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Common use of Default by Purchaser Clause in Contracts

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 3 contracts

Samples: Purchase and Sale Agreement (Inland Residential Properties Trust, Inc.), Purchase and Sale Agreement (Steadfast Income REIT, Inc.), Purchase and Sale Agreement (Steadfast Income REIT, Inc.)

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Default by Purchaser. If The parties agree that if Purchaser breaches or defaults in the sale performance of the Property as contemplated hereunder is not consummated due terms of this Agreement before the Closing and such material breach or default continues for ten (10) Business Days after written notice from Seller to Purchaser's Purchaser specifying such breach or default hereunder(except with respect to a TIME OF THE ESSENCE Closing Date, which may hereafter be established by Seller in accordance with applicable law, for which no notice or opportunity to cure shall be provided), then Seller shall have as its exclusive remedy the right to be entitledpaid the Deposit, as its sole and exclusive remedy for such defaultliquidated damages, without the necessity of proving actual damages due to terminate this Agreement and receive the Xxxxxxx Money as liquidated difficulty of proving actual damages for resulting from the breach of this Agreement and not as a penalty, it being agreed between the Agreement. The parties hereto agree that the actual damages to Seller in the event that damages are awarded they are to be measured solely as set forth herein and no other damages of such breach any type whatsoever are impractical to ascertain be awarded on account of Purchaser’s breach, and Purchaser shall have no further liability to Seller hereunder. The parties further agree that this liquidated damage clause is included herein as a result of negotiation by the amount parties at the express request of Purchaser and that Purchaser hereby waives any right to challenge the Xxxxxxx Money is a reasonable estimate thereofenforceability of this clause or its reasonability, Seller and Purchaser hereby expressly waiving and relinquishing waives any and all other remedies rights it may have at law or in equity. equity to dispute Seller's ’s right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole provided for herein other than on the basis that no material default had occurred and exclusive thus Seller was not entitled to any damages whatsoever. Seller shall have no other remedy for any default by Purchaser except as otherwise provided in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Agreement of Sale (Wells Real Estate Investment Trust Ii Inc)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money Deposit as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money Deposit is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Money Deposit is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money Deposit as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx MoneyDeposit. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money Deposit (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Paladin Realty Income Properties Inc), Purchase and Sale Agreement (Paladin Realty Income Properties Inc)

Default by Purchaser. If Purchaser defaults in the sale performance of the Property as contemplated hereunder is not consummated due to Purchaser's default hereunderits obligations, then Seller may: (i) terminate this Agreement, in which event Seller shall be entitled, as its sole and exclusive remedy for such default, entitled to terminate this Agreement and receive keep the Xxxxxxx Money and any other deposits obtained from Purchaser, including any interest thereon, as liquidated damages for the breach of this Agreement (and not as a penalty), it being agreed between the parties hereto agreeing that the Seller’s actual damages may be difficult to Seller in the event of such breach are impractical to ascertain ascertain, and that the amount of the Xxxxxxx Money is a reasonable estimate thereof, reasonably approximates the damages Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy would sustain in the event of a default hereunder by Purchaser, other than damage arising from any claims for mechanics’ liens resulting from work or materials ordered by Purchaser for the Unit (indemnification for which, if contemplated by this Agreement, shall be in addition to the retention of the Xxxxxxx Money and other deposits). In the event of such termination, Purchaser, upon demand, will execute and deliver such documents as Seller may reasonably request to evidence the termination or to remove any cloud on title to the Unit. If Seller elects to terminate this Agreement following a default by Purchaser, and if, at the time of Seller’s exercise of that remedy, there remains outstanding and unpaid any invoice for work and/or materials for the Unit ordered by Purchaser, then Seller hereby waives shall have the right, in addition to any other rights and releases any right remedies reserved or allowed for Seller under this Agreement or by law, to pay those invoices to ensure that no mechanic’s or materialman’s lien will be imposed against the Unit, and to charge Purchaser for all amounts so paid by Seller. Any amounts paid by Seller for such work or materials will bear interest at an annual rate of eighteen percent (18%) beginning the fifth (5th) day after Seller gives notice to Purchaser of the amount paid by Seller and hereby covenants that it shall notdue from Purchaser; or (ii) xxx Purchaser: (a) assert a claim against Purchaser for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofboth.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such defaultremedy, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach failure of this Agreement Purchaser to close the purchase of the Property as obligated hereunder and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive retain the Xxxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it they shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Carter Validus Mission Critical REIT II, Inc.), Purchase and Sale Agreement (Corporate Office Properties Trust)

Default by Purchaser. If In the sale of event the Property as contemplated hereunder Closing is not consummated due as a result of Purchaser’s default hereunder (a “Purchaser Default”), so long as Seller has complied in all respects (other than to Purchaser's default hereunder, then Seller shall be entitleda de minimis extent) with its obligations under this Agreement Seller, as its sole and exclusive remedy under this Agreement for such defaulta Purchaser Default, may by delivery of written notice to Purchaser and Title Company, terminate this Agreement, whereupon Purchaser shall pay to Seller the sum of Thirty Million Dollars ($30,000,000) (the “Liquidated Damages Payment”), less any “Liquidated Damages Payment” recovered by Miami Seller in accordance with the Miami Purchase Agreement or the Omnibus Agreement, as Seller’s sole and receive exclusive remedy, and the Xxxxxxx Money parties shall have no further obligations to each other except as specifically provided herein and the Omnibus Agreement. For the avoidance of doubt, Purchaser shall not be deemed in default hereunder if the Closing is not consummated due to the failure or one or more conditions precedent to Purchaser’s obligations to close set forth herein, and in such case a Purchaser Default shall not occur. Seller and Purchaser acknowledge and agree that (a) it would be extremely difficult to accurately determine the amount of damages suffered by Seller as a result of Purchaser’s default hereunder; (b) the Liquidated Damages Payment is a fair and reasonable amount to be retained by Seller as agreed and liquidated damages for the breach of a Purchaser Default under this Agreement and not as a penalty, it being agreed between in light of Seller’s removal of the parties hereto that Property from the actual damages to Seller in the event of such breach are impractical to ascertain market and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving costs incurred by Seller; and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall notc) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes of the Liquidated Damages Payment upon a Purchaser Default hereunder shall not constitute a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofor a forfeiture.

