIT IN LIGHT OF SELLERANY WAY BUYER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. INITIALS: / [Initials of SELLER WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER RELEVANT STATUTORY LAW TO SEEK SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY OTHER THAN THE RECEIPT OF THE DEPOSIT. IN THE EVENT OF BUYER’S DEFAULT AND THE TERMINATION OF THIS TRANSACTION, THE LEASE SHALL NONETHELESS CONTINUE IN FULL FORCE AND EFFECT. Assignments. Buyer and any subsequent assignee may only assign this Agreement or its or their respective rights hereunder with Xxxxxx’s prior written consent, unless the assignment is to an entity affiliated with or controlling, controlled by, or under common control with Buyer, in which case Seller]’s consent shall not be required for any such assignment; provided that Buyer and any subsequent assignee may not be released from its or their obligations under this Agreement in connection with any such assignment. To the extent that Xxxxxx’s consent is required in connection with an assignment, Xxxxxx agrees that its consent will not be unreasonably withheld, conditioned, or delayed. Any assignee shall assume all of Xxxxx's or subsequent assignee’s obligations hereunder and succeed to all of Xxxxx's or any subsequent assignee’s rights and remedies hereunder, and any assignment and assumption must be in writing and delivered to Seller at least five (5) business days prior to the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT TO ARTICLE XVIIIn the event Buyer defaults in its obligations to close the purchase of the Property, IN or in the event Buyer otherwise defaults hereunder prior to Closing, then (i) Seller shall receive the Xxxxxxx Money as fixed and liquidated damages, this Agreement shall terminate, and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement and (ii) Buyer shall immediately direct the Title Company to pay the Xxxxxxx Money to Seller. Seller shall have no other remedy for any pre-Closing default by Buyer, including any right to damages. BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT: (1) THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE AMOUNT OF THE PROPERTY FOR ANY REASON OTHER THAN (A) XXXXXXX MONEY IS A DEFAULT REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AFTER AS A RESULT OF HAVING WITHDRAWN THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE PROPERTY FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) SALE AND THE FAILURE OF ANY CONDITION CLOSING TO BUYER’S OBLIGATION HAVE OCCURRED DUE TO CLOSE A DEFAULT OF BUYER UNDER THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR AGREEMENT; (D2) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT ACTUAL DAMAGES SUFFERED AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED COSTS INCURRED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT A RESULT OF SUCH WITHDRAWAL AND FAILURE TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED CLOSE DUE TO A DEFAULT OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF BUYER UNDER THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL DAMAGES DETERMINE; (3) BUYER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE XXXXXXX MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE XXXXXXX MONEY SHALL BE AND DOES CONSTITUTE VALID LIQUIDATED DAMAGES. All of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, at law or in equity, in the event of a default by Buyer pursuant to Sections 6.2, 6.5, 8, 13.3, or 18.3, or pursuant to any covenant, agreement, indemnity, representation or warranty of Buyer that survives the Closing or the termination of this Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL AND TRANSFER THE PROPERTY OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE XXXXXXX MONEY TO SELLER AS IF REQUIRED BY CLOSING AGENT (EACH A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER“BUYER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY ACTION”), SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING BE RESTRICTED BY THE FOREGOING, PROVISIONS OF THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM ANY IMPROPERLY FILED LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF ANY BUYER’S ACTION BUT ONLY TO THE EXTENT THAT SELLER IS THE PREVAILING PARTY; AND THE AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT BUYER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF ANY OF BUYER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED BELOW. NOTWITHSTANDING THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]FOREGOING, BUYER MAY FILE A LIS PENDENS TO THE EXTENT NECESSARY TO PRESERVE A CLAIM FOR SPECIFIC PERFORMANCE.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Property (Investors Real Estate Trust)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION MATERIAL TERMS OF THIS AGREEMENT, WHICH OBLIGATIONS ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE PERFORMABLE AND OWING IN ADDITION FORFEITED TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, THE SOLE AND EXCEPT THAT EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL ALSO HAVE NO OTHER REMEMDY IN THE RIGHT EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO COLLECT FROM BUYER ALL COSTS THE CLOSING AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES SELLER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. THE PARTIES HAVE DISCUSSED AND EXPENSES) INCURRED NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER SELLER IS IN COMPLIANCE WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT IT WOULD DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND ASCERTAIN. THE PARTIES HEREBY AGREE THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL THE AMOUNT OF THE PROPERTY FROM THE MARKET BUYER'S XXXXXXX MONEY DEPOSIT ARE AND THE COSTS INCURRED BY SELLER WILL BE REASONABLE, AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT CONSTITUTE AS A PENALTY OR FORFEITUREPENALTY. WITHOUT LIMITING THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF APPLY TO ANY OF THE CONFIDENTIALITY INDEMNITY OR NONDISCLOSURE ATTORNEYS' FEE PROVISIONS CONTAINED IN UNDER THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller].
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER CLOSE OF ESCROW FAILS TO COMPLETE THE PURCHASE OCCUR SOLELY BECAUSE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY BUYER UNDER THIS AGREEMENT, THEN SELLER AFTER MAY UNILATERALLY INSTRUCT ESCROW HOLDER TO CANCEL THE EXPIRATION ESCROW AND SELLER SHALL THEREUPON BE RELEASED FROM ITS OBLIGATIONS HEREUNDER. BUYER AND SELLER AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER'S DAMAGES BY REASON OF BUYER'S DEFAULT. ACCORDINGLY, BUYER AND SELLER AGREE THAT IT WOULD BE REASONABLE AT SUCH TIME TO AWARD SELLER "LIQUIDATED DAMAGES" EQUAL TO THE AMOUNT OF THE DEPOSITS AND ALL INTEREST EARNED THEREON. SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THE FOREGOING AMOUNT IS REASONABLE AS LIQUIDATED DAMAGES AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT OR REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED BY REASON OF BUYER'S DEFAULT. ACCORDINGLY, PROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SELLER'S UNILATERAL INSTRUCTION TO TERMINATE THE ESCROW, ESCROW HOLDER SHALL CANCEL THE ESCROW AND DISBURSE THE DEPOSITS AND INTEREST EARNED THEREON TO SELLER. FOR THE PURPOSE OF THE FOREGOING PROVISIONS OF THIS SECTION 14.3, BUYER SHALL BE DEEMED TO HAVE COMMITTED A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND MATERIAL DEFAULT UNDER THIS AGREEMENT AT THE TIME FOR CLOSING) (B) THE EXISTENCE BUYER IS IN FACT IN DEFAULT AND/OR BUYER NOTIFIES SELLER OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT 'S ELECTION TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO ESCROW AT A TIME WHEN BUYER DOES NOT HAVE THE RIGHT UNDER THE TERMS OF THIS AGREEMENT TO COLLECT FROM BUYER SO TERMINATE THIS AGREEMENT OR THE ESCROW. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION, SELLER WAIVES ANY AND ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY RIGHTS WHICH SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT OTHERWISE WOULD HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3389 TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGESSPECIFICALLY ENFORCE THIS AGREEMENT. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND EACH ACKNOWLEDGE THAT THEY HAVE AGREED READ AND UNDERSTAND THE DEPOSIT IS A FAIR PROVISIONS OF THIS SECTION 14.3 AND REASONABLE AMOUNT BY THEIR SIGNATURES IMMEDIATELY BELOW AGREE TO BE RETAINED BOUND BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF ITS TERMS. SELLER’S REMOVAL OF : BUYER: THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT VONS COMPANIES, INC., PACIFIC GULF PROPERTIES, INC. a Michigan corporation a Maryland corporation By: /s/ DONAXX X. XXXXXX By: /s/ DONAXX X. XXXXXXX ------------------------------- ----------------------------------- Print Name: DONAXX X. XXXXXX Print Name: DONAXX X. XXXXXXX ------------------------ --------------------------- Its: SR. VICE-PRES Its: EVP ------------------------------ ---------------------------------- By: /s/ PATRXXXX X. XXXXXX By: /s/ LONNXX XXXXX ------------------------------- ----------------------------------- Print Name: PATRXXXX X. XXXXXX Print Name: LONNXX XXXXX ------------------------ --------------------------- Its: ASSISTANT SECRETARY Its: S.V.P. ------------------------------ ---------------------------------- Execution San Diego, CA (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]Miramar DistCntr)
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / ___________/___________ [Initials of Buyer and Seller] 14.2 Seller’s Default. SUBJECT TO ARTICLE XVII, IF BUYER TENDERS PERFORMANCE OF ALL OF ITS OBLIGATIONS IN ACCORDANCE WITH THIS AGREEMENT AND SELLER REFUSES OR FAILS TO CONVEY THE PROPERTY AS HEREIN PROVIDED FOR ANY REASON OTHER THAN (A) A DEFAULT BY BUYER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM BUYER, (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF A CONDITION TO SELLER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) ANY OTHER PROVISION OF THIS AGREEMENT THAT EXPRESSLY PERMITS SELLER TO TERMINATE THIS AGREEMENT OR OTHERWISE RELIEVES SELLER OF THE OBLIGATION TO CONVEY THE PROPERTY, BUYER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER EITHER TO TERMINATE THIS AGREEMENT AND RECOVER THE DEPOSIT, IN WHICH CASE BUYER SHALL ALSO BE ENTITLED TO RECOVER ITS ACTUAL OUT-OF-POCKET EXPENSES IN CONNECTION WITH THE PROPOSED ACQUISITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION, DUE DILIGENCE AND NEGOTIATIONS WITH SELLER AND LENDERS, IF APPLICABLE), NOT TO EXCEED THE SUM OF ONE HUNDRED THOUSAND DOLLARS ($100,000), OR TO ENFORCE, SELLER’S OBLIGATIONS UNDER THIS AGREEMENT TO CONVEY THE PROPERTY BY AN ACTION FOR SPECIFIC PERFORMANCE, PROVIDED THAT NO SUCH ACTION IN SPECIFIC PERFORMANCE SHALL SEEK TO REQUIRE SELLER TO DO ANY OF THE FOLLOWING: (A) CHANGE THE CONDITION OF THE PROPERTY OR RESTORE THE SAME AFTER ANY FIRE OR OTHER CASUALTY; (B) EXPEND MONEY OR POST A BOND TO REMOVE A TITLE ENCUMBRANCE OR DEFECT (OTHER THAN A SELLER’S MONETARY LIEN) OR CORRECT ANY MATTER SHOWN ON A SURVEY OF THE PROPERTY; OR (C) SECURE ANY PERMIT, APPROVAL, OR CONSENT WITH RESPECT TO THE PROPERTY OR SELLER’S CONVEYANCE OF THE PROPERTY. INITIALS: ___________/___________ [Initials of Buyer and Seller]
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII(a) If, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN on or before Closing (Ai) A DEFAULT Buyer is in default of any of its obligations hereunder (other than Buyer’s obligations to deliver the documents and funds at Closing in accordance with Section 8.1 (for which there will be no notice or cure period)), or (ii) 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 any of the foregoing clauses (i) or (ii) continues for three (3) business days after written notice from Seller to Buyer, then Seller shall have the right to terminate this Agreement by written notice to Buyer.
