Common use of Default by Buyer; Liquidated Damages Clause in Contracts

Default by Buyer; Liquidated Damages. Prior to Closing, provided that Seller and Lease Guarantor are both ready, willing and able to Close and also that neither Seller nor Lease Guarantor is in material default of this Agreement, then, if any of Buyer’s representations and warranties in this Agreement prove to be untrue in any material respect, or if Buyer materially defaults in the performance of its obligations under this Agreement at any time after the expiration of the Due Diligence Period, and Buyer fails to cure such default or breach within five (5) business days after Seller or Lease Guarantor have provided written notice of such default to Buyer, the parties agree that Seller and Lease Guarantor may, as their sole and exclusive remedy, terminate this Agreement upon written notice delivered to Buyer and in which event the Escrow Agent shall immediately pay to the Seller the Xxxxxxx Money Deposit. The parties agree that (i) the amount of the Xxxxxxx Money Deposit is a reasonable sum considering all of the circumstances existing on the date of this Agreement, including the relationship of its amount to the range of harm to Seller and Lease Guarantor that reasonably could be anticipated, and the anticipation that proving actual damages would be costly, impracticable and extremely difficult, and (ii) retention of the Xxxxxxx Money Deposit by Seller and Lease Guarantor as liquidated damages is not intended as a forfeiture or penalty, but instead is intended to constitute liquidated damages to Seller and Lease Guarantor. Receipt by Seller and Lease Guarantor of the Xxxxxxx Money Deposit as liquidated damages as set forth above shall not prohibit Seller from enforcing its indemnification rights under Section 4 against Buyer.

Default by Buyer; Liquidated Damages. Prior to Closing, provided Provided that Seller and Lease Guarantor are both ready, willing and able to Close and also that neither Seller nor Lease Guarantor is in material default of this Agreement, then, if any of Buyer’s representations and warranties in this Agreement prove to be untrue at Closing in any material respect, or if Buyer materially defaults in the performance of its obligations under this Agreement at any time after the expiration of the Due Diligence Period, and Buyer fails to cure such default or breach within five ten (510) business days after Seller or and Lease Guarantor have provided written notice of such default to Buyer, the parties agree that, Seller and Lease Guarantor may elect one and only one of the following as their sole and exclusive remedy: (a) specific performance of this Agreement; or (b) payment of the Xxxxxxx Money Deposit. In the event that Seller and Lease Guarantor may, elect to be paid the Xxxxxxx Money Deposit as their sole and exclusive remedy, terminate this Agreement upon written notice delivered to Buyer and in which event the Escrow Agent shall immediately pay to the Seller the Xxxxxxx Money Deposit. The parties agree that (i) the amount of the Xxxxxxx Money Deposit is a reasonable sum considering all of the circumstances existing on the date of this Agreement, including the relationship of its amount to the range of harm to Seller and Lease Guarantor that reasonably could be anticipated, and the anticipation that proving actual damages damage would be costly, impracticable and extremely difficult, and (ii) retention of the Xxxxxxx Money Deposit by Seller and Lease Guarantor as liquidated damages is not intended as a forfeiture or penalty, but instead is intended to constitute liquidated damages to Seller and Lease Guarantor. Receipt by The election of Seller and Lease Guarantor to receive payment of the Xxxxxxx Money Deposit as liquidated damages as set forth above shall not prohibit Seller from enforcing its indemnification rights under Section 4 against Buyer.

Default by Buyer; Liquidated Damages. Prior IF THE CLOSE OF ESCROW DOES NOT TIMELY OCCUR BY REASON OF ANY DEFAULT OR FAILURE TO PERFORM BY BUYER AND ALL CONDITIONS TO BUYERS PERFORMANCE HAVING BEEN WAIVED OR SATISFIED AND SELLER IS NOT IN DEFAULT, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, BUYER AND SELLER AGREE THAT THE AMOUNT OF BUYER'S DEPOSIT REPRESENTS A FAIR AND REASONABLE ESTIMATE OF SELLER'S DAMAGES UNDER THE PROVISIONS OF SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND THAT SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT ON ACCOUNT OF BUYER'S DEFAULT IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES OF SELLER ARISING ON ACCOUNT OF SUCH DEFAULT. /s/ DMT ----------------- ---------------- SELLER's Initials BUYER's Initials Notwithstanding the preceding provision, BUYER agrees that SELLER's entitlement to Closing, provided that Seller and Lease Guarantor are both ready, willing and able to Close and also that neither Seller nor Lease Guarantor is in material default of this Agreement, then, if any of Buyer’s representations and warranties in this Agreement prove to be untrue in any material respect, or if Buyer materially defaults in retain the performance of its obligations under this Agreement at any time after the expiration of the Due Diligence Period, and Buyer fails to cure such default or breach within five (5) business days after Seller or Lease Guarantor have provided written notice of such default to Buyer, the parties agree that Seller and Lease Guarantor may, as their sole and exclusive remedy, terminate this Agreement upon written notice delivered to Buyer and in which event the Escrow Agent shall immediately pay to the Seller the Xxxxxxx Money Deposit. The parties agree that (i) the amount of the Xxxxxxx Money Deposit is a reasonable sum considering all of the circumstances existing on the date of this Agreement, including the relationship of its amount to the range of harm to Seller and Lease Guarantor that reasonably could be anticipated, and the anticipation that proving actual damages would be costly, impracticable and extremely difficult, and (ii) retention of the Xxxxxxx Money Deposit by Seller and Lease Guarantor as liquidated damages is not intended to compensate SELLER only for damage arising from the failure of BUYER to timely purchase the Property in accordance with this Agreement, and neither the existence of nor enforcement by SELLER of such remedy shall restrict or prejudice SELLER's rights or remedies to: (a) recover of attorneys' fees and legal expenses in the event that BUYER objects to or otherwise impedes the release of the Deposit by Escrow Agent to SELLER in the event of BUYER's default; (b) enforce any indemnification obligations of BUYER provided for in this Agreement or as a forfeiture or penalty, but instead is intended matter of law; (c) commence an action to constitute liquidated damages to Seller and Lease Guarantor. Receipt by Seller and Lease Guarantor enforce the restriction on BUYER's recordation of the Xxxxxxx Money Deposit as liquidated damages as set forth above shall not prohibit Seller from enforcing its indemnification rights under Section 4 against Buyera lis pendens in violation of subsection 9.2 below.