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Marriott International Inc /Md/)

Default by Purchaser. If In the sale event the Closing and the consummation of the Property transactions contemplated herein with respect to such Closing do not occur as contemplated hereunder is not consummated provided herein by reason of any default of Purchaser or any Qualified Assignees, Seller may elect by delivering written notice to Purchaser to terminate this Agreement in which case the Xxxxxxx Money Deposit and all interest earned thereon shall be released and paid by the Escrow Agent to Seller, and the Purchaser and Qualified Assignee shall have no further rights or obligations under this Agreement except for the Termination Surviving Obligations. Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages that Seller may suffer if Closing fails to occur due to the default of any one or more of the Purchaser or the Qualified Assignees. Accordingly, Purchaser and Seller hereby agree that (x) payment to Seller of the Xxxxxxx Money Deposit as provided above is a reasonable estimate of the total net detriment Seller would suffer if any one or more of Purchaser or the Qualified Assignees defaults with respect to Closing, and (y) such amount will be the full, agreed and liquidated damages for Purchaser's ’s or such Qualified Assignee’s default hereunderand failure to complete the purchase of the Properties, then Seller shall and will be entitled, as its Seller’s sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies (whether at law or in equity. Seller's right to receive ) for any default of Purchaser or a Qualified Assignee resulting in the Xxxxxxx Money is intended not as a penalty, but as full liquidated damagesfailure of consummation of Closing. The right to receive the Xxxxxxx Money payment of any such amounts as full liquidated damages is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Seller's sole and exclusive remedy . Notwithstanding the foregoing, nothing contained herein will limit Seller’s remedies at law, in equity or as herein provided in the event of default hereunder a breach by Purchaser, and Seller hereby waives and releases Purchaser or any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages Qualified Assignee of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofTermination Surviving Obligations.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (First Midwest Bancorp Inc)

Default by Purchaser. If In the event that the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such defaultremedy, to terminate this Agreement by written notice to Purchaser and Escrow Agent and to immediately receive the Xxxxxxx Money Deposit as liquidated damages (and not as a penalty) for the breach of this Agreement and not as a penaltyAgreement, it being agreed between the parties hereto that the that: (i) it would be impracticable and extremely difficult to fix or establish actual damages to of Seller in the event of such breach are impractical to ascertain a default hereunder by Purchaser and (ii) the amount of the Xxxxxxx Money Deposit is the parties’ best and most reasonable and fair estimate of Seller’s damages in the event of Purchaser’s default. Seller agrees that in the event of a reasonable estimate thereofdefault by Purchaser, Seller shall not initiate any proceeding to recover damages from Purchaser, but shall limit its recovery to the receipt and retention of the Deposit, Seller hereby expressly waiving and relinquishing WAIVING AND RELINQUISHING any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, equity and Seller hereby waives and releases WAIVES AND RELEASES any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx MoneyDeposit. Purchaser hereby waives and releases WAIVES AND RELEASES any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money Deposit (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Wells Core Office Income Reit Inc)

Default by Purchaser. If In the sale event of the Property as contemplated hereunder is not consummated due to a default by Purchaser of any of Purchaser's obligations under this Agreement and the failure of Purchaser to cure such default hereunderwithin fifteen (15) days after Seller notifies Purchaser in writing of such default (the “Purchaser Cure Period”), then Seller shall be entitled, as its sole and exclusive remedy for such default, to may terminate this Agreement and receive Purchaser shall pay to Seller as damages the Xxxxxxx Money Seller’s attorneys’ fees and costs incurred in (a) drafting and negotiating this Agreement, (b) drafting and negotiating any documents required for Closing, and (c) procuring a title commitment and removing any Removable Exceptions on the Premises. Said damages shall be paid to Seller as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy against Purchaser. Within thirty (30) days after termination of this Agreement by Seller pursuant to this Section, Seller shall provide to Purchaser a detailed invoice showing its attorneys’ fees and costs incurred, and Purchaser shall pay such amount to Seller within thirty (30) days of its receipt of such invoice. The Parties acknowledge that the actual damages that might be suffered by Seller because this Agreement is terminated due to a default by Purchaser are uncertain and difficult to prove. Accordingly, the Parties intend that the liquidated damage provision of this paragraph is fair and reasonable, intended by the Parties to be an agreement in advance as to the event settlement of any and all damages that might arise because of a default hereunder by Purchaser, and Seller hereby waives and releases any right bears a relation to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention might be sustained by Seller constitutes and is not a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofon Purchaser for non- performance.