(b) IF THIS AGREEMENT IS TERMINATED BY SELLER AFTER AS PROVIDED IN SECTION 2.4(A) ABOVE, THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) DEPOSIT SHALL BE DELIVERED PAID TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT AND AS SELLER’S SOLE REMEDY FOR SUCH BREACH OR DEFAULT AND NEITHER PARTY SHALL HAVE ANY OBLIGATION TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY THE OTHER HEREUNDER, EXCEPT FOR PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THEY SURVIVE THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION TERMINATION OF THIS AGREEMENT. BUYER AND SELLER HEREBY REPRESENT AND AGREE (I) THAT EACH PARTY HAS CAREFULLY CONSIDERED THE REASONABLE RANGE OF ACTUAL DAMAGES THAT COULD BE ANTICIPATED FROM A FUTURE BREACH OR DEFAULT BY BUYER UNDER THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING (II) BY REASON OF EACH PARTY’S BUSINESS EXPERIENCE IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE INVESTING IN REAL ESTATE TRANSACTIONS (1) GIVEN THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT CURRENT ACTIVE STATE OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON)REAL ESTATE MARKET AND THE POSSIBLE MARKET EVENTS THAT MAY OR MAY NOT OCCUR BETWEEN THE DATE HEREOF AND THE CLOSING DATE, WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX DETERMINE ACTUAL DAMAGES TO SELLER AS FOR A RESULT OF A FUTURE BREACH OR DEFAULT BY BUYER UNDER THIS AGREEMENT, (2) THEY ARE AWARE OF AND THAT ACCEPT THE RISKS AND BENEFITS OF AGREEING TO LIQUIDATED DAMAGES IN A REAL ESTATE CONTRACT, (3) THEY EACH HAVE AGREED THE REAL ESTATE EXPERTISE AND RESOURCES TO EVALUATE AND NEGOTIATE THE FAIR AND REASONABLE AMOUNT OF SUCH LIQUIDATED DAMAGES AND AGREE THE DEPOSIT IS AMOUNT HAS BEEN NEGOTIATED AT ARMS’ LENGTH BY THE PARTIES AND THEIR ATTORNEYS AS A FAIR AND REASONABLE AMOUNT OF ESTIMATED DAMAGES TO SELLER IN THE EVENT OF BUYER DEFAULT OR BREACH, AND (III) BUYER AND SELLER HAVE EACH BEEN REPRESENTED BY SOPHISTICATED COUNSEL IN THE PREPARATION AND NEGOTIATION OF THIS AGREEMENT AND LIQUIDATED DAMAGES PROVISION. AFTER CAREFUL CONSIDERATION AND OPPORTUNITY TO DISCUSS WITH COUNSEL, SELLER AND BUYER AGREE, BY PLACING THEIR INITIALS BELOW, THAT THE DEPOSIT AND ALL INTEREST THEREON IS A REASONABLE ESTIMATE OF THE DAMAGES THAT WILL BE RETAINED INCURRED BY SELLER IF, AND CONSTITUTES A REASONABLE AMOUNT OF LIQUIDATED DAMAGES IN THE EVENT THAT, BUYER DEFAULTS UNDER OR BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. WITHOUT LIMITATION OF THE FOREGOING, THE DEPOSIT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL PURSUANT TO SECTION 64.04.005 OF THE PROPERTY FROM REVISED CODE OF WASHINGTON. NOTHING IN THIS SECTION SHALL PRECLUDE THE MARKET AND THE RECOVERY OF REASONABLE ATTORNEYS’ FEES OR OTHER ACTUAL OUT-OF-POCKET THIRD PARTY COSTS PURSUANT TO SECTION 9.2 INCURRED BY SELLER AND THAT RETENTION IN ENFORCING THIS AGREEMENT OR LIMIT THE EFFECTIVENESS OF THE DEPOSIT (TOGETHER PROVISIONS OF SECTION 2.4(C) BELOW OR THE INDEMNIFICATION OBLIGATIONS OF BUYER UNDER THIS AGREEMENT. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS LIQUIDATED DAMAGES PROVISION CONTAINED IN THIS AGREEMENTSECTION 2.4(B). /s/ BH SELLER’S INITIALS /s/ JG BUYER’S INITIALS: / [Initials of Buyer and Seller]
(c) IF SELLER TERMINATES THIS AGREEMENT PURSUANT TO A RIGHT GIVEN TO IT HEREUNDER AND BUYER TAKES ANY ACTION WHICH INTERFERES WITH SELLER’S ABILITY TO SELL, EXCHANGE, TRANSFER, LEASE, DISPOSE OF OR FINANCE THE PROPERTY OR TAKE ANY OTHER ACTIONS WITH RESPECT THERETO (INCLUDING, WITHOUT LIMITATION, THE FILING OF ANY LIS PENDENS OR OTHER FORM OF ATTACHMENT AGAINST THE PROPERTY), THEN NOTWITHSTANDING SECTION 2.4(B) ABOVE, SELLER’S REMEDIES SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, THOSE DESCRIBED IN SECTION 2.4(B) ABOVE, AND THE NAMED BUYER (AND ANY PERMITTED ASSIGNEE OF BUYER’S INTEREST HEREUNDER) SHALL ALSO BE LIABLE FOR ALL LOSS, COST, DAMAGE, LIABILITY OR EXPENSE (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, COURT COSTS AND DISBURSEMENTS AND CONSEQUENTIAL DAMAGES) INCURRED BY SELLER BY REASON OF SUCH ACTION TO CONTEST BY BUYER. /s/ BH SELLER’S INITIALS /s/ JG BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase Agreement (Invesco Real Estate Income Trust Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE REMEDY (EXCEPT AS PROVIDED BY LAW, SELLER BELOW) SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND XXXXXXX MONEY AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE XXXXXXX MONEY WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED 1677. THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF FOREGOING SHALL NOT LIMIT SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION AND THE COSTS INCURRED BY SELLER AND THAT RETENTION ATTORNEYS’ FEES OBLIGATIONS) OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. /s/ BN /s/ HS SELLER’S INITIALS BUYER’S INITIALS: / [Initials of Buyer and Seller]
Appears in 1 contract
Samples: Purchase and Sale Agreement (Rexford Industrial Realty, Inc.)
Buyer’s Default. IN THE EVENT THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO THE DEFAULT OF BUYER THAT IS NOT CURED WITHIN TEN (10) DAYS AFTER RECEIPT OF WRITTEN NOTICE FROM SELLER SPECIFYING SUCH DEFAULT, THEN SELLER’S RETENTION OF THE DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, FOR SUCH DEFAULT, SUBJECT TO ARTICLE XVIITHE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER’S RIGHTS OR DAMAGES UNDER ANY INDEMNITIES GIVEN BY BUYER TO SELLER UNDER THIS AGREEMENT. SELLER AND BUYER HAVE DISCUSSED THE POSSIBLE CONSEQUENCES TO SELLER IN THE EVENT THAT BUYER THE ESCROW FAILS TO COMPLETE CLOSE AS A RESULT OF BUYER’S DEFAULT. SELLER AND BUYER HAVE DETERMINED AND HEREBY AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX THE PURCHASE ACTUAL DAMAGES TO SELLER OCCURRING IN THE EVENT OF BUYER’S DEFAULT UNDER THIS AGREEMENT. THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES SELLER AFTER WOULD SUFFER IN THE EXPIRATION EVENT OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE BUYER’S NONPERFORMANCE OF ANY CONDITION OBLIGATION HEREUNDER, HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES IS AN AMOUNT EQUAL TO THE DEPOSIT, AND IN THE EVENT THIS TRANSACTION FAILS TO CLOSE DUE TO BUYER’S OBLIGATION TO CLOSE DEFAULT UNDER THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWAGREEMENT, SELLER SHALL HAVE BE ENTITLED TO RECEIVE AND RETAIN THE SAME AS FULLY AGREED LIQUIDATED DAMAGES. SELLER WAIVES ANY AND ALL RIGHT TO TERMINATE THIS AGREEMENT SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE PAYMENT AND IN SUCH EVENT RETENTION OF THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER DEPOSIT AS LIQUIDATED DAMAGES WITH RESPECT IS NOT INTENDED AS A FORFEITURE OR PENALTY 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 HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON ANY SUCH DEFAULT. THEREAFTERBREACH OR DEFAULT BY BUYER HEREUNDER, BOTH PARTIES THIS AGREEMENT SHALL BE RELIEVED OF TERMINATED AND RELEASED FROM NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION RIGHT OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION SELLER TO ANY SUMS RETAINED HEREUNDER BY SELLER AS RETAIN SUCH LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE AS EXPRESSLY PROVIDED ABOVE. THE RIGHT TO COLLECT FROM BUYER ALL COSTS PARTIES AGREE THAT, UNDER THE CIRCUMSTANCES OF THIS TRANSACTION AND EXPENSES (INCLUDING WITHOUT LIMITATIONTHE MARKETPLACE AT THE TIME HEREOF, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND THIS LIQUIDATED DAMAGES PROVISION IS REASONABLE AND IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER ACCORDANCE WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS CALIFORNIA CIVIL CODE SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]1671.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Shopoff Properties Trust, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEMDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY REASON RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER THAN (A) A DEFAULT REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER AFTER IN THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM EVENT SELLER (PROVIDED NO NOTICE SHALL EXTEND IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION PROPERTY DUE TO BUYER’S OBLIGATION 'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO CLOSE THIS TRANSACTION WHICH ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, PROVIDED, HOWEVER, THAT IN THE EVENT THE LOAN IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION TO BE DEFEASED AND THERE IS A BREACH OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWAFTER THE CLOSING DELIVERY DATE AND BEFORE THE CLOSING, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER THE XXXXXXX MONEY DEPOSIT, BUYER SHALL ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET COSTS INCURRED BY SELLER AS IN CONNECTION WITH THE DEFEASANCE OF SELLER’S CURRENT LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000.00) AND SUCH AMOUNT TOGETHER WITH THE XXXXXXX MONEY DEPOSIT SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE RIGHT PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED WHICH SELLER MIGHT BE ENTITLED BY SELLER VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE FIRST SENTENCE OF THIS SECTION 8.1 AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGESSELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF APPLY TO ANY OF THE CONFIDENTIALITY INDEMNITY OR NONDISCLOSURE ATTORNEYS' FEE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]UNDER THIS
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. If Buyer has defaulted in its obligations at any time that prevents the consummation of this transaction as contemplated by this Agreement, then, Seller shall be entitled to terminate this Agreement and Escrow Agent shall deliver the Deposit to Seller, as liquidated damages as Seller’s sole and exclusive remedy for default by Buyer. Upon such termination by Seller, this Agreement shall be null and void in all respects, and thereafter neither Party shall have any further rights, liabilities or obligations hereunder, except as expressly provided in those sections hereof which state that they expressly survive such termination. The provisions of this Section 14(b) shall survive the Closing or any termination of this Agreement and shall not impair or affect rights, liabilities or obligations which as expressly provided in those sections hereof state that they expressly survive such Closing or termination. THE PARTIES HERETO, BEFORE ENTERING INTO THIS AGREEMENT, HAVE BEEN CONCERNED WITH THE FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT BUYER SHOULD FAIL TO PURCHASE THE PROPERTY SUBJECT TO ARTICLE XVIIAND IN ACCORDING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. THE PARTIES, HAVING MADE A DILIGENT ENDEAVOR TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES WHICH SELLER WOULD SUFFER IN THE EVENT OF BUYER’S FAILURE TO PURCHASE THE PROPERTY SUBJECT TO AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, HEREBY AGREE THAT THE REASONABLE ESTIMATE OF SAID DAMAGES IS THE SUM EQUAL TO THE AMOUNT OF THE DEPOSIT. THEREFORE, IN THE EVENT THAT BUYER FAILS THE SALE CONTEMPLATED HEREBY SHALL FAIL TO COMPLETE THE PURCHASE OF THE PROPERTY CLOSE FOR ANY REASON OTHER THAN (A) A SELLER’S DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, HEREUNDER OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR AS OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SELLER SHALL BE PERFORMABLE ENTITLED TO AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER SHALL RETAIN THE ENTIRE DEPOSIT AS LIQUIDATED DAMAGES, DAMAGES AND EXCEPT THAT SELLER SHALL ALSO HAVE AS ITS SOLE REMEDY AT LAW OR IN EQUITY. THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE LIQUIDATED DAMAGES HAS BEEN ESTABLISHED BY THE PARTIES AS THE AMOUNT OF THE MONETARY DAMAGES SELLER WILL SUFFER BASED SOLELY UPON A FAILURE BY BUYER TO PURCHASE THE PROPERTY AND SELLER IN ADDITION SHALL BE ENTITLED TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND RECOVER NO OTHER DAMAGES FROM BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS BASED SOLELY UPON A RESULT OF A DEFAULT FAILURE BY BUYER AND THAT THEY HAVE AGREED TO PURCHASE THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]PROPERTY.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ARTICLE XVII, ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT THAT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION BREACH OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE BUYER. THE RIGHT TO TERMINATE THIS AGREEMENT AND IN PAYMENT OF SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AMOUNT AS LIQUIDATED DAMAGES WITH RESPECT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369 BUT IS INTENDED TO SUCH DEFAULTCONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671, 1676 AND 1677. THEREAFTERSELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON DEFAULT SOLELY BY BUYER, BOTH PARTIES THIS AGREEMENT SHALL BE RELIEVED OF TERMINATED AND RELEASED FROM NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW HOLDER. THE FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO THE INDEMNITY PROVIDED BY BUYER PURSUANT TO THE PROVISIONS OF PARAGRAPHS 14 AND 18 OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES . SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / 'S INITIALS BUYER'S INITIALS [Initials of Buyer and Seller]SIG] ------------------------ -----------------------
