Default by Buyer. IN THE EVENT THE CLOSE OF ESCROW DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE BUYER AND SELLER 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 PURCHASE OF THE PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE DEPOSIT, TOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS SELLER’S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY), SAID AMOUNT -29- Xxxxxx Realty, L.P. - Purchase Agreement Santa Fe Summit SHALL BE DISBURSED TO SELLER AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSE OF ESCROW NOT OCCURRING, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN RESPECT OF BUYER’S BREACH OF THIS AGREEMENT BEING HEREIN EXPRESSLY WAIVED BY SELLER. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS. /s/ JH THR /s/ RNW SELLER’S INITIALS BUYER’S INITIALS 16.3 AS A MATERIAL CONSIDERATION FOR SELLER ENTERING INTO THIS AGREEMENT, BUYER EXPRESSLY WAIVES FOR ANY DEFAULT BY SELLER (A) ANY RIGHT UNDER CALIFORNIA CODE OF CIVIL PROCEDURE, PART 2, TITLE 4.5, SECTION 4.05 THROUGH 4.05.61 OR ANY OTHER SIMILAR STATE OR FEDERAL STATUTE, OR AT COMMON LAW OR OTHERWISE TO RECORD OR FILE A LIS PENDENS OR A NOTICE OF PENDENCY OF ACTION OR SIMILAR NOTICE AGAINST ALL OR ANY PORTION OF THE PROPERTY UNLESS AND UNTIL BUYER HAS ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS FILED AN ACTION SEEKING SUCH REMEDY, (B) ANY RIGHT TO SEEK DAMAGES IN THE EVENT OF SELLER’S PRE-CLOSING DEFAULT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, PURSUANT TO SECTION 16.4 BELOW, BUYER DOES NOT WAIVE ANY OF ITS RIGHTS TO SEEK DAMAGES FOR SELLER’S BREACH OF ANY OF ITS REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT, SO LONG AS BUYER FIRST OBTAINS ACTUAL KNOWLEDGE OF SUCH BREACH AFTER THE CLOSING, OR FOR ANY BREACH OF SELLER’S OBLIGATIONS OR COVENANTS SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE THE CLOSING, SO LONG AS BUYER FIRST OBTAINS ACTUAL KNOWLEDGE OF SUCH BREACH AFTER THE CLOSING, AND (C) UNLESS AND UNTIL BUYER HAS E...
Default by Buyer. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A FAILURE TO CONSUMMATE THE SALE DUE TO 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 XXXXXXX MONEY IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN THE EVENT OF BUYER’S DEFAULT. IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY, THE XXXXXXX MONEY MADE BY BUYER SHALL BE FORFEITED TO SELLER AS LIQUIDATED DAMAGES AND THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THIS SECTION 8.1 IS NOT INTENDED TO LIMIT SELLER’S RIGHTS UNDER SECTIONS 2.2, 2.3 AND 10.2 OF THIS AGREEMENT.
Default by Buyer. If Buyer fails to perform its obligations under this Agreement, Seller may forfeit this Agreement as provided in Iowa Code (Chapter 656), in which case this Agreement shall be deemed null and void and Seller's Attorney shall deliver the Down Payment to Seller, or, at Seller's option, upon thirty days' written notice of intention to accelerate the payment of the entire balance due because of Buyer's default (during which thirty days the default is not corrected), Seller may declare the entire balance immediately due and payable. Thereafter, this Agreement may be foreclosed in equity and the Court may appoint a receiver. Additionally, in the event Purchaser fails to make any payment of the purchase price promptly when the same shall become due as herein specified, or promptly to perform any covenant or agreement herein contained, Sellers may elect to specifically enforce this agreement or to terminate this agreement and retain as liquidated damages any payments theretofore made hereunder by Purchaser; provided that if such payments are inadequate to compensate Sellers for their damages, or no payments have been made, Sellers may exercise their right to sue for damages for Purchaser’s default. Sellers may elect to bring action, or actions, on any intermediate overdue installment or on any payments, or payments made by Sellers and repayable by Purchaser, it being stipulated that the covenant to pay intermediate installments, or to pay items repayable by Purchaser is independent of the covenant to make a deed, and that every such action is any action arising on contract for the recovery of money only, as if the promise to pay had been expressed in a different instrument, and that no such action shall constitute an election not to proceed otherwise as to any subsequent default. No waiver by Sellers of any default on the party of Purchaser shall be construed as a waiver of any subsequent default.
Default by Buyer. Should Buyer fail to close as provided in this Agreement, Buyer will be in default. Upon default by Buyer, Seller’s and Motley’s liability hereunder to Buyer shall absolutely cease, and Motley’s shall be entitled to retain the Buyer’s Deposit. If Buyer has not paid the Buyer’s Deposit in full or if Motley’s has incurred any expenses due to default by Buyer, and Buyer has made payment(s) to Seller, then, upon notice from Motley’s to the Seller, any payment(s) by Buyer to Seller (“Payments to Seller”) shall be remitted to Motley’s by the Seller and shall be subject to use as reimbursement to Motley’s for any expenses incurred by Motley’s due to default of Buyer. The Buyer’s Deposit and the Payment to Seller shall be apportioned to Motley’s and Seller in the following manner: Motley’s will retain the amount it would have received as the Buyer’s Premium at settlement plus compensation for any expenses it incurred due to default by Buyer, and Seller will retain the remainder. Additionally, Motley’s may resort to any other action or remedy in law or equity that may be available.