Appears in 1 contract

Samples: Real Estate Sale and Purchase Agreement

Default by Purchaser. If In the sale event the Closing and the transactions contemplated hereby do not occur as provided herein by reason of the Property as contemplated hereunder default of Purchaser or a breach by Purchaser of any representations or warranties made by Purchaser under this Agreement, and provided that such default or breach is not consummated due cured by Purchaser within ten (10) days of receipt of notice of such default from Seller, (including without limitation, Purchaser’s failure to Purchaser's comply with the requirements of Section 9.1 hereof), Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages which Seller may suffer. Therefore, Purchaser and Seller hereby agree a reasonable estimate of the total net detriment Seller would suffer in the event Purchaser defaults and fails to complete the purchase of the Membership Interests is and shall be, as Seller’s sole and exclusive remedy (whether at law or in equity), a sum equal to the Deposit and Interest accrued thereon. Upon such default or breach by Purchaser and failure to close as required hereunder, then Seller shall be entitledhave the right to receive the Deposit and Interest accrued thereon from the Escrow Agent, in accordance with the terms and provisions of Section 3.2 hereof, as its sole and exclusive remedy for such default, to terminate and thereupon this Agreement shall be terminated and receive neither Seller nor Purchaser shall have any further rights or obligations hereunder except with respect to the Xxxxxxx Money as Surviving Termination Obligations. The amount of the Deposit and Interest accrued thereon shall be the full, agreed and liquidated damages for Purchaser’s default and failure to complete the breach purchase of the Membership Interests, all other claims to damages or other remedies being hereby expressly waived by Seller. Notwithstanding anything in this Agreement to the contrary (i) from and not as a penaltyafter the Closing, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other nothing contained herein shall limit Seller’s remedies at law or in equity. Seller's equity as to the Surviving Termination Obligations and (ii) Purchaser shall have the right to receive cure any such default or breach by paying the Xxxxxxx Money is intended not as Purchase Price at Closing, except in connection with a penaltydefault or breach relating to Sections 7.1, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole 7.2, 7.6 or 7.7, 13.1, 14.1 and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof16.8.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Boston Properties LTD Partnership)

Default by Purchaser. If In the sale event that Purchaser fails to consummate this Agreement for any reason other than Seller’s default or the permitted termination of the Property this Agreement by either Seller or Purchaser as contemplated hereunder is not consummated due to Purchaser's default hereunderherein expressly provided, then or if Purchaser otherwise defaults under this Agreement, Seller shall be entitled, as its sole and exclusive remedy for such defaultremedy, to terminate this Agreement and receive the Xxxxxxx Money, or such portion of the Escrow Money in the possession of the Escrow Agent at the time of Purchaser’s default, as liquidated damages for the breach of this Agreement and not as a penaltyAgreement, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full foregoing liquidated damages is Seller's sole and exclusive remedy in the event provision of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it this Section shall not) xxx Purchaser: (a) for specific performance apply to Purchaser’s obligations under Section 10.1, nor shall Purchaser be entitled to credit or offset the Xxxxxxx Money or any portion thereof against any damages suffered by Seller by reason of Purchaser’s default with respect thereto; and (b) be deemed to limit Purchaser’s liability under any indemnity or breach of any covenant under this Agreement that is expressly stated to survive the Closing or early termination of this Agreement. The foregoing also shall not apply to any of Purchaser’s survival obligations specified in Section 10.23. In addition, or (b) to recover any damages of any nature or description other than or if the First Deposit is not timely posted in excess of the Xxxxxxx Moneyaccordance with Section 1.6, then this Agreement shall be null and void ab initio. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damagesEACH 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 6.1 is subject to Section 6.4 hereofTHE FOREGOING IS NOT INTENDED TO LIMIT PURCHASER’S INDEMNITY OBLIGATIONS UNDER OTHER SECTIONS HEREOF.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Wells Real Estate Fund Iii L P)

Default by Purchaser. If In the sale event that Closing does not occur by reason of default by Purchaser with respect to any material obligations of Purchaser hereunder, or because any of the Property as contemplated hereunder is Purchaser Representations are or become materially false and are not consummated due to waived by Seller or promptly cured by Purchaser's default hereunder, then upon demand by Seller to Escrow Agent and Purchaser, Escrow Agent shall be entitled, promptly pay the Xxxxxxx Money to Seller as its Seller’s sole and exclusive remedy for such defaultrelated thereto, and Seller shall be entitled to terminate retain the Xxxxxxx Money as full liquidated damages in accordance with O.C.G.A. Section 13-6-7, and thereafter no party shall have any further rights, claims or liabilities hereunder, except those obligations which by their express terms survive the termination of this Agreement Agreement; Seller’s receipt and receive retention of the Xxxxxxx Money as liquidated damages for being the breach full and exclusive remedy of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereofhereunder, Seller hereby expressly specifically waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy including, without limitation, an action in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) equity for specific performance of this Agreement, Agreement or (b) an action at law to recover any monetary damages of any nature or description other than or in excess of the Xxxxxxx Money. Seller shall not xxx Purchaser hereby waives and releases any right to (and hereby covenants on the grounds that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's the actual or other damages of Purchaser or that its the receipt and retention by Seller of the Xxxxxxx Money only constitutes a penalty penalty. The parties acknowledge that the actual damages of Seller in the event of inability, failure or refusal of Purchaser to consummate Closing shall be difficult or impossible to ascertain, and that the Xxxxxxx Money represents the reasonable pre-estimate of the parties of the probable loss of Seller, and are not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofa penalty.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)