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN (1) ESCROW HOLDER SHALL IMMEDIATELY RELEASE TO SELLER ANY AND ALL DEPOSITS IN ESCROW AS SELLER'S LIQUIDATED DAMAGES AND (2) SELLER SHALL BE ENTITLED TO RETAIN ANY AND ALL SUMS CONSTITUTING DEPOSITS AS SELLER'S FULL COMPENSATION AND LIQUIDATED DAMAGE (SUBJECT TO THE PROVISIONS OF SECTION 10.8) UNDER AND IN CONNECTION WITH THIS AGREEMENT. THE PARTIES AGREE THAT BUYER FAILS IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER THAT UNDER THE CIRCUMSTANCES EXISTING AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON)EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER WILL INCUR AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED SUCH FAILURE (SUBJECT TO THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES PROVISIONS OF SECTION 10.8). IN LIGHT OF SELLER’S REMOVAL THE EVENT THE SALE OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREBE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE DEPOSITS SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT (SUBJECT TO THE PROVISIONS OF SECTION 10.8). WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [_________________ ________________ Seller's Initials of Buyer and Seller]Buyer's Initials
Appears in 1 contract
Samples: Real Property Purchase and Sale Agreement (Hines Horticulture Inc)
Buyer’s Default. SUBJECT THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED SUFFERED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT FAILS TO RECEIVE PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT IN VIOLATION OF ITS OBLIGATIONS UNDER THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND ASCERTAIN. THE PARTIES HEREBY AGREE THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT THE AMOUNT OF THE BUYER’S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE. IN THE EVENT OF SUCH BREACH, AS SELLER’S REMOVAL SOLE AND EXCLUSIVE REMEDY, SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER’S FAILURE TO PURCHASE THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER SHALL BE SELLER’S SOLE AND THAT RETENTION EXCLUSIVE REMEDY FOR BUYER’S BREACH OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURETHIS AGREEMENT. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.1 DO NOT APPLY TO ARTICLE 6, SECTIONS 7.4 AND 7.16 AND SUBSECTION 2.5.4 OF THIS AGREEMENT OR ANY OTHER PROVISION THAT HAS AN EXPRESS INDEMNITY OBLIGATION THEREIN (IT BEING UNDERSTOOD AND AGREED THAT SELLER’S SOLE REMEDY WITH RESPECT TO SUCH SECTIONS SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BE AS SET FORTH IN SUCH APPLICABLE SECTION), OR, WITH RESPECT TO ANY BREACH OF WHICH SELLER FIRST BECOMES AWARE AFTER CLOSING, ANY OF PROVISION THAT SURVIVES THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]CLOSING.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT III, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE REASON OF ANY DEFAULT OF BUYER, SELLER'S SOLE REMEDY (EXCEPT AS PROVIDED BY LAW, SELLER BELOW) SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND DEPOSIT AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL DAMAGES TO SELLER COMPLETE THE PURCHASE OF THE PROPERTY AS A RESULT OF A DEFAULT BY HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT THEY HAVE AGREED A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO WHICH SHALL BE RETAINED BY SELLER AS THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IN LIGHT IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. THE FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO BUYER'S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 13 AND 16 OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET THIS AGREEMENT AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREATTORNEYS' FEES PROVISION SET FORTH IN PARAGRAPH 17 BELOW. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]4061526v11
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER BREACHES OR FAILS TO COMPLETE THE PERFORM ITS OBLIGATION TO PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY UNDER THIS AGREEMENT, THEN SELLER AFTER SHALL, AS ITS SOLE REMEDY THEREFOR, BE ENTITLED TO RECEIVE THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER DEPOSIT MADE PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWSECTION 2 HEREOF, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. THEREAFTER, BOTH THEREUPON THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND RELEASED FROM ANY FURTHER LIABILITY LIABILITIES HEREUNDER, EXCEPT FOR THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE CLOSING OR TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE INDEMNIFICATION OBLIGATIONS EXPRESSLY DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN ANY THIS SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION REPRESENTS BOTH PARTIES’ EFFORTS TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED APPROXIMATE SUCH POTENTIAL DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, OR ANY OTHER PROVISION TO THE CONTRARY, THIS SECTION 14.1 10.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY IN NO WAY LIMIT OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTRESTRICT SELLER’S RECOVERY UNDER SECTION 5.2.2 ABOVE AND/OR SECTION 14.10 BELOW. INITIALS: / [RS Seller’s Initials of Buyer and Seller]LS Buyer’s Initials
Appears in 1 contract
Buyer’s Default. SUBJECT IF THE SALE CONTEMPLATED HEREBY IS NOT CONSUMMATED BECAUSE OF A DEFAULT BY BUYER IN ITS OBLIGATION TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THEN: (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE THIS AGREEMENT SHALL EXTEND THE TIME FOR CLOSING) TERMINATE; (B) THE EXISTENCE OF A PENDING DEFAULT, DEPOSIT SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES; AND (C) THE FAILURE OF ANY CONDITION SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION EACH OTHER EXCEPT THOSE WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) SURVIVE THE TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER PURSUANT WOULD BE DIFFICULT OR IMPOSSIBLE TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS INTEREST REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY LAW, SELLER SHALL HAVE IF THE RIGHT TRANSACTION SHOULD FAIL TO TERMINATE CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND IN SUCH EVENT UNDER THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT CIRCUMSTANCES THAT SELLER SHALL ALSO HAVE AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE RIGHT TO COLLECT FROM TIME OF SUCH BREACH. BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES AGREE THAT SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL ANY INTEREST ACCRUED THEREON), WHICH SUMS AND EARNINGS EARNED THEREON SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF SOLE REMEDY, AT LAW AND IN EQUITY, FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY FROM IN ACCORDANCE WITH THE MARKET AND THE TERMS OF THIS AGREEMENT. HOWEVER, NOTHING IN THIS SECTION 6.1 SHALL (i) PREVENT OR PRECLUDE SELLER’S RECOVERY OF REASONABLE ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER AND THAT RETENTION PURSUANT TO SECTION 9.8 BELOW, OR (ii) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS BUYER’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]SELLER HEREBY WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT. INITIALS RH SELLER AT BUYER
Appears in 1 contract
Samples: Real Estate Purchase Agreement
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE REMEDY (EXCEPT AS PROVIDED BY LAW, SELLER BELOW) SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND DEPOSIT AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED 1677. THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF FOREGOING SHALL NOT LIMIT SELLER’S REMOVAL REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14, 17 AND 21.15 OF THE PROPERTY FROM THE MARKET THIS AGREEMENT AND THE COSTS INCURRED BY SELLER ATTORNEYS’ FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW, AND ANY OBLIGATIONS UNDER THIS AGREEMENT THAT RETENTION EXPRESSLY SURVIVE THE CLOSE OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY ESCROW OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH ANY EXPIRATION OR TERMINATION OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller].
Appears in 1 contract
Samples: Purchase and Sale Agreement (Shopoff Properties Trust, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF BUYER'S DEFAULT UNDER THIS AGREEMENT, THEN (a) ESCROW HOLDER SHALL IMMEDIATELY RELEASE TO SELLER ANY AND ALL DEPOSITS IN ESCROW AS SELLER'S LIQUIDATED DAMAGES AND (b) SELLER SHALL BE ENTITLED TO RETAIN ANY AND ALL SUMS CONSTITUTING DEPOSITS AS SELLER'S FULL COMPENSATION AND LIQUIDATED DAMAGE (SUBJECT TO THE PROVISIONS OF SECTION 15.14) UNDER AND IN CONNECTION WITH THIS AGREEMENT. THE PARTIES AGREE THAT BUYER FAILS IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER THAT UNDER THE CIRCUMSTANCES EXISTING AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON)EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER WILL INCUR AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED SUCH FAILURE (SUBJECT TO THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES PROVISIONS OF SECTION 15.14). IN LIGHT OF SELLER’S REMOVAL THE EVENT THE SALE OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREBE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE DEPOSITS SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT (SUBJECT TO THE PROVISIONS OF SECTION 15.14). WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [----------------- ----------------- Seller's Initials of Buyer and Seller]Buyer's Initials
Appears in 1 contract