Default by Buyer. If, prior to Closing, Buyer fails to make any payment when it is due or fails to keep any of Buyer's other promises or agreements contained in this Agreement, then Seller will have the right, at Seller's sole option and in addition to any other rights contained herein, to do any one or more of the following:
(a) Seller may cancel this Agreement by giving Xxxxx written notice of cancellation and Seller may keep all sums paid by Buyer under this Agreement as "liquidated damages" (i.e., the amount agreed to by Xxxxx and Seller as properly payable in settlement for breach of contract), and not as a penalty. Without limiting the generality of the foregoing, Xxxxx understands and acknowledges that if Buyer defaults under this Agreement, Seller may keep the Option Deposit in addition to all other sums paid by Buyer under this Agreement. If Seller cancels this Agreement, Xxxxx agrees that it will be difficult and expensive to determine the amount of loss or damage Seller will suffer. This is because of, among other things, Xxxxxx's commitments relating to the financing of the Project, the effect of default and cancellation of one sale on other unit sales, and the nature of the real estate market in Hawaii. Xxxxx agrees that the sums paid by Xxxxx under this Agreement are a reasonable estimate of a fair payment to Seller for Seller's loss or damage resulting from Xxxxx's default.
(b) Seller may file a lawsuit for damages.
(c) Seller may file a lawsuit for "specific performance" (in other words, a lawsuit to make Buyer keep all of Buyer's promises and agreements, including, without limitation, closing the purchase of the Property).
(d) Seller may take advantage of any other rights which the law allows or which Seller may have under this Agreement. Xxxxx also agrees to pay for all costs, including Seller's reasonable lawyers' fees (for both in-house and outside counsel) and the escrow cancellation fee, which are incurred because of Buyer's default.
Default by Buyer. In the event Buyer should fail to consummate the transaction contemplated herein for any reason except for (i) any permissible reasons set forth herein or (ii) Seller's default, Seller may demand Escrow Agent to pay the Deposit, if actually paid to Escrow Agent, such sum being agreed upon as liquidated damages for the failure of Buyer to perform the duties, liabilities and obligations imposed upon it by the terms and provisions of this Agreement or Seller may sue for specific performance.
Default by Buyer. If Buyer shall fail to perform any of the conditions as provided herein, this Contract shall be terminated and cancelled if such failure is not cured within thirty (30) days after delivery of written notice from Seller to Buyer. In the event of default by Buyer and failure to cure said default within the period hereinabove provided, then Buyer’s interest in the Real Estate shall be extinguished, and all payments made by Buyer herein shall be retained by Seller as liquidated damages. In the alternative, Seller may pursue such other remedies available under law.
Default by Buyer. In the event of the failure or refusal of the Buyer to close this transaction, without fault on Seller's part and without failure of title, Seller, subject to Buyer’s right to cure as set forth in this paragraph, shall be entitled to retain all deposits posted by Buyer and any other sums paid by Buyer hereunder including, but not limited to, any improvements made to the Property under the terms hereof, as agreed and liquidated damages for said breach in addition to other liquidated damages provided for by this agreement. Upon the occurrence of any Buyer default that remains uncured for calendar days after Seller gives Buyer written notice thereof delivered as other notices under this Agreement, and upon receiving notice from Seller of Buyer’s uncured default, Escrow Agent shall disburse the deposit to Seller as liquidated damages, and upon such disbursement this Agreement shall terminate and be of no further force or effect except as otherwise expressly provided herein. In such event, Seller and Buyer agree that it would be impractical and extremely difficult to estimate the damages that Seller may suffer. Therefore, Seller and Buyer agree that the reasonable estimate of the total net detriment that Seller would suffer in the event of Buyer’s Default, and Seller’s sole remedy (whether at law or in equity), shall be the right to receive and retain the full amount of the deposit(s), and in such event Buyer hereby expressly authorizes Escrow Agent to deliver same to Seller. Payment to Seller of liquidated damages is not intended as a forfeiture or penalty within the meaning of applicable law and is intended to settle all issues and questions about the amount of damages suffered by Seller in the event of Buyer’s Default. (Check if applicable) □ In addition to said deposit(s), Buyer shall pay to Seller the sum of $ , all of which shall serve as agreed and liquidated damages for said breach.
Default by Buyer. If the sale of the Property as contemplated hereunder is not consummated due to Buyer's material default hereunder, then Seller shall be entitled, as its sole and exclusive remedy, to terminate this Agreement and retain the Deposit as liquidated damages as more particularly set forth in Section 1.6 above.
Default by Buyer. If Xxxxx fails to perform the agreements of this contract within the time set forth herein, Seller may retain, as liquidated damages and not as a penalty, all of the xxxxxxx money deposit specified in paragraph 2 above.