Default by Purchaser. If In the sale event the Closing and the consummation of the Property transactions contemplated herein do not occur as contemplated hereunder provided herein by reason of any default of Purchaser, Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages which Seller may suffer. In such event, Escrow Agent shall pay the Xxxxxxx Money Deposit to each of Harsimus (or its designee) and Columbia (or its designee) by separate Federal Reserve wire transfers of immediately available funds to the account designated by each of them, the portion of the Xxxxxxx Money Deposit to which each of them is not consummated due to Purchaser's default hereunder, then Seller shall be entitled, as its set forth in a writing executed by Harsimus and Columbia and which shall be furnished to Escrow Agent, and Purchaser and Seller hereby agree that (a) an amount equal to the Xxxxxxx Money Deposit is a reasonable estimate of the total net detriment Seller would suffer in the event Purchaser defaults and fails to complete the purchase of the Property, and (b) such amount will be the full, agreed and liquidated damages for Purchaser’s default and failure to complete the purchase of Seller’s LLC Interest, and will be Seller’s sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies (whether at law or in equity. Seller's right ) for any default of Purchaser resulting in the failure of consummation of the Closing, whereupon this Agreement will terminate and Seller and Purchaser will have no further rights or obligations hereunder, except with respect to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damagesTermination Surviving Obligations. The right to receive the Xxxxxxx Money payment of such amount as full liquidated damages is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Seller's sole and exclusive remedy . Notwithstanding the foregoing, as to the Termination Surviving Obligations, nothing contained herein will limit Seller’s remedies at law, in equity or as herein provided in the event of default hereunder a breach by PurchaserPurchaser of any of the Termination Surviving Obligations. Seller specifically waives its rights to seek any punitive, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreementspeculative, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated consequential damages. This Section 6.1 is subject to Section 6.4 hereof.ARTICLE XIV.......

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damagesdamages pursuant to Official Code of Georgia Annotated §13-6-7. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages, as permitted under Official Code of Georgia Annotated §13-6-7. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Post Apartment Homes Lp)

Default by Purchaser. If the sale of the Property Membership Interest as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money Deposit as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money Deposit is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Money Deposit is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money Deposit as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx MoneyDeposit. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money Deposit (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Membership Interest Purchase and Sale Agreement (Paladin Realty Income Properties Inc)

Default by Purchaser. If Purchaser fails to perform any of its material obligations under this Agreement or the sale Access Agreement, and if Seller is not then in monetary default under this Agreement, Seller shall notify Purchaser in writing of the Property as contemplated hereunder is not consummated due nature of and occurrence of the event of default and Purchaser shall have seven (7) days to Purchaser's default hereundercure such event of default. If Purchaser fails or refuses to timely cure such event of default, then Seller shall have the right to terminate this Agreement and all Xxxxxxx Money deposited in Escrow by Purchaser shall be entitled, disbursed to Seller as its sole and exclusive remedy for such defaultremedy, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between penalty and the parties hereto shall have no further rights or obligations under this Agreement. Purchaser and Seller agree that the actual damages damage which Seller would reasonably be expected to Seller in the event of such breach are impractical to ascertain and sustain is the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (Seller acknowledge and hereby covenants agree that it shall not) xxx would be impracticable to ascertain the actual damages that would be suffered by Seller or seek or claim in such event. Purchaser and Seller have considered carefully the loss to Seller as a refund consequence of the negotiation and execution of this Agreement, the personal expense of Seller incurred in connection with the preparation of this Agreement and Seller’s performance hereunder, and the other damages, general and special, that Purchaser and Seller realize and recognize Seller will sustain but that Seller cannot at this time calculate with absolute certainty. Based on all of these considerations, Purchaser and Seller have agreed that the damage to Seller would reasonably be expected to amount to the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount as full, complete and exceeds Seller's actual final liquidated damages or that its retention sustained by Seller constitutes a penalty and not agreed upon such liquidated damages shall be Seller’s sole and reasonable liquidated damagesexclusive remedy and the parties shall have no further rights or obligations under this Agreement. This Section 6.1 is subject If the Closing occurs, nothing contained in this Agreement shall limit or otherwise affect any of Seller’s rights or remedies against Purchaser arising under any express indemnification of Seller by Purchaser set forth in this Agreement or arising from any breach or default by Purchaser after the Closing of any obligations in this Agreement which are expressly provided to Section 6.4 hereofsurvive Closing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (AG Mortgage Investment Trust, Inc.)

Default by Purchaser. If the sale of Purchaser shall default in its obligation to purchase the Property as contemplated hereunder is not consummated due pursuant to this Agreement and all conditions precedent and contingencies to Purchaser's obligations are satisfied or any representation or warranty of Purchaser is not true, or in the event Purchaser fails to perform any obligation of Purchaser under this Agreement, and such default hereundershall remain uncured for a period of five (5) business days following receipt of written notice thereof from Seller to Purchaser, then Purchaser agrees that Seller shall be entitledshall, as its sole and exclusive remedy for such defaultremedy, have the right to terminate this Agreement (in which case Purchaser shall have no further rights or interests in the Property) and receive to have the Xxxxxxx Escrow Agent deliver the Exxxxxx Money to Seller as liquidated damages to recompense Seller for time spent, labor and services performed, and the breach loss of its bargain, and except for Purchaser’s obligation to indemnify Seller pursuant to Section 2.3 of this Agreement and not as a penaltyAgreement, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it Seller shall not) xxx not sxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx Exxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants Seller agree that it shall not) xxx Seller would be impracticable or seek or claim extremely difficult to affix damages if Purchaser so defaults and that the Exxxxxx Money, together with the interest thereon, represents a refund reasonable estimate of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated ’s damages. This Section 6.1 is subject In no event shall Purchaser be liable to Section 6.4 hereofSeller for any direct or indirect punitive, speculative or consequential damages.