Buyer’s Default. SUBJECT If Buyer defaults in performance any of its covenants or obligations under this Agreement, in any material respect, which default is not caused by Seller Default, Seller shall deliver notice to Buyer of its default promptly after Seller becomes aware of the default, and if the default is not cured prior to the earlier of thirty (30) days after such notice or the Closing Date (each, a “Buyer Default”), then Seller, as its sole and exclusive remedy, may elect to (a) terminate this Agreement by providing written notice to Buyer and recover liquidated damages as provided below, subject to the provisions of Section 14.20; or (b) waive any Buyer Default at or prior to the Closing and proceed to the Closing without any adjustment to the Purchase Price. If Seller terminates this Agreement pursuant to this Section 10.1, Seller shall provide written notice to Escrow Holder and Buyer directing Escrow Holder to disburse the Xxxxxxx Money to Seller, and Escrow Holder shall comply with Section 15.1.4 in regard to the disposition of the Xxxxxxx Money. BUYER ACKNOWLEDGES THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ARTICLE XVIICALCULATE ACTUAL DAMAGES CAUSED BY A BREACH OF ANY REPRESENTATION, WARRANTY, OBLIGATION, OR COVENANT OF BUYER CONTAINED IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULTTHIS AGREEMENT INCLUDING WITHOUT LIMITATION, (C) THE FAILURE OF ANY CONDITION BUYER TO PURCHASE THE PROPERTY AND THE BUSINESS, WHERE SUCH FAILURE WAS NOT DUE TO A SELLER DEFAULT OR FAILURE OF A CLOSING CONDITION. BUYER AND SELLER THEREFORE AGREE THAT, UPON A BUYER DEFAULT, THE AMOUNT OF THE XXXXXXX MONEY IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES AND THAT SELLER SHALL BE ENTITLED TO SAID SUM AS LIQUIDATED DAMAGES, WHICH SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY, EITHER AT LAW OR IN EQUITY. IN SUCH EVENT, THE ESCROW HOLDER SHALL, UPON WRITTEN DEMAND BY SELLER WITHOUT JOINDER OF BUYER, IMMEDIATELY DELIVER THE XXXXXXX MONEY TO SELLER IN CASH OR OTHER IMMEDIATELY AVAILABLE FUNDS. THE FOREGOING DOES NOT LIMIT BUYER’S OBLIGATION TO CLOSE LIABILITY UNDER ANY INDEMNITY OR OTHER PROVISION OF THIS TRANSACTION AGREEMENT WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE BY ITS TERMS SURVIVES A TERMINATION OF THIS AGREEMENT OR IS TO BE PERFORMED AFTER CLOSING. TO SIGNIFY THEIR AWARENESS AND AGREEMENT TO BE BOUND BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT TERMS AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION PROVISIONS OF THIS AGREEMENTSECTION 10.1, WHICH OBLIGATIONS SHALL BE PERFORMABLE BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGESSEPARATELY INITIALED THIS SECTION. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer ________BUYER INITIALS: ________ Notwithstanding the foregoing, the limitation to liquidated damages shall not apply (and Seller]Seller may seek any and all actual, consequential and other damages) respecting any indemnification claim permitted under this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Condor Hospitality Trust, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER CLOSING FAILS TO COMPLETE OCCUR DUE TO THE PURCHASE DEFAULT OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A BUYER AND SUCH DEFAULT BY SELLER AFTER THE EXPIRATION OF A IS NOT CURED WITHIN FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN DAYS AFTER NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER, THEN SELLER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SOLE REMEDY IN SUCH EVENT SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT TO RETAIN THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER XXXXXXX MONEY AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER WAIVING ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER OTHER RIGHTS OR REMEDIES IN THE EVENT OF SUCH DEFAULT BY BUYER DISPUTES (PROVIDED THAT THIS PROVISION SHALL NOT (I) LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS FEES OR OTHER ENFORCEMENT COSTS PURSUANT TO SECTION 9.7, OR (II) WAIVE OR AFFECT SELLER’S RIGHTS AND RETAIN BUYER’S OBLIGATIONS UNDER ANY INDEMNIFICATION PROVISION IN THIS AGREEMENT). THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE PARTIES ACKNOWLEDGE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX SELLER’S ACTUAL DAMAGES TO SELLER AS A RESULT IN THE EVENT OF A DEFAULT BY BUYER UNDER THIS AGREEMENT WILL BE DIFFICULT TO ASCERTAIN, AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND SUCH LIQUIDATED DAMAGES IN LIGHT REPRESENT THE PARTIES’ BEST ESTIMATE OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT SUCH DAMAGES. SUCH RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) XXXXXXX MONEY BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTION 3275 OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY 3369 OF THE CONFIDENTIALITY CALIFORNIA CIVIL CODE OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTANY SIMILAR PROVISION. INITIALS: / [Initials of Buyer and IF SELLER IS ENTITLED TO THE XXXXXXX MONEY, SELLER SHALL RETAIN OR CAUSE ESCROW AGENT TO DELIVER THE ENTIRE XXXXXXX MONEY TO SELLER, AND BUYER SHALL DELIVER AN INSTRUMENT CONFIRMING SUCH RELEASE PROMPTLY UPON DEMAND OF SELLER. Seller]’s initials Buyer’s initials
Appears in 1 contract
Samples: Purchase and Sale Agreement (Universal Health Realty Income Trust)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE (BEYOND ANY APPLICABLE NOTICE AND CURE PERIODS). SELLER’S SOLE REMEDY (EXCEPT AS PROVIDED BY LAW, SELLER BELOW) SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND DEPOSIT AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED 1677. THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF FOREGOING SHALL NOT LIMIT SELLER’S REMOVAL REMEDIES WITH RESPECT TO BUYER’S EXPRESS OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THE PROPERTY FROM THE MARKET THIS AGREEMENT AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREATTORNEYS’ FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. SELLER’S INITIALS BUYER’S INITIALS: / [Initials of Buyer and Seller]
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVIIFROM AND AFTER THE EXPIRATION OF THE FEASIBILITY PERIOD, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE SALE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE TO A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWBUYER, THEN SELLER SHALL SHALL, AS ITS SOLE AND EXCLUSIVE REMEDY THEREFOR, HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND AGREEMENT, IN SUCH EVENT WHICH CASE IT SHALL BE ENTITLED TO RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH INCLUDING ALL ACCRUED INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. THEREAFTERUPON SUCH DEFAULT BY BUYER, BOTH THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND RELEASED FROM ANY FURTHER LIABILITY LIABILITIES HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS AS EXPRESSLY SET FORTH HEREIN. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER'S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION 11.1 REPRESENTS BOTH PARTIES' EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES AND IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE. NOTHING HEREIN SHALL LIMIT SELLER'S REMEDIES WITH RESPECT TO ANY SECTION BREACH OF ANY COVENANT OF BUYER TO INDEMNIFY, DEFEND, PROTECT OR HOLD HARMLESS SELLER OR TO REIMBURSE SELLER FOR ANY SUMS OTHERWISE PAYABLE TO SELLER (INCLUDING ATTORNEYS' FEES AND COSTS), OR TO PROVIDE CERTAIN DOCUMENTS TO SELLER AFTER TERMINATION AS PROVIDED HEREIN, TO THE EXTENT SUCH COVENANT SURVIVES THE TERMINATION OF THIS AGREEMENT OR THE CLOSING UNDER THE EXPRESS TERMS OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE . BUYER AND OWING IN ADDITION SELLER SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO ANY SUMS RETAINED HEREUNDER THE FOREGOING LIQUIDATED DAMAGES PROVISION BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER INITIALING THIS PARAGRAPH IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALSAPPROPRIATE SPACES PROVIDED BELOW: / [Buyer's Initials of Buyer and ________ Seller]'s Initials ___________
Appears in 1 contract
Samples: Purchase and Sale Agreement (Marvell Technology Group LTD)
Buyer’s Default. SUBJECT TO ARTICLE XVIINOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER HEREUNDER OR ANY EVENT EXPRESSLY PERMITTING TERMINATION UNDER THE PROVISIONS OF PARAGRAPHS 5, 6, 10 OR 13, BUYER WILL BE IN DEFAULT AND BUYER AND SELLER AGREE THAT AS A RESULT OF SUCH DEFAULT SELLER WILL INCUR SUBSTANTIAL DAMAGES THAT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX. ACCORDINGLY, THE PARTIES, AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULTNEGOTIATION, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO AGREED THAT SELLER SHALL BE RETAINED BY SELLERENTITLED TO RETAIN SUCH AMOUNTS AS BUYER HAS DEPOSITED, AND SUCH DEPOSITS (TOGETHER WITH OR HAS AGREED HEREIN TO DEPOSIT, INTO ESCROW PLUS ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTEREARNED FROM THE INVESTMENT THEREOF, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE WHICH SUM THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT PARTIES AGREE IS A REASONABLE ESTIMATE OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO DAMAGES SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER WILL SUFFER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A THE RESULT OF A DEFAULT BUYER’S DEFAULT; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT BE DEEMED TO LIMIT ANY OF BUYER’S INDEMNITIES CONTAINED HEREIN. BY BUYER INITIALING BELOW, EACH PARTY SPECIFICALLY AFFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT THEY HAVE AGREED SUCH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND CONSEQUENCES OF THIS LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF PROVISION AT THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURETIME THIS AGREEMENT WAS MADE. WITHOUT LIMITING THE FOREGOINGUpon receipt of written notice from Seller that Buyer is in default and that the provisions of this subparagraph apply, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTEscrow Agent shall immediately pay over to Seller the Deposit, and any interest thereon, then in Escrow. INITIALSBuyer: / [Initials of Buyer and Seller]:
Appears in 1 contract
Samples: Agreement for Purchase and Sale of Real Estate (Pc Mall Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION MATERIAL TERMS OF THIS AGREEMENT, WHICH OBLIGATIONS ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE PERFORMABLE AND OWING IN ADDITION FORFEITED TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, THE SOLE AND EXCEPT THAT EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL ALSO HAVE NO OTHER REMEMDY IN THE RIGHT EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO COLLECT FROM BUYER ALL COSTS THE CLOSING AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES SELLER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. THE PARTIES HAVE DISCUSSED AND EXPENSES) INCURRED NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER SELLER IS IN COMPLIANCE WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT IT WOULD DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, AND SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM 32 SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 8.1 SHALL NOT APPLY TO ANY INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT. Buyer's Initials /s/ DW Seller's Initials /s/ GKH 8.2 SELLER’S DEFAULT. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO SELLER BE SUFFERED BY BUYER IN THE EVENT THAT SELLER, WITHOUT LEGAL EXCUSE, BREACHES THIS AGREEMENT AND FAILS TO SELL THE PROPERTY TO BUYER IN ACCORDANCE WITH THE TERMS HEREOF. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES BUYER WOULD SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. ACCORDINGLY, THE PARTIES HEREBY AGREE THAT BUYER’S SOLE AND EXCLUSIVE REMEDY IN SUCH CASE SHALL BE TO EITHER: (I) COMMENCE AN ACTION FOR SPECIFIC PERFORMANCE UNDER THIS AGREEMENT, BUT NOT FOR DAMAGES OF ANY KIND, AND RECOVER ITS ATTORNEYS FEES INCURRED IN CONNECTION THEREWITH PURSUANT TO SECTION 7.4 HEREOF; PROVIDED, HOWEVER, IF SUCH DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR RESULT OF AN INTENTIONAL ACT OR WILLFUL MISCONDUCT OF SELLER WHICH RENDERS THE REMEDY OF SPECIFIC PERFORMANCE UNAVAILABLE, BUYER MAY, IN ADDITION TO THE REMEDY SET FORTH IN (II) BELOW, SEEK DAMAGES FROM SELLER IN THE AMOUNT OF BUYER’S OUT OF POCKET EXPENSES INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND REASONABLE THE OTHER PURCHASE AGREEMENTS UP TO A MAXIMUM AGGREGATE AMOUNT TO BE RETAINED BY SELLER AS AGREED OF $300,000, OR (II) TERMINATE THIS AGREEMENT AND LIQUIDATED DAMAGES RECEIVE A REFUND OF THE XXXXXXX MONEY DEPOSIT, PLUS ANY INTEREST THEREON, LESS THE INDEPENDENT CONSIDERATION. BUYER SHALL HAVE NO OTHER REMEDY IN LIGHT THE EVENT OF SELLER’S REMOVAL BREACH OF THIS AGREEMENT PRIOR TO THE PROPERTY FROM CLOSING AND BUYER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. AS A CONDITION PRECEDENT TO BUYER EXERCISING ANY RIGHT IT MAY HAVE TO BRING AN ACTION FOR SPECIFIC PERFORMANCE HEREUNDER, BUYER MUST COMMENCE SUCH AN ACTION WITHIN NINETY (90) DAYS AFTER THE MARKET AND THE COSTS INCURRED OCCURRENCE OF SELLER’S DEFAULT. BUYER AGREES THAT ITS FAILURE TO TIMELY COMMENCE SUCH AN ACTION FOR SPECIFIC PERFORMANCE WITHIN SUCH NINETY (90) DAY PERIOD SHALL BE DEEMED A WAIVER BY SELLER AND THAT RETENTION IT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREITS RIGHT TO COMMENCE AN ACTION FOR SPECIFIC PERFORMANCE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.2 33 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH APPLY TO ANY INDEMNITY, ATTORNEYS' FEE OR REIMBURSEMENT OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE BUYER’S COSTS PURSUANT TO SECTION 2.11 HEREOF PROVISIONS CONTAINED IN UNDER THIS AGREEMENT. INITIALS: / [Buyer's Initials of /s/ DW Seller's Initials /s/ GKH 8.3 Cross Terminations and Cross Defaults. On the Effective Date, i) Buyer and Seller]KBS Legacy Partners Crystal LLC, a Delaware limited liability company, have entered into an Agreement for Purchase and Sale regarding the Crystal Park at Waterford Apartments located in Frederick, Maryland (the “Crystal Purchase Agreement”), ii) Buyer and KBS Legacy Partners Dakota Hill LLC, a Delaware limited liability company, have entered into an Agreement for Purchase and Sale regarding Legacy at Valley Ranch Apartments in Irving, Texas (the “Valley Ranch Purchase Agreement”), and iii) Buyer and KBS Legacy Partners Pikesville LLC, a Delaware limited liability company, have entered into an Agreement for Purchase and Sale regarding the Residence at Waterstone Apartments located in Pikesville, Maryland (the “Waterstone Purchase Agreement”, and collectively with the Valley Ranch Purchase Agreement and the Crystal Purchase Agreement, the “Other Purchase Agreements”). The parties stipulate and agree to the following, provided that Seller may, in its sole discretion, elect to waive the terms of this Section 8.3 and proceed to Closing notwithstanding a termination of any of the Other Purchase Agreements or a default by Buyer under any of the Other Purchase Agreements: i) A termination of any of the Other Purchase Agreements for any reason prior to the Closing shall constitute a termination of this Agreement. In the event the Buyer is entitled to a return of any portion of the xxxxxxx money deposit under the Other Purchase Agreements as a result of the termination, Buyer shall receive a return of the Xxxxxxx Money Deposit less the Independent Consideration; and ii) A default by Buyer under this Agreement shall constitute a default of the same type and manner by Buyer under any of the Other Purchase Agreements which have not closed as of the date of such default. A default by Buyer under any of the Other Purchase Agreements prior to the Closing hereunder shall constitute a default by Buyer of the same type and manner under this Agreement. REMAINDER OF PAGE IS INTENTIONALLY BLANK. 34
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THE PURCHASE AND SALE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT ARE NOT CONSUMMATED BECAUSE OF A MATERIAL DEFAULT OF BUYER UNDER THIS AGREEMENT, SELLER SHALL BE ENTITLED, AS SELLER’S SOLE REMEDY (EXCEPT AS EXPRESSLY PROVIDED IN THE LAST SENTENCE OF THIS PARAGRAPH), TO TERMINATE THIS AGREEMENT AND RECEIVE THE DEPOSIT THERETOFORE DEPOSITED BY BUYER WITH ESCROW HOLDER AS LIQUIDATED DAMAGES AND SELLER SHALL BE RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY (OR ANY PORTION THEREOF) TO BUYER. BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT THERETOFORE DEPOSITED BY BUYER WITH ESCROW HOLDER WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY [WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369], BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AFTER [PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677]. THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE FOREGOING SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREINOBLIGATIONS (INCLUDING, OR (DWITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) THE TERMINATION UNDER PARAGRAPHS 14 AND 17 OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY PROVISIONS SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]PARAGRAPH 18 BELOW.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Real Estate Investment Trust Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE SALE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) IS NOT --------------- CONSUMMATED DUE TO A DEFAULT BY BUYER HEREUNDER AND THE SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULTIS NOT THEN IN DEFAULT HEREUNDER, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, THEN SELLER SHALL HAVE RETAIN THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER DEPOSIT AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS ("LIQUIDATED DAMAGES, ") AS SELLER'S SOLE AND EXCEPT THAT EXCLUSIVE REMEDY HEREUNDER. BUYER AND SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS IN THE CASE OF BUYER'S DEFAULT, AND THAT THE LIQUIDATED DAMAGES ARE A RESULT REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH EVENT. IN THE EVENT OF A DEFAULT BY BUYER AS AFORESAID AND THE SELLER IS NOT THEN IN DEFAULT HEREUNDER, THE ESCROW AGENT, UPON WRITTEN INSTRUCTIONS TO DO SO SHALL IMMEDIATELY DISBURSE THE DEPOSIT TO SELLER, AND SHALL CANCEL THE ESCROW CREATED PURSUANT HERETO, IN WHICH EVENT SELLER AND BUYER SHALL BE RELIEVED FROM ALL LIABILITY HEREUNDER EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT. RECEIPT OF SAID LIQUIDATED DAMAGES SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A BREACH BY BUYER AS AFORESAID. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE AGREED READ AND UNDERSTAND THE DEPOSIT IS A FAIR PROVISIONS OF THIS SECTION AND REASONABLE AMOUNT BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE RETAINED BOUND BY SELLER AS AGREED AND ITS TERMS. IN NO EVENT SHALL SELLER'S ACCEPTANCE OF THE LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE BE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH LIMIT OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS KIND ON BUYER'S EXPRESS INDEMNITY AND DEFENSE OBLIGATIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller].
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pinnacle Entertainment Inc)
Buyer’s Default. SUBJECT IF THE SALE CONTEMPLATED BY THE AGREEMENT AND FIFTH AMENDMENT IS NOT CONSUMMATED BECAUSE OF A DEFAULT BY BUYER IN ITS OBLIGATION TO ARTICLE XVII, PURCHASE THE PROPERTY IN ACCORDANCE WITH THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE TERMS OF THE PROPERTY FOR ANY REASON OTHER THAN AGREEMENT AS AMENDED BY THE FIFTH AMENDMENT, THEN: (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE AGREEMENT AND FIFTH AMENDMENT SHALL EXTEND THE TIME FOR CLOSING) TERMINATE; (B) THE EXISTENCE OF A PENDING DEFAULT, (C) DEPOSIT PLUS THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) SECOND ADDITIONAL DEPOSIT PLUS THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT THIRD ADDITIONAL DEPOSIT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED FOURTH ADDITIONAL DEPOSIT PREVIOUSLY PAID TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES; AND (C) SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO EACH OTHER EXCEPT THOSE THAT SURVIVE THE TERMINATION OF THE AGREEMENT AND FIFTH AMENDMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT OF A BREACH OF THE AGREEMENT AND FIFTH AMENDMENT BY BUYER DISPUTES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS THE SECOND ADDITIONAL DEPOSIT, AND THE THIRD ADDITIONAL DEPOSIT AND FOURTH ADDITIONAL DEPOSIT, PLUS INTEREST, REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THE FIFTH AMENDMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. BUYER AND SELLER AGREE THAT SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT DEPOSIT PLUS THE SECOND ADDITIONAL DEPOSIT, AND THE THIRD ADDITIONAL DEPOSIT AND FOURTH ADDITIONAL DEPOSIT, TOGETHER WITH ANY INTEREST AND EARNINGS EARNED THEREON, SHALL BE SELLER’S SOLE REMEDY, AT LAW AND IN EQUITY, FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE DEPOSIT AGREEMENT AND FIFTH AMENDMENT. HOWEVER, NOTHING IN THIS SECTION SHALL (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF i) PREVENT OR PRECLUDE SELLER’S REMOVAL RECOVERY OF THE PROPERTY FROM THE MARKET AND THE REASONABLE ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER AND THAT RETENTION PURSUANT TO SECTION 9.8 OF THE DEPOSIT ORIGINAL AGREEMENT, OR (TOGETHER WITH ALL INTEREST ACCRUED THEREONii) BY IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF BUYER’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THE ORIGINAL AGREEMENT. SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING HEREBY WAIVES ANY RIGHT TO AN ACTION AGAINST BUYER FOR BREACH SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT AND THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]FIFTH AMENDMENT .
Appears in 1 contract
Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Buyer’s Default. SUBJECT IF THE CLOSING UNDER THIS AGREEMENT FAILS TO ARTICLE XVIIOCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE AS AND WHEN REQUIRED UNDER THIS AGREEMENT, AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY (AS PERMITTED BY THE OFFICIAL CODE OF GEORGIA ANNOTATED (“O.C.G.A.”) §13-6-7). BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER’S BREACH OF BUYER’S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER’S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER FAILS OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO COMPLETE THE PURCHASE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, TERMS HEREOF OR (D) THE TERMINATION ABILITY AND RIGHT OF THIS AGREEMENT BY BUYER PURSUANT SELLER TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE ENFORCE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURESURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 LIQUIDATED DAMAGES PROVISION SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER LIQUIDATE OR LIMIT BUYER’S LIABILITY FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED BUYER’S INDEMNITIES SET FORTH IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]AGREEMENT THAT EXPRESSLY
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT III, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW AND/OR OTHERWISE IN EQUITY (EXCEPT AS PROVIDED BY LAW, SELLER BELOW) SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND DEPOSIT AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED 1677. THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF FOREGOING SHALL NOT LIMIT SELLER’S REMOVAL REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THE PROPERTY FROM THE MARKET THIS AGREEMENT AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREATTORNEYS’ FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]MV TT
Appears in 1 contract
Samples: Purchase and Sale Agreement (Armstrong Flooring, Inc.)