Appears in 1 contract

Samples: Purchase and Sale Agreement (MVP REIT, Inc.)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's default hereunderPurchaser defaults under this Agreement, then Seller shall be entitled, as its sole and exclusive remedy for such default(without limiting Seller’s rights with respect to any indemnification obligations of Purchaser under this Agreement or under Section 10.17 below), to terminate this Agreement and and, to the extent the Xxxxxxx Money has theretofore been funded by Purchaser to Escrow Agent pursuant to Section 1.6, receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penaltyAgreement, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof. THEREFORE THE PARTIES ACKNOWLEDGE THAT THE XXXXXXX MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF PURCHASER. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. Nothing contained in this Section 6.1 shall limit or prevent Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: after Closing has occurred from (a) asserting any legal or equitable claims against Purchaser for specific performance of this AgreementPurchaser’s obligation to pay attorneys’ fees and other amounts under Section 10.17, or (b) enforcing any indemnity obligation of Purchaser under this Agreement or preclude Seller from obtaining a damage award in connection therewith, or (c) enforcing Purchaser’s other obligations and liabilities which survive Closing. Notwithstanding the foregoing, if the conditions set forth in the last sentence of Section 6.2 are not satisfied and Purchaser interferes with or makes any attempt to interfere with Seller selling the Property to another party, including, without being limited to, the recording of a lis pendens or other lien against the Property, or the seeking of an injunction or similar relief, Seller shall have the right to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's its actual damages or that its retention caused by Seller constitutes a penalty and not agreed upon and reasonable such action of Purchaser in addition to the liquidated damages. This Section 6.1 is subject damages referred to Section 6.4 hereofabove due to the default of Purchaser in purchasing the Property.

Appears in 1 contract

Samples: Purchase and Sale Agreement (LaSalle Hotel Properties)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Exxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Exxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Exxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Exxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by PurchaserPxxxxxxxx, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx sue Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Exxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx sue Seller or seek or claim a refund of the Xxxxxxx Exxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof6.4.

Appears in 1 contract

Samples: Purchase and Sale Agreement (TerraCycle US Inc.)

Default by Purchaser. If Purchaser commits a material default under this Agreement (including, without limitation, a failure to purchase the sale Property, a failure to make the closing deliveries required by Section 4.3 above or the breach of the Property as contemplated hereunder is not consummated due to Purchaser's default hereundera representation or warranty under this Agreement), then Seller shall be entitled, as its sole and exclusive remedy for such default(without limiting Seller's rights under Section 10.16 below), to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penaltyAgreement, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT AND ANY INTEREST THEREON HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF PURCHASER. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. Initials: Seller hereby expressly waiving and relinquishing any and all other remedies at law Purchaser Nothing contained in this Section 6.1 shall limit or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and prevent Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: from (a) terminating this Agreement and asserting any claims for specific performance damages for defaults by Purchaser under this Agreement that are not "material" as set forth above, (b) asserting any claims against Purchaser for attorneys' fees and other amounts under Section 10.16 below, (c) enforcing any indemnity obligation of Purchaser under this Agreement or preclude Seller from obtaining a damage award in connection therewith, or (d) enforcing Purchaser's other obligations and liabilities which survive a termination of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Maui Land & Pineapple Co Inc)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's default hereunderPurchaser defaults under this Agreement, then Seller shall be entitled, as its sole and exclusive remedy for such default(without limiting Seller’s rights with respect to any indemnification obligations of Purchaser under this Agreement or under Section 10.19 below), to terminate this Agreement and receive the Xxxxxxx Exxxxxx Money as liquidated damages for the breach of this Agreement and not as a penaltyAgreement, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Exxxxxx Money is a reasonable estimate thereof. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE EXXXXXX MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF PURCHASER. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. Initials: Seller hereby expressly waiving and relinquishing any and all other remedies at law Purchaser Nothing contained in this Section 6.1 shall limit or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and prevent Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: from (a) asserting any legal or equitable claims against Purchaser for specific performance of this AgreementPurchaser’s obligation to pay attorneys’ fees and other amounts under Section 10.19, or (b) to recover enforcing any damages indemnity obligation of any nature Purchaser under this Agreement or description preclude Seller from obtaining a damage award in connection therewith, or (c) enforcing Purchaser’s other than obligations and liabilities which survive Closing or in excess a termination of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofthis Agreement.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Ashford Hospitality Trust Inc)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of OF this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Post Apartment Homes Lp)

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Default by Purchaser. If In the sale event the Closing and the transactions contemplated hereby do not occur as provided herein by reason of the default of Purchaser, and provided that such default is not cured by Purchaser within ten (10) days of receipt of notice of such default from Seller, (including without limitation, Purchaser’s failure to comply with the requirements of Section 9.1 hereof), Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages which Seller may suffer. Therefore, Purchaser and Seller hereby agree a reasonable estimate of the total net detriment Seller would suffer in the event Purchaser defaults and fails to complete the purchase of the Property is and shall be, as contemplated hereunder is not consummated due Seller’s sole and exclusive remedy (whether at law or in equity), a sum equal to Purchaser's the Deposit and Interest accrued thereon. Upon such default by Purchaser and failure to close as required hereunder, then Seller shall be entitledhave the right to receive the Deposit and Interest accrued thereon from the Escrow Agent, in accordance with the terms and provisions of Section 3.2 hereof, as its sole and exclusive remedy for such default, to terminate and thereupon this Agreement shall be terminated and receive neither Seller nor Purchaser shall have any further rights or obligations hereunder except with respect to the Xxxxxxx Money as Surviving Termination Obligations. The amount of the Deposit and Interest accrued thereon shall be the full, agreed and liquidated damages for Purchaser’s default and failure to complete the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount purchase of the Xxxxxxx Money is a reasonable estimate thereofProperty, Seller all other claims to damages or other remedies being hereby expressly waiving waived by Seller. Notwithstanding the foregoing, from and relinquishing any and all other after the Closing, nothing contained herein shall limit Seller’s remedies at law or in equity. Seller's right equity as to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofSurviving Termination Obligations.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Boston Properties Inc)

Default by Purchaser. If Purchaser defaults under this Agreement and such default shall continue for three (3) Business Days after Purchaser has received written notice thereof from Seller or RT Deerfield I defaults (after the sale of applicable notice and cure period) under the Property as contemplated hereunder is not consummated due to Purchaser's default hereunderDeerfield Commons I Agreement, then Seller shall be entitledEscrow Agent shall, on demand (after giving Purchaser such written notice as is required under Exhibit B), pay the Xxxxxxx Money to Seller, as its Seller’s sole and exclusive remedy for such under this Agreement. Seller and Purchaser acknowledge and agree it is impossible to estimate more precisely the damages that might be suffered by Seller upon Purchaser’s default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive ’s retention of the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive and retain the Xxxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of a default or failure or refusal to perform hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: ; (a) for specific performance of this Agreement, or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the said Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Notwithstanding the foregoing, nothing contained in this Section 6.1 is subject 14.2 will limit (i) Seller’s remedies at law, in equity or herein provided in the event of a breach by Purchaser of any of its obligations that survive Closing or the earlier termination of this Agreement, or (ii) the obligations of RT Deerfield I to Section 6.4 hereof.Seller’s Affiliate under the Deerfield Commons I Agreement. Purchaser Initials Seller Initials

Appears in 1 contract

Samples: Purchase and Sale Agreement (Cb Richard Ellis Realty Trust)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's default Purchaser defaults hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such defaultremedy, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive ’s retention of the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive retain the Xxxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Parlux Fragrances Inc)

Default by Purchaser. If on the sale of Closing Date, Purchaser shall default in its obligation to purchase the Property as contemplated hereunder pursuant to this Agreement and all conditions precedent and contingencies to Purchaser’s obligations are satisfied or any representation or warranty of Purchaser is not consummated due materially true and such default shall remain uncured for a period of fifteen (15) days following receipt of written notice thereof from Seller to Purchaser's default hereunder, then Purchaser agrees that Seller shall be entitledshall, as its sole and exclusive remedy for such defaultremedy, have the right to terminate this Agreement (in which case Purchaser shall have no further rights or interests in the Property) and receive to have the Escrow Agent deliver the Xxxxxxx Money as liquidated damages for to Seller (subject to the breach provisions of this Agreement and not to the extent Seller is entitled to receive same) as a penalty, it being agreed between the parties hereto that the actual liquidated damages to recompense Seller in the event of such breach are impractical to ascertain for time spent, labor and services performed, and the amount loss of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaserits bargain, and except for Purchaser’s obligation to indemnify Seller pursuant to Section 2.4 of this Agreement, Seller hereby waives and releases any right to (and hereby covenants that it Seller shall not) xxx not sue Purchaser: (a) for specific performance of this Agreement, ; or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants Seller agree that it shall not) xxx Seller would be impracticable or seek or claim a refund of extremely difficult to affix damages if Purchaser so defaults and that the Xxxxxxx Money (or any part thereof) on Money, together with the grounds it is unreasonable in amount and exceeds interest thereon, represents a reasonable estimate of Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated ’s damages. This Section 6.1 is subject In no event shall Purchaser be liable to Section 6.4 hereofSeller for any direct or indirect punitive, speculative or consequential damages.

Appears in 1 contract

Samples: Purchase and Sale Agreement

Default by Purchaser. If the sale of the Property Membership Interest as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller Sellers shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money Deposit as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller Sellers in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money Deposit is a reasonable estimate thereof, Seller Sellers hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's Sellers’ right to receive the Xxxxxxx Money Deposit is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money Deposit as full liquidated damages is Seller's Sellers’ sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller Sellers hereby waives waive and releases release any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx MoneyDeposit. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller Xxxxxxx or seek or claim a refund of the Xxxxxxx Money Deposit (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's Sellers’ actual damages or that its retention by Seller Sellers constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 5.1 is subject to Section 6.4 5.4 hereof.

Appears in 1 contract

Samples: Membership Interest Purchase and Sale Agreement (Paladin Realty Income Properties Inc)

Default by Purchaser. If Purchaser shall be in default under this Agreement if Purchaser shall fail in making any payment when required hereunder, or fail to perform or observe any other obligation or provision required of Purchaser hereunder, and Seller shall notify Purchaser by certified or registered mail of such default and if such default shall not be cured within twenty (20) days after the sale of date Purchaser receives such notice in the Property as contemplated hereunder is not consummated due United States mails, this Agreement may, at Seller's option, be terminated by written notice to Purchaser's default hereunder. In the event of such termination, then Seller shall be entitledand Purchaser hereby acknowledge that they understand and have agreed that, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of a default, the injury to Seller will be difficult and expensive to measure in view of: Seller's financial commitments with respect to the Subdivision; the connection between sale, termination or default with respect to one lot and sale, termination or default with respect to other lots in the Subdivision; and the nature of the real estate market in Hawaii. As a reasonable estimate of Xxxxxx's fair compensation for any damages resulting from such breach are impractical default, the parties agree that the sums paid by Purchaser hereunder, plus any interest accrued thereon, shall belong to ascertain and Seller as liquidated damages. It is understood that the damages suffered by Seller by virtue of a default later in time will likely be greater than such a default occurring at an earlier point in time. Seller may, in addition to or in lieu of retention of the sums paid by Xxxxxxxxx, pursue any other remedy, including specific performance, permitted by law or equity. All costs, including reasonable attorneys' fees, incurred by reason of default by Purchaser shall be borne by Purchaser. Notwithstanding anything contained herein to the contrary, if Purchaser has paid at least fifteen percent (15%) of the Purchase Price, the amount paid to Seller as a result of Purchaser's default of this Agreement shall not exceed fifteen percent (15%) of the Purchase Price, excluding any interest owed under this Agreement, or the amount of the Xxxxxxx Money is a reasonable estimate thereof, damages incurred by Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penaltyresult of such default, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages whichever is Seller's sole and exclusive remedy in the event of default hereunder by Purchasergreater, and Seller hereby waives and releases shall refund, or instruct the Escrow Agent to refund, to Purchaser all payments by Purchaser hereunder in excess of 15% of the Purchase Price, exclusive of interest, or the amount of damages suffered by Seller as a result of Purchaser's default, whichever is greater. The failure of Seller to insist on any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific one or more instances upon strict performance of any of the terms of this Agreement, or (b) exercise any rights herein conferred, shall not be deemed a waiver or relinquishment to recover any damages extent of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages rights to later assert, enforce or that its retention by Seller constitutes a penalty and not agreed rely upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofany such terms or rights in such instance and/or in any other instance.