Buyer’s Default. SUBJECT TO ARTICLE XVIIFOLLOWING EXPIRATION OF THE DUE DILIGENCE PERIOD, IN THE EVENT THAT BUYER BREACHES OR FAILS TO COMPLETE THE PERFORM ITS OBLIGATION TO PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWTHIS AGREEMENT, THEN SELLER SHALL HAVE SHALL, AS ITS SOLE REMEDY THEREFOR, BE ENTITLED TO RECEIVE THE RIGHT DEPOSIT MADE PURSUANT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSITSECTION 2 HEREOF, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RELIEF, RIGHTS OR CLAIMS OF SELLER AGAINST BUYER, AT LAW OR IN EQUITY, BY REASON OF SUCH DEFAULT. THEREAFTER, BOTH THEREUPON THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND RELEASED FROM ANY FURTHER LIABILITY LIABILITIES HEREUNDER, EXCEPT FOR THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE CLOSING OR TERMINATION OF THIS AGREEMENT. SELLER HEREBY WAIVES ITS RIGHT TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT IN THE INDEMNIFICATION OBLIGATIONS EXPRESSLY EVENT OF BUYER’S BREACH OF ITS OBLIGATION TO PURCHASE THE PROPERTY. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN ANY THIS SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION REPRESENTS BOTH PARTIES’ EFFORTS TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED APPROXIMATE SUCH POTENTIAL DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, OR ANY OTHER PROVISION TO THE CONTRARY, THIS SECTION 14.1 10.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY IN NO WAY LIMIT OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTRESTRICT SELLER’S RECOVERY UNDER SECTION 5.2 ABOVE AND/OR SECTION 14.10 BELOW. INITIALS: / [/s/ WC Seller’s Initials of Buyer and Seller]/s/ MR Buyer’s Initials
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION TERMS OF THIS AGREEMENT, WHICH OBLIGATIONS ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE PERFORMABLE AND OWING IN ADDITION FORFEITED TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, THE SOLE AND EXCEPT THAT EXCLUSIVE REMEDY AVAILABLE TO SELLER SHALL ALSO FOR SUCH FAILURE. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE RIGHT QUESTION OF DAMAGES TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BE SUFFERED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER SELLER IS IN COMPLIANCE WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT IT WOULD DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND ASCERTAIN. THE PARTIES HEREBY AGREE THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL THE AMOUNT OF THE PROPERTY FROM BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE. IN THE MARKET EVENT OF SUCH BREACH, AS SELLER'S SOLE AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY EXCLUSIVE REMEDY, SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT CONSTITUTE AS A PENALTY OR FORFEITUREPENALTY. WITHOUT LIMITING THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF APPLY TO ANY OF THE CONFIDENTIALITY INDEMNITY OR NONDISCLOSURE ATTORNEYS' FEE PROVISIONS CONTAINED IN UNDER THIS AGREEMENT. INITIALS: / [Buyer's Initials of Buyer and /s/ J.R. Seller]'s Initials /s/ G.K.H.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. SUBJECT If this transaction shall not be closed because of default of Buyer, the Deposit shall be paid over to Seller as agreed and liquidated damages, it being acknowledged by Buyer and Seller that in such event Seller will suffer substantial damages but such damages are incapable of exact ascertainment. After payment to Seller of the Deposit, neither Seller nor Buyer shall have any further rights or obligations hereunder except that the parties shall remain obligated pursuant to the provisions hereof which survive termination. If subsequent to Closing Buyer shall fail to comply with its obligations contained herein which survive Closing, Seller, in addition to any rights and remedies provided herein, shall be entitled to any and all remedies available at law or in equity. SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE DIFFICULT TO ARTICLE XVIIDETERMINE, IN AND THAT THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE DEPOSIT IS A REASONABLE ESTIMATE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) SELLER’S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. SELLER AFTER AND BUYER FURTHER AGREE THAT THIS SECTION 10.1 IS INTENDED TO AND DOES LIQUIDATE THE EXPIRATION AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER’S EXCLUSIVE REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND BREACH BY BUYER OF ITS OBLIGATION TO CONSUMMATE THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULTTRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (C) THE FAILURE OF ANY CONDITION OTHER THAN WITH RESPECT TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT INDEMNITY AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLERCONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE RECOVER ITS REASONABLE ATTORNEYS’ FEES AND RETAIN EXPENSES. THE FULL PAYMENT OF SUCH AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO FIX ACTUAL CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE1677. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of _________________________ _________________________ Buyer and Seller]
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Property (Retail Opportunity Investments Corp)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER BREACHES OR FAILS TO COMPLETE THE PERFORM ITS OBLIGATION TO PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY UNDER THIS AGREEMENT, THEN SELLER AFTER SHALL, AS ITS SOLE REMEDY THEREFOR, BE ENTITLED TO RECEIVE THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER DEPOSIT MADE PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWSECTION 2 HEREOF, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. THEREAFTER, BOTH THEREUPON THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND RELEASED FROM ANY FURTHER LIABILITY LIABILITIES HEREUNDER, EXCEPT FOR THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE CLOSING OR TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE INDEMNIFICATION OBLIGATIONS EXPRESSLY DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN ANY THIS SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION REPRESENTS BOTH PARTIES’ EFFORTS TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED APPROXIMATE SUCH POTENTIAL DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, OR ANY OTHER PROVISION TO THE CONTRARY, THIS SECTION 14.1 10.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY IN NO WAY LIMIT OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTRESTRICT SELLER’S RECOVERY UNDER SECTION 5.2 ABOVE AND/OR SECTION 14.10 BELOW. INITIALS: / [/s/ WC Seller’s Initials of Buyer and Seller]/s/ CM Buyer’s Initials
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS 32 OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY REASON RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER THAN (A) A DEFAULT REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER AFTER IN THE EXPIRATION EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, PROVIDED, HOWEVER, THAT IN THE EVENT OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION BREACH OF THIS AGREEMENT BY BUYER AFTER THE CLOSING DELIVERY DATE AND BEFORE THE CLOSING, IN ADDITION TO THE XXXXXXX MONEY DEPOSIT, BUYER SHALL ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET COSTS INCURRED BY SELLER IN CONNECTION WITH THE DEFEASANCE OF SELLER’S CURRENT LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000.00) AND SUCH AMOUNT TOGETHER WITH THE XXXXXXX MONEY DEPOSIT SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY THEREFOR. NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 8.1 SHALL NOT APPLY TO ANY INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT. Buyer's Initials /s/ DW Seller's Initials /s/ GKH 8.2 SELLER’S DEFAULT. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY BUYER IN THE EVENT THAT SELLER, WITHOUT LEGAL EXCUSE, BREACHES THIS AGREEMENT AND FAILS TO SELL THE PROPERTY TO BUYER IN ACCORDANCE WITH THE TERMS HEREOF. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES BUYER WOULD SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND 33 IMPRACTICAL TO ASCERTAIN. ACCORDINGLY, THE PARTIES HEREBY AGREE THAT BUYER’S SOLE AND EXCLUSIVE REMEDY IN SUCH CASE SHALL BE TO EITHER: (I) COMMENCE AN ACTION FOR SPECIFIC PERFORMANCE UNDER THIS AGREEMENT, BUT NOT FOR DAMAGES OF ANY KIND, AND RECOVER ITS ATTORNEYS FEES INCURRED IN CONNECTION THEREWITH PURSUANT TO SECTION 7.4 HEREOF; PROVIDED, HOWEVER, IF SUCH DEFAULT IS A TERMINATION RIGHT EXPRESSLY RESULT OF AN INTENTIONAL ACT OR WILLFUL MISCONDUCT OF SELLER WHICH RENDERS THE REMEDY OF SPECIFIC PERFORMANCE UNAVAILABLE, BUYER MAY, IN ADDITION TO THE REMEDY SET FORTH HEREIN IN (II) BELOW, SEEK DAMAGES FROM SELLER IN THE AMOUNT OF BUYER’S OUT OF POCKET EXPENSES INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND THE OTHER PURCHASE AGREEMENTS UP TO A MAXIMUM AGGREGATE AMOUNT OF $300,000, OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO (II) TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE A REFUND OF THE XXXXXXX MONEY DEPOSIT, IF PLUS ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) , LESS THE INDEPENDENT CONSIDERATION. BUYER SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER NO OTHER REMEDY IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL BREACH OF THIS AGREEMENT PRIOR TO THE PROPERTY FROM CLOSING AND BUYER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. AS A CONDITION PRECEDENT TO BUYER EXERCISING ANY RIGHT IT MAY HAVE TO BRING AN ACTION FOR SPECIFIC PERFORMANCE HEREUNDER, BUYER MUST COMMENCE SUCH AN ACTION WITHIN NINETY (90) DAYS AFTER THE MARKET AND THE COSTS INCURRED OCCURRENCE OF SELLER’S DEFAULT. BUYER AGREES THAT ITS FAILURE TO TIMELY COMMENCE SUCH AN ACTION FOR SPECIFIC PERFORMANCE WITHIN SUCH NINETY (90) DAY PERIOD SHALL BE DEEMED A WAIVER BY SELLER AND THAT RETENTION IT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREITS RIGHT TO COMMENCE AN ACTION FOR SPECIFIC PERFORMANCE. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 14.1 8.2 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH APPLY TO ANY INDEMNITY, ATTORNEYS' FEE OR REIMBURSEMENT OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE BUYER’S COSTS PURSUANT TO SECTION 2.11 HEREOF PROVISIONS CONTAINED IN UNDER THIS AGREEMENT. INITIALS: / [Buyer's Initials of /s/ DW Seller's Initials /s/ GKH 8.3 Simultaneous Closings, Cross Terminations and Cross Defaults. On the Effective Date, i) Buyer and Seller]KBS Legacy Partners Dakota Hill LLC, a Delaware limited liability company, have entered into an Agreement for Purchase and Sale regarding the Legacy at Valley Ranch Apartments located in Irving, Texas (the “Valley Ranch Purchase Agreement”), ii) Buyer and KBS Legacy Partners Pikesville LLC, a Delaware limited liability company, have entered into an Agreement for Purchase and Sale regarding The Residence at Waterstone Apartments located in Pikesville, Maryland (the “Waterstone Purchase Agreement”), and iii) Buyer and KBS Legacy Partners Lofts LLC, a Delaware limited liability company, have entered into an Agreement for Purchase and Sale regarding the Lofts at the Highlands Apartments (the “Lofts Project”) located in St. Louis, Missouri (the “Lofts Purchase Agreement”, and collectively with the Valley Ranch Purchase Agreement and the Waterstone Purchase Agreement, the “Other Purchase Agreements”). Notwithstanding anything to the contrary contained herein, Seller and Buyer agree that, unless Seller elects to waive such condition, the Closing under this Agreement is conditioned upon the simultaneous or near simultaneous closing 34 of the transaction pursuant to the Valley Ranch Purchase Agreement. The parties stipulate and agree to the following, provided that Seller may, in its sole discretion, elect to waive the terms of this Section 8.3 and proceed to Closing notwithstanding a termination of any of the Other Purchase Agreements or a default by Buyer under any of the Other Purchase Agreements: i) A termination of any of the Other Purchase Agreements for any reason prior to the Closing shall constitute a termination of this Agreement. In the event the Buyer is entitled to a return of any portion of the xxxxxxx money deposit under the Other Purchase Agreements as a result of the termination, Buyer shall receive a return of the Xxxxxxx Money Deposit less the Independent Consideration; and ii) A default by Buyer under this Agreement shall constitute a default of the same type and manner by Buyer under any of the Other Purchase Agreements which have not closed as of the date of such default. A default by Buyer under any of the Other Purchase Agreements prior to the Closing hereunder shall constitute a default by Buyer of the same type and manner under this Agreement. REMAINDER OF PAGE IS INTENTIONALLY BLANK. 35
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT IN THE EVENT THE CLOSE OF ESCROW DOES NOT OCCUR SOLELY BY REASON OF ANY DEFAULT OF BUYER (ALL CONDITIONS TO ARTICLE XVIIBUYER'S OBLIGATIONS RESPECTING THE CLOSE OF ESCROW HAVING BEEN SATISFIED), WHICH DEFAULT IS NOT CURED WITHIN TWO (2 BUSINESS DAYS .AFTER THE RECEIPT OF WRITTEN NOTICE THEREOF FROM SELLER, THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER, THEREFORE THE PARTIES DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE ITS PURCHASE OF SELLER'S MEMBERSHIP INTEREST IN THE PROPERTY COMPS IS AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) AN AMOUNT EQUAL TO THE DEPOSIT (WHICH FOR THIS PURPOSE SHALL INCLUDE ANY REASON OTHER THAN (AACCRUED INTEREST THEREON) A DEFAULT AND THE CLOSING EXTENSION DEPOSIT, IF MADE BY SELLER AFTER BUYER. SAID AMOUNT SHALL BE THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND FULL, AGREED AND LIQUIDATED DAMAGES FOR THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION BREACH OF THIS AGREEMENT BY BUYER PURSUANT AND SELLER HEREBY WAIVES ALL OTHER CLAIMS TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN DAMAGES OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDEROTHER REMEDIES AGAINST BUYER, EXCEPT FOR THE INDEMNIFICATION BUYER'S INDEMNITY OBLIGATIONS EXPRESSLY SET FORTH IN OR ANY SECTION CLAIMS BY SELLER FOR ATTORNEYS' FEES UNDER SECTIONS 3.4 AND 9.2 OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE RIGHT MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369 BUT IS INTENDED TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS CONSTITUTE LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671,1676 AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE1677. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THE TERMS AND PROVISIONS OF THIS SECTION 14.1 1.7.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTLIMIT BUYER'S LIABILITY SECTIONS 3.4 AND 9.2. INITIALS: / [RFM KK SO ---------------- ----------------- Buyer's Initials Seller's Initials Notwithstanding anything to the contrary contained herein, the provisions of Buyer and Seller]this Section 1.7 shall survive the Close of Escrow or earlier termination of this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maguire Properties Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) AS PROVIDED IN THIS AGREEMENT AND SUCH FAILURE CONSTITUTES A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER BUYER (PROVIDED NO THAT BUYER HAS RECEIVED NOTICE OF DEFAULT AND THREE (3) BUSINESS DAYS OPPORTUNITY TO CURE), SELLER’S SOLE AND EXCLUSIVE REMEDY WHETHER AT LAW OR IN EQUITY (EXCEPT AS PROVIDED BELOW) SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND DEPOSIT AS LIQUIDATED DAMAGES AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED 1677. THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF FOREGOING SHALL NOT LIMIT SELLER’S REMOVAL REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THE PROPERTY FROM THE MARKET THIS AGREEMENT AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED ATTORNEYS’ FEES PROVISION SET FORTH IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]PARAGRAPH 18 BELOW.