Appears in 1 contract

Samples: Purchase Agreement

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive from Purchaser the Xxxxxxx Money sum of Fifty Thousand and No/100 Dollars ($50,000.00)(the “Liquidated Damages Amount”) as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money Liquidated Damages Amount is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Money Liquidated Damages Amount is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money Liquidated Damages Amount as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx MoneyLiquidated Damages Amount. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of that the Xxxxxxx Money Liquidated Damages Amount (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention payment by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Paladin Realty Income Properties Inc)

Default by Purchaser. If Should the sale Purchaser fail to comply with any of the Property as contemplated hereunder is not consummated due to Purchaser's terms and conditions hereof and remain in default hereunderfor a period of 7 (Seven) days after dispatch of a written registered notice requiring such default be remedied, then the Seller shall be entitled, entitled to: 16.1 Claim specific performance with regard to the payment of the whole balance of the purchase price then unpaid together with all interest and other moneys which may then be outstanding or sue for the cancellation of this agreement and for any amount in damages that may have been suffered by the Seller as its a result of such non-payment or breach; or 16.2 Cancel this agreement forthwith without recourse to any Court of Law and thereupon all moneys paid by the Purchaser under this agreement shall belong to the Seller as the Seller’s sole property and exclusive remedy for such default, to terminate this Agreement and receive shall be retained by the Xxxxxxx Money Seller as rouwkoop and/or by way of liquidated damages for breach of contract, it being hereby agreed that the money so retained shall be a reasonable, fair and just assessment of the damages sustained by the Seller. 16.3 Should it be deemed necessary for the Seller to take any legal steps against the Purchaser with regard to the Purchaser’s breach of contract, the Purchaser will be liable for payment of any and all legal fees of the Seller on an attorney-client scale. 16.4 The remission of any instalment, or grant of any concession, or condonation of any breach of any of the conditions hereof, or other act of relaxation, indulgence or grace on the part of the Seller shall not in any way operate as or be deemed to be a waiver by the Seller of any rights under this agreement or be construed as a novation thereof. 16.5 In the event that this agreement is cancelled due to the breach of this Agreement and not as a penaltycontract by the Seller, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the total amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right deposit paid by the Purchaser will be refunded to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereoftogether with interest thereon.

Appears in 1 contract

Samples: Offer to Purchase

Default by Purchaser. 10.1.1 If the sale of Purchaser shall default in its obligation to purchase the Property as contemplated hereunder is not consummated due pursuant to Purchaser's default hereunderthis Contract, then Purchaser agrees that Seller shall be entitled, as its sole and exclusive remedy for such default, have the right to terminate this Agreement Contract by written notice to Purchaser and receive to have the Escrow Agent immediately deliver all Xxxxxxx Money then held by it, if any, to Seller, as liquidated damages to recompense Seller for time spent, labor and services performed, and the loss of its bargain. Purchaser expressly consents to the foregoing. Purchaser and Seller agree that it would be impracticable or extremely difficult to affix damages if Purchaser so defaults and that the Xxxxxxx Money represents a reasonable estimate of Seller’s damages. Seller agrees to accept the Xxxxxxx Money as liquidated Seller’s total damages and relief for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages Purchaser’s default in its obligation to Seller in close hereunder. In the event of such breach are impractical a termination, the parties shall have no further obligations hereunder except as otherwise provided herein. Notwithstanding anything to ascertain the contrary, Purchaser shall be entitled to a written notice of default and a ten (10) business day cure period before Seller may terminate this Contract under this Section 10.1.1. 10.1.2 In the amount of event Purchaser, following Closing, breaches any covenant contained herein that, by the Xxxxxxx Money is a reasonable estimate thereofexpress terms hereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. survives Closing, Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right remedies shall be to (and hereby covenants that it shall not) xxx Purchaser: (a) institute an action for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim institute a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's suit for actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damagesonly. This Section 6.1 is subject to Section 6.4 hereofIN NO EVENT SHALL PURCHASER AND ITS RESPECTIVE AGENTS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS BE LIABLE TO SELLER FOR ANY PUNITIVE, SPECULATIVE, CONSEQUENTIAL OR OTHER DAMAGES (BEYOND ACTUAL DAMAGES) FOR A DEFAULT UNDER THIS SECTION 10.1.2, ALL OF WHICH ARE HEREBY WAIVED BY SELLER.

Appears in 1 contract

Samples: Real Estate Sale Contract

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)

Default by Purchaser. If Purchaser defaults under this Agreement and such default shall continue for three (3) Business Days after Purchaser has received written notice thereof from Seller or RT Deerfield II defaults (after the sale of applicable notice and cure period) under the Property as contemplated hereunder is not consummated due to Purchaser's default hereunderDeerfield Commons II Agreement, then Seller shall be entitledthe Escrow Agent shall, on demand (after giving Purchaser such written notice as is required under Section 4.5), pay the Xxxxxxx Money Deposit to Seller, as its Seller’s sole and exclusive remedy for such under this Agreement. Seller and Purchaser acknowledge and agree it is impossible to estimate more precisely the damages that might be suffered by Seller upon Purchaser’s default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount . Seller’s retention of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money Deposit is intended not as a penalty, but as full liquidated damages. The right to receive and retain the Xxxxxxx Money Deposit as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of a default or failure or refusal to perform hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: ; (a) for specific performance of this Agreement, or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx MoneyMoney Deposit. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the said Xxxxxxx Money Deposit (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Notwithstanding the foregoing, nothing contained in this Section 6.1 is subject 13.2 will limit (i) Seller’s remedies at law, in equity or herein provided in the event of a breach by Purchaser of any of its obligations that survive Closing or the earlier termination of this Agreement, or (ii) the obligations of RT Deerfield II to Section 6.4 hereof.Seller’s Affiliate under the Deerfield Commons II Agreement. Purchaser Initials Seller Initials

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Cb Richard Ellis Realty Trust)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default in its obligations hereunder (as opposed to a mere failure of a condition hereunder), then Seller shall be entitled, as its sole and exclusive remedy for such default, to terminate this Agreement and receive the entire Xxxxxxx Money (consisting of the Initial Xxxxxxx Money and the Additional Xxxxxxx Money, in the total amount of One Million Dollars ($1,000,000.00) ) as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money (both the Initial Xxxxxxx Money and the Additional Xxxxxxx Money) is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's ’s right to receive the Xxxxxxx Money (both the Initial Xxxxxxx Money and the Additional Xxxxxxx Money) is intended not as a penalty, but as full liquidated damages. The right to receive the Xxxxxxx Money (both the Initial Xxxxxxx Money and the Additional Xxxxxxx Money) as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) xxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any damages of any nature or description other than or in excess of the Xxxxxxx Money (both the Initial Xxxxxxx Money and the Additional Xxxxxxx Money). Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (the Initial Xxxxxxx Money or the Additional Xxxxxxx Money) (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Digital Realty Trust, Inc.)

Default by Purchaser. If In the sale event the Closing and the consummation of the Property transactions contemplated herein do not occur as contemplated hereunder provided herein by reason of any default of Purchaser, Purchaser and Seller agree it would be impractical and extremely difficult to fix the damages which Seller may suffer. Purchaser and Seller hereby agree that if Purchaser’s default is not consummated due cured within ten (10) Business Days after Seller’s notice to Purchaser expressly setting forth such default (a) an amount equal to the Xxxxxxx Money Deposit is a reasonable estimate of the total net detriment Seller would suffer in the event Purchaser defaults and fails to complete the purchase of the Property, and (b) such amount will be the full, agreed and liquidated damages for Purchaser's ’s default hereunderand failure to complete the purchase of the Property, then Seller shall and will be entitled, as its Seller’s sole and exclusive remedy for such default, to terminate this Agreement and receive the Xxxxxxx Money as liquidated damages for the breach of this Agreement and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies (whether at law or in equity. Seller's right ) for any default of Purchaser beyond the foregoing notice and cure period resulting in the failure of consummation of the Closing, whereupon this Agreement will terminate and Seller and Purchaser will have no further rights or obligations hereunder, except with respect to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damagesTermination Surviving Obligations. The right to receive the Xxxxxxx Money payment of such amount as full liquidated damages is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Seller's sole and exclusive remedy . Notwithstanding the foregoing, nothing contained herein will limit Seller’s remedies at law, in equity or as herein provided in the event of a breach by Purchaser of any of the Termination Surviving Obligations. Seller and Purchaser agree that any termination of either of the Other PSAs pursuant to the default hereunder by Purchaserpurchaser provisions in such Other PSA shall automatically terminate this Agreement. Notwithstanding anything herein to the contrary, and Seller hereby waives and releases any Purchaser shall have the right to (cure any and hereby covenants that it shall not) xxx all Purchaser defaults by delivering all of Purchaser: (a) for specific performance ’s closing deliverables under and in accordance with Section 10.2 of this AgreementAgreement and otherwise being ready, or (b) willing and able to recover any damages of any nature or description other than or in excess of close the Xxxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx Seller or seek or claim a refund of the Xxxxxxx Money (or any part thereof) transactions contemplated by this Agreement on the grounds it is unreasonable in amount and exceeds Seller's actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereofScheduled Closing Date.

Appears in 1 contract

Samples: Agreement of Sale and Purchase (Mack Cali Realty L P)

Default by Purchaser. If the sale of the Property as contemplated hereunder is not consummated due to Purchaser's ’s default hereunder, then Seller shall be entitled, as its sole and exclusive remedy for such defaultremedy, to terminate this Agreement and receive the Xxxxxxx Exxxxxx Money as liquidated damages for the breach failure of this Agreement Purchaser to close the purchase of the Property as obligated hereunder and not as a penalty, it being agreed between the parties hereto that the actual damages to Seller in the event of such breach are impractical to ascertain and the amount of the Xxxxxxx Exxxxxx Money is a reasonable estimate thereof, Seller hereby expressly waiving and relinquishing any and all other remedies at law or in equity. Seller's right to receive the Xxxxxxx Money is intended not as a penalty, but as full liquidated damages. The right to receive retain the Xxxxxxx Exxxxxx Money as full liquidated damages is Seller's ’s sole and exclusive remedy in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenants that it they shall not) xxx sxx Purchaser: (a) for specific performance of this Agreement, or (b) to recover any actual damages of any nature or description other than or in excess of the Xxxxxxx Exxxxxx Money. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) xxx sxx Seller or seek or claim a refund of the Xxxxxxx Exxxxxx Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds Seller's ’s actual damages or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages. This Section 6.1 is subject to Section 6.4 hereof.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Nuveen Global Cities REIT, Inc.)

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