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF THE INVESTIGATION PERIOD, IF THE CLOSING DOES NOT OCCUR AS A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE RESULT OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREINDEFAULT HEREUNDER, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL HAVE THE RIGHT BE TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT BY GIVING WRITTEN NOTICE THEREOF TO BUYER, WHEREUPON THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) DEPOSIT SHALL BE DELIVERED PAID TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH DEFAULT HEREUNDER BY BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION TO THE OTHER HEREUNDER, EXCEPT FOR PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT SELLER THEY SHALL ALSO HAVE SURVIVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATIONTERMINATION OF THIS AGREEMENT; PROVIDED, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES HOWEVER, THAT THIS PROVISION WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES PURSUANT TO SECTION 15.1 BELOW , NOR WAIVE OR AFFECT ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, NOR LIMIT BUYER’S LIABILITY TO SELLER FOR ANY BREACH BY BUYER OF THE ACCESS AGREEMENT. THE PARTIES ACKNOWLEDGE AND RETAIN AGREE THAT SELLER’S ACTUAL DAMAGES IN THE FULL EVENT OF BUYER’S DEFAULT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. THE PAYMENT OF THE DEPOSIT TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE DAMAGES UNDER THE CIRCUMSTANCES PROVIDED FOR HEREIN IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO FIX ACTUAL CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF A DEFAULT THE CALIFORNIA CIVIL CODE. BY BUYER AND THAT THEY HAVE AGREED PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE DEPOSIT IS A FAIR AND REASONABLE ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND OF LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AGREED UPON, AND THE COSTS INCURRED FACT THAT EACH PARTY WAS REPRESENTED BY SELLER AND THAT RETENTION COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]LIQUIDATED DAMAGES PROVISION.
Appears in 1 contract
Samples: Purchase and Sale Agreement (GK Investment Holdings, LLC)
Buyer’s Default. SUBJECT IN THE EVENT THE SALE OF THE CONDOMINIUM IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF BUYER, SELLER SHALL BE ENTITLED TO ARTICLE XVIIRECEIVE AND RETAIN THE DEPOSITS MADE BY BUYER UNDER THIS AGREEMENT TOGETHER WITH ANY INTEREST EARNED THEREON AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF 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 DEPOSITS MADE BY BUYER PURSUANT TO THE TERMS OF PARAGRAPH 1 ABOVE HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS PARAGRAPH 7), AT LAW OR IN EQUITY, IN THE EVENT THAT BUYER FAILS THIS TRANSACTION DOES NOT CLOSE DUE TO COMPLETE A DEFAULT UNDER THIS AGREEMENT ON THE PURCHASE PART OF BUYER. SUCH RECEIPT AND RETENTION OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT DEPOSITS BY SELLER AFTER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE EXPIRATION CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND SECTION 3275 OR SECTION 3369 OF THE TIME FOR CLOSING) (B) THE EXISTENCE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. IT IS UNDERSTOOD AND AGREED, HOWEVER, THAT THIS LIQUIDATION OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION DAMAGES APPLIES ONLY TO BUYER’S DEFAULT IN ITS OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) PURCHASE THE TERMINATION CONDOMINIUM AND SHALL NOT BE CONSTRUED TO RESTRICT IN ANY WAY THE REMEDIES AVAILABLE TO SELLER UPON BUYER’S BREACH OF ITS OBLIGATION TO INDEMNIFY AND HOLD SELLER HARMLESS PURSUANT THE TERMS OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLERBUYER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF OBLIGATIONS UNDER THIS AGREEMENT WHICH ARE TO BE PERFORMED AFTER THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTCLOSING DATE. INITIALS: / [Seller’s Initials of Buyer and Seller]Buyer’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT IF THE SALE IS NOT CONSUMMATED DUE TO ARTICLE XVIIANY DEFAULT BY BUYER HEREUNDER, THEN SELLER, AS ITS SOLE AND EXCLUSIVE LEGAL AND EQUITABLE REMEDY FOR BUYER’S DEFAULT, SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, THE PARTIES HAVING AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO CONSUMMATE THIS SALE DUE TO BUYER’S OBLIGATION DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREINDETERMINE. AFTER NEGOTIATION, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWPARTIES HAVE AGREED THAT, SELLER SHALL HAVE CONSIDERING ALL THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT CIRCUMSTANCES EXISTING ON THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION DATE OF THIS AGREEMENT, WHICH OBLIGATIONS THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING SHALL BE PERFORMABLE DEEMED TO BE SELLER’S UNCONDITIONAL AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER IRREVOCABLE ELECTION OF A REMEDY FOR A DEFAULT BY SELLER AS LIQUIDATED DAMAGESBUYER UNDER THIS AGREEMENT, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON)FILE AN ACTION FOR SPECIFIC PERFORMANCE, WHICH SUMS SHALL BE PAYABLE BY BUYER TO RIGHT SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]HEREBY WAIVES.
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWREASON OF ANY DEFAULT OF BUYER, SELLER SHALL HAVE THE RIGHT TO MAY TERMINATE THIS AGREEMENT AND IN SUCH EVENT RECEIVE OR RETAIN THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER DEPOSIT AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES AND SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR ITS OBLIGATION TO SELL THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE PROPERTY TO BUYER. BUYER AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND IMPRACTICABLE FAILS TO FIX ACTUAL COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO BUYER'S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET THIS AGREEMENT AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITUREATTORNEYS' FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. -------------------- -------------------- SELLER'S INITIALS BUYER'S INITIALS: / [Initials of Buyer and Seller]
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A BUYER'S DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF UNDER THIS AGREEMENT BY OR IF BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWSHALL DEFAULT IN ANY OTHER MATERIAL RESPECT, THEN SELLER SHALL HAVE HAVE, AS ITS EXCLUSIVE REMEDY, THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT TO RETAIN THAT PORTION OF THE DEPOSIT, IF ANY REQUIRED DEPOSIT THEN HELD BY THE TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND FOLLOWING SUCH TERMINATION NO PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO ANY OTHER PARTY HERETO EXCEPT WITH RESPECT TO THOSE PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER SHALL ALSO HAVE WILL INCUR EXPENSE IN CONNECTION WITH THE RIGHT TO COLLECT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL BY REMOVED FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATIONTHE MARKET; FURTHER, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH OF BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF A DEFAULT BUYER'S DEFAULT. IN NO EVENT SHALL BUYER BY BUYER AND THAT THEY HAVE AGREED LIABLE FOR LOST OR ANTICIPATED PROFITS OR ANY OTHER DAMAGES OTHER THAN THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER PROVIDED FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]SECTION.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chelsea Property Group Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVIIBY PLACING THEIR INITIALS AT THE END OF THIS SECTION 12.1, IN THE EVENT THAT BUYER AND SELLER AGREE THAT: (A) IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY PURSUANT TO THIS AGREEMENT BY REASON OF BUYER’S BREACH OF THIS AGREEMENT, THEN SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW AND EQUITY SHALL BE TO TERMINATE THIS AGREEMENT AND RETAIN THE DEPOSIT PURSUANT TO THIS AGREEMENT AS LIQUIDATED DAMAGES AND NOT AS A PENALTY (SELLER HEREBY WAIVING ALL OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) REMEDIES IT MAY HAVE AT LAW AND/OR EQUITY REGARDING SUCH BREACH); AND (B) BECAUSE OF THE EXISTENCE NATURE OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX SELLER’S ACTUAL DAMAGES IF SUCH A PENDING DEFAULT, (C) BREACH OCCURS AND THAT THEREFORE THE FAILURE AMOUNT OF LIQUIDATED DAMAGES SPECIFIED ABOVE SHALL BE PRESUMED TO BE THE AMOUNT OF DAMAGES SELLER WOULD SUSTAIN BY REASON OF SUCH A BREACH AND REPRESENTS A REASONABLE ESTIMATE OF THOSE DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671 THROUGH 1681. ______________ ______________ Buyer’s Initials Seller’s Initials NOTHING CONTAINED IN THIS SECTION 12.1 SHALL BE DEEMED TO LIMIT ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION OF THE INDEMNITIES OR AGREEMENTS OF BUYER WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) SURVIVE THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A WHICH ARE CONTAINED ELSEWHERE IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PROVIDED FOR IN SECTION 4.2.3 ABOVE AND SECTION 15.3 BELOW. THE PROVISIONS OF THIS SECTION 12.1 SHALL SURVIVE THE TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Seller’s Initials of Buyer and Seller]Buyer’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement (Resources Connection, Inc.)
Buyer’s Default. SUBJECT If this transaction shall not be closed because of default of Buyer, the Deposit shall be paid over to Seller as agreed and liquidated damages, it being acknowledged by Buyer and Seller that in such event Seller will suffer substantial damages but such damages are incapable of exact ascertainment. After payment to Seller of the Deposit, neither Seller nor Buyer shall have any further rights or obligations hereunder except that the parties shall remain obligated pursuant to the provisions hereof which survive termination. If subsequent to Closing Buyer shall fail to comply with its obligations contained herein which survive Closing, Seller, in addition to any rights and remedies provided herein, shall be entitled to any and all remedies available at law or in equity. SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE DIFFICULT TO ARTICLE XVIIDETERMINE, IN AND THAT THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE DEPOSIT IS A REASONABLE ESTIMATE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) SELLER’S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. SELLER AFTER AND BUYER FURTHER AGREE THAT THIS SECTION 10.1 IS INTENDED TO AND DOES LIQUIDATE THE EXPIRATION AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER’S EXCLUSIVE REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND BREACH BY BUYER OF ITS OBLIGATION TO CONSUMMATE THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULTTRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (C) THE FAILURE OF ANY CONDITION OTHER THAN WITH RESPECT TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT INDEMNITY AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLERCONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE RECOVER ITS REASONABLE ATTORNEYS’ FEES AND RETAIN EXPENSES. THE FULL PAYMENT OF SUCH AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO FIX ACTUAL CONSTITUTE LIQUIDATED DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE1677. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of _________________________ _________________________ Buyer and Seller]Seller 10.2
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (AS PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF IN THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWREASON OF ANY DEFAULT OF BUYER, SELLER SHALL HAVE BE RELEASED 45 FROM ITS OBLIGATION TO SELL THE RIGHT PROPERTY TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLERBUYER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY MAY PROCEED AGAINST BUYER UPON ANY CLAIM OR REMEDY WHICH IT MAY HAVE AT LAW OR IN EQUITY; PROVIDED, HOWEVER, THAT BUYER AND SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF HEREBY ACKNOWLEDGE AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX OR ESTABLISH THE ACTUAL DAMAGES TO DAMAGE SUSTAINED BY SELLER AS A RESULT OF A SUCH DEFAULT BY BUYER, AND AGREE THAT THE AGGREGATE AMOUNT OF THE DEPOSITS (INCLUDING ALL INTEREST), THE PAYMENT BY BUYER OF ALL ESCROW CANCELLATION ON CHARGES AND THAT THEY HAVE AGREED FEES, AND THE DEPOSIT DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS IS A FAIR REASONABLE APPROXIMATION THEREOF. ACCORDINGLY, IN THE EVENT THAT BUYER BREACHES THIS AGREEMENT BY DEFAULTING IN THE COMPLETION OF THE PURCHASE, THE AGGREGATE AMOUNT OF THE DEPOSITS (INCLUDING ALL INTEREST), THE PAYMENT BY BUYER OF ALL ESCROW CANCELLATION CHARGES AND REASONABLE AMOUNT FEES, AND THE DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS SHALL CONSTITUTE AND BE DEEMED TO BE RETAINED BY SELLER AS THE AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET , AND SHALL BE PAID BY BUYER TO SELLER AND THE COSTS INCURRED TITLE COMPANY AS SELLER'S SOLE REMEDY. SELLER AGREES TO WAIVE ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY SELLER AND THAT RETENTION REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER FOREGOING SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING LIMIT (I) BUYER'S OBLIGATIONS TO PAY TO SELLER ALL ATTORNEYS' FEES AND COSTS OF SELLER TO ENFORCE THE FOREGOING, PROVISIONS OF THIS SECTION 14.1 SHALL NOT PROHIBIT 5.1 AND/OR BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 4.4 AND 15 HEREOF, (II) BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 4.4 AND 15 HEREOF, OR (III) THE ABILITY AND RIGHT OF SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENTTO ENFORCE SUCH INDEMNITIES. SELLER'S INITIALS: / [Initials of Buyer and Seller]____ BUYER'S INITIALS____
Appears in 1 contract
Samples: Lease Agreement (Jabil Circuit Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN IF THE EVENT THAT BUYER CLOSING FAILS TO COMPLETE THE PURCHASE OCCUR BECAUSE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING BUYER’S DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT OF A DEFAULT BY BUYER DISPUTES SELLER’S RIGHT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO RECEIVE ASCERTAIN BECAUSE OF THE NATURE OF THE PROPERTY AND RETAIN THAT THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER REPRESENTS THE PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGESDAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 13.3, SELLER AND BUYER AGREE THAT IT WOULD THIS LIQUIDATED DAMAGES PROVISION IS INTENDED TO BE EXTREMELY DIFFICULT SELLER’S SOLE AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF EXCLUSIVE REMEDY FOR A DEFAULT BY BUYER BUYER, BUT IS NOT INTENDED AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT SHOULD NOT BE DEEMED OR CONSTRUED TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES LIMIT IN LIGHT OF SELLERANY WAY BUYER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. INITIALS: / [Initials of SELLER WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER RELEVANT STATUTORY LAW TO SEEK SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY OTHER THAN THE RECEIPT OF THE DEPOSIT. IN THE EVENT OF BUYER’S DEFAULT AND THE TERMINATION OF THIS TRANSACTION, THE LEASE SHALL NONETHELESS CONTINUE IN FULL FORCE AND EFFECT. Assignments. Buyer and any subsequent assignee may only assign this Agreement or its or their respective rights hereunder with Seller]’s prior written consent, unless the assignment is to an entity affiliated with or controlling, controlled by, or under common control with Buyer, in which case Seller’s consent shall not be required for any such assignment; provided that Buyer and any subsequent assignee may not be released from its or their obligations under this Agreement in connection with any such assignment. To the extent that Seller’s consent is required in connection with an assignment, Seller agrees that its consent will not be unreasonably withheld, conditioned, or delayed. Any assignee shall assume all of Buyer's or subsequent assignee’s obligations hereunder and succeed to all of Buyer's or any subsequent assignee’s rights and remedies hereunder, and any assignment and assumption must be in writing and delivered to Seller at least five (5) business days prior to the Closing Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. SUBJECT TO ARTICLE XVIIIn the event Buyer defaults in its obligations to close the purchase of the Property, IN then (i) Seller shall receive the Exxxxxx Money as fixed and liquidated damages, this Agreement shall terminate, and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement and (ii) Buyer shall immediately direct the Title Company to pay the Exxxxxx Money to Seller. Seller shall have no other remedy for any pre-Closing default by Buyer, including any right to damages. BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT: (1) THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE AMOUNT OF THE PROPERTY FOR ANY REASON OTHER THAN (A) EXXXXXX MONEY IS A DEFAULT REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AFTER AS A RESULT OF HAVING WITHDRAWN THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE PROPERTY FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) SALE AND THE FAILURE OF ANY CONDITION CLOSING TO BUYER’S OBLIGATION HAVE OCCURRED DUE TO CLOSE A DEFAULT OF BUYER UNDER THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR AGREEMENT; (D2) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT ACTUAL DAMAGES SUFFERED AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED COSTS INCURRED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT A RESULT OF SUCH WITHDRAWAL AND FAILURE TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED CLOSE DUE TO A DEFAULT OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF BUYER UNDER THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL DAMAGES DETERMINE; (3) BUYER SEEKS TO SELLER AS A RESULT LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE EXXXXXX MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT BY OF BUYER UNDER THIS AGREEMENT; AND THAT THEY HAVE AGREED (4) THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET EXXXXXX MONEY SHALL BE AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT DOES CONSTITUTE A PENALTY OR FORFEITUREVALID LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOINGAll of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials at law or in equity, in the event of a default by Buyer pursuant to Sections 6.2, 6.5, 8, 12.3, or 17.3, or pursuant to any covenant, agreement, indemnity, representation or warranty of Buyer and Seller]set forth in this Agreement that expressly survives the Closing or the termination of this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. SUBJECT (a) If Buyer shall be in breach or default of any of the terms or conditions of this Agreement, then Sellers shall give Buyer and Escrow Agent written notice specifying the nature of the default.
(b) Buyer shall have five (5) days from receipt of Sellers’ notice of default within which to cure the specified default to the reasonable discretion of Sellers. If Buyer does not cure such default within said five (5) day period or if such default is not waived in writing by Sellers, then the Escrow Agent shall pay the Xxxxxxx Money over to Sellers and this Agreement shall automatically terminate and Sellers and Buyer shall have no further rights, duties or obligations hereunder except as expressly survive the termination hereof.
(c) BUYER AND SELLERS AGREE THAT IF CLOSING DOES NOT OCCUR DUE TO ARTICLE XVII, IN THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND BUYER UNDER THIS AGREEMENT THAT IS NOT CURED WITHIN THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY PERIOD SET FORTH HEREININ SECTION 18.1(b) ABOVE, OR (D) THE TERMINATION OF THIS AGREEMENT BY DAMAGES TO SELLERS WOULD BE DIFFICULT AND IMPRACTICAL TO DETERMINE. ACCORDINGLY, BUYER PURSUANT AND SELLERS HAVE AGREED TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWFIX AS LIQUIDATED DAMAGES THE XXXXXXX MONEY SPECIFIED IN SECTION 4, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER XXXXXXX MONEY SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER SELLERS AS LIQUIDATED DAMAGES, AND EXCEPT SHALL CONSTITUTE SELLERS’ SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT. SELLERS AGREE THAT SELLER THESE LIQUIDATED DAMAGES SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (BE IN LIEU OF ANY OTHER MONETARY RELIEF OR OTHER REMEDY, INCLUDING WITHOUT LIMITATIONLIMITATION SPECIFIC PERFORMANCE, ATTORNEY FEES TO WHICH SELLERS OTHERWISE MIGHT BE ENTITLED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY. BUYER AND EXPENSES) INCURRED SELLERS SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO THE FOREGOING LIQUIDATED DAMAGES PROVISION BY SELLER INITIALING THIS PARAGRAPH IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]APPROPRIATE SPACES PROVIDED BELOW:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Summit Healthcare REIT, Inc)
Buyer’s Default. SUBJECT TO ARTICLE XVII, IN THE EVENT THAT BUYER BREACHES OR FAILS TO COMPLETE THE PERFORM ITS OBLIGATION TO PURCHASE OF THE PROPERTY UNDER THIS AGREEMENT FOR ANY REASON OTHER THAN (A) A SELLER'S DEFAULT BY SELLER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) OR THE FAILURE OF ANY CONDITION PRECEDENT TO BUYER’S 'S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREINUNDER SECTION 7.1, OR (D) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAWTHEN SELLER SHALL, SELLER SHALL AS ITS SOLE AND EXCLUSIVE REMEDY THEREFOR, HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND AGREEMENT, IN SUCH EVENT WHICH CASE IT SHALL BE ENTITLED TO RECEIVE THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH INCLUDING ALL ACCRUED INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO (AND NOT AS A PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. THEREAFTERUPON SUCH DEFAULT BY BUYER, BOTH THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND RELEASED FROM ANY FURTHER LIABILITY LIABILITIES HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS AS EXPRESSLY SET FORTH HEREIN. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER'S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION 11.1 REPRESENTS BOTH PARTIES' EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES. NOTHING HEREIN SHALL LIMIT SELLER'S REMEDIES WITH RESPECT TO ANY SECTION BREACH OF ANY COVENANT OF BUYER TO INDEMNIFY, DEFEND, PROTECT OR HOLD HARMLESS SELLER OR TO REIMBURSE SELLER FOR ANY SUMS OTHERWISE PAYABLE TO SELLER (INCLUDING ATTORNEYS' FEES AND COSTS), TO THE EXTENT SUCH COVENANT SURVIVES TERMINATION OF THE CLOSING UNDER THE EXPRESS TERMS OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE . BUYER AND OWING IN ADDITION SELLER SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO ANY SUMS RETAINED HEREUNDER THE FOREGOING LIQUIDATED DAMAGES PROVISION BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER INITIALING THIS PARAGRAPH IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX ACTUAL DAMAGES TO SELLER AS A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALSAPPROPRIATE SPACES PROVIDED BELOW: / [Initials of Buyer and Buyer's Initials: /s/ JSG Seller]'s Initials: /s/ NDG
Appears in 1 contract
Buyer’s Default. SUBJECT TO ARTICLE XVIIIn the event Buyer defaults in its obligations to close the purchase of the Property, IN or in the event Buyer otherwise defaults hereunder prior to Closing, then (i) Seller shall receive the Exxxxxx Money as fixed and liquidated damages, this Agreement shall terminate in accordance with all applicable laws, and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement and (ii) Buyer shall immediately direct the Title Company to pay the Exxxxxx Money to Seller. Seller shall have no other remedy for any pre-Closing default by Buyer, including any right to damages. BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT: (1) THE EVENT THAT BUYER FAILS TO COMPLETE THE PURCHASE AMOUNT OF THE PROPERTY FOR ANY REASON OTHER THAN (A) EXXXXXX MONEY IS A DEFAULT REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AFTER AS A RESULT OF HAVING WITHDRAWN THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE PROPERTY FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A PENDING DEFAULT, (C) SALE AND THE FAILURE OF ANY CONDITION CLOSING TO BUYER’S OBLIGATION HAVE OCCURRED DUE TO CLOSE A DEFAULT OF BUYER UNDER THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH HEREIN, OR AGREEMENT; (D2) THE TERMINATION OF THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT ACTUAL DAMAGES SUFFERED AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE DELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, IF ANY, RELEASED TO SELLER SHALL BE RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED COSTS INCURRED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT A RESULT OF SUCH WITHDRAWAL AND FAILURE TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED CLOSE DUE TO A DEFAULT OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF BUYER UNDER THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES. SELLER AND BUYER AGREE THAT IT AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE IMPRACTICAL TO FIX ACTUAL DAMAGES DETERMINE; (3) BUYER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE EXXXXXX MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE EXXXXXX MONEY SHALL BE AND DOES CONSTITUTE VALID LIQUIDATED DAMAGES. All of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, at law or in equity, in the event of a default by Buyer pursuant to Sections 6.2, 6.5, 8, 13.3, or 18.3, or pursuant to any covenant, agreement, indemnity, representation or warranty of Buyer that survives the Closing or the termination of this Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL AND TRANSFER THE PROPERTY OR REFUSES TO CONSENT TO OR INSTRUCT RELEASE OF THE EXXXXXX MONEY TO SELLER AS IF REQUIRED BY CLOSING AGENT (EACH A RESULT OF A DEFAULT BY BUYER AND THAT THEY HAVE AGREED THE DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER“BUYER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY ACTION”), SELLER SHALL NOT CONSTITUTE A PENALTY OR FORFEITURE. WITHOUT LIMITING BE RESTRICTED BY THE FOREGOING, PROVISIONS OF THIS SECTION 14.1 SHALL NOT PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM ANY IMPROPERLY FILED LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF ANY BUYER’S ACTION BUT ONLY TO THE EXTENT THAT SELLER IS THE PREVAILING PARTY; AND THE AMOUNT OF ANY SUCH FEES, COSTS AND EXPENSES AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT BUYER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF ANY OF BUYER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED BELOW. NOTWITHSTANDING THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: / [Initials of Buyer and Seller]FOREGOING, BUYER MAY FILE A LIS PENDENS TO THE EXTENT NECESSARY TO PRESERVE A CLAIM FOR SPECIFIC PERFORMANCE.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Investors Real Estate Trust)
