Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.
Appears in 2 contracts
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Steadfast Apartment REIT, Inc.), Purchase and Sale Agreement and Joint Escrow Instructions (Steadfast Apartment REIT, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BECAUSE OF BUYER’S DEFAULT, THE DEPOSIT SHALL BE RETAINED BY REASON SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT OR A FAILURE IMPRACTICABLE TO ASCERTAIN BECAUSE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE THE NATURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THE PROPERTY AND THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL AMOUNT OF THE DEPOSIT TO REPRESENTS THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT PARTIES’ REASONABLE ESTIMATE OF SUCH DEFAULT BY BUYER, AND AGREE THAT DAMAGES. THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 13.3, SELLER AND BUYER AGREE THAT THIS LIQUIDATED DAMAGES PROVISION IS INTENDED TO BE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR A DEFAULT BY BUYER, BUT IS NOT INTENDED AND SHOULD NOT BE DEEMED OR CONSTRUED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE LIMIT IN ANY TERMINATION OF WAY BUYER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. SELLER WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER RELEVANT STATUTORY LAW TO SEEK SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY OTHER THAN THE RECEIPT OF THE DEPOSIT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE BUYER’S DEFAULT AND THE PARTIES SHALL APPLY THE PROVISIONS TERMINATION OF THIS SECTION 5.1 TRANSACTION, THE LEASE SHALL NONETHELESS CONTINUE IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTFULL FORCE AND EFFECT. SELLER’S INITIALS: _____ BUYER’S INITIALS: _____ - MISCELLANEOUS Assignments. Buyer and any subsequent assignee may only assign this Agreement or its or their respective rights hereunder with Xxxxxx’s prior written consent, unless the assignment is to an entity affiliated with or controlling, controlled by, or under common control with Buyer, in which case Seller’s consent shall not be required for any such assignment; provided that Buyer and any subsequent assignee may not be released from its or their obligations under this Agreement in connection with any such assignment. To the extent that Xxxxxx’s consent is required in connection with an assignment, Xxxxxx agrees that its consent will not be unreasonably withheld, conditioned, or delayed. Any assignee shall assume all of Xxxxx's or subsequent assignee’s obligations hereunder and succeed to all of Xxxxx's or any subsequent assignee’s rights and remedies hereunder, and any assignment and assumption must be in writing and delivered to Seller at least five (5) business days prior to the Closing Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement and Joint Escrow Instructions, Purchase and Sale Agreement and Joint Escrow Instructions
Buyer’s Default. IF SUBJECT TO ARTICLE XVII, IN THE CLOSING UNDER THIS AGREEMENT EVENT THAT BUYER FAILS TO OCCUR COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY REASON SELLER AFTER THE EXPIRATION OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE PENDING DEFAULT, (OTHER THAN A C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH IN SUBSECTIONS 4.3.2(C) HEREIN, OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE THE TERMINATION OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE TERMINATEDDELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND IF ANY, RELEASED TO SELLER SHALL BE ENTITLED RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN ALL THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO THE EXTENT MADE HEREUNDER, SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES AS ITS SOLE DAMAGES. SELLER AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY DAMAGES TO SELLER AS A RESULT OF SUCH A DEFAULT BY BUYER, BUYER AND AGREE THAT THEY HAVE AGREED THE PAYMENT DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT TO (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 CONSTITUTE A PENALTY OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSFORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SECTION 14.1 SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF BUYER'S INDEMNITIES SET FORTH THE CONFIDENTIALITY OR NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.INITIALS: / [Initials of Buyer and Seller]
Appears in 2 contracts
Samples: Escrow Agreement (Apple REIT Eight, Inc.), Escrow Agreement (Apple REIT Eight, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BECAUSE OF BUYER’S DEFAULT, THE DEPOSIT SHALL BE RETAINED BY REASON SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT OR A FAILURE IMPRACTICABLE TO ASCERTAIN BECAUSE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE THE NATURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THE PROPERTY AND THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL AMOUNT OF THE DEPOSIT TO REPRESENTS THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT PARTIES’ REASONABLE ESTIMATE OF SUCH DEFAULT BY BUYER, AND AGREE THAT DAMAGES. THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 13.3, SELLER AND BUYER AGREE THAT THIS LIQUIDATED DAMAGES PROVISION IS INTENDED TO BE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR A DEFAULT BY BUYER, BUT IS NOT INTENDED AND SHOULD NOT BE DEEMED OR CONSTRUED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE LIMIT IN ANY TERMINATION OF WAY BUYER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. SELLER WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER RELEVANT STATUTORY LAW TO SEEK SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY OTHER THAN THE RECEIPT OF THE DEPOSIT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE BUYER’S DEFAULT AND THE PARTIES SHALL APPLY THE PROVISIONS TERMINATION OF THIS SECTION 5.1 TRANSACTION, THE LEASE SHALL NONETHELESS CONTINUE IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTFULL FORCE AND EFFECT. SELLER’S INITIALS: _____ BUYER’S INITIALS: _____ - MISCELLANEOUS Assignments. Buyer and any subsequent assignee may only assign this Agreement or its or their respective rights hereunder with Seller’s prior written consent, unless the assignment is to an entity affiliated with or controlling, controlled by, or under common control with Buyer, in which case Seller’s consent shall not be required for any such assignment; provided that Buyer and any subsequent assignee may not be released from its or their obligations under this Agreement in connection with any such assignment. To the extent that Seller’s consent is required in connection with an assignment, Seller agrees that its consent will not be unreasonably withheld, conditioned, or delayed. Any assignee shall assume all of Buyer's or subsequent assignee’s obligations hereunder and succeed to all of Buyer's or any subsequent assignee’s rights and remedies hereunder, and any assignment and assumption must be in writing and delivered to Seller at least five (5) business days prior to the Closing Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement and Joint Escrow Instructions, Purchase and Sale Agreement and Joint Escrow Instructions
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BECAUSE OF BUYER’S DEFAULT, THE DEPOSIT SHALL BE RETAINED BY REASON SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT OR A FAILURE IMPRACTICABLE TO ASCERTAIN BECAUSE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE THE NATURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THE PROPERTY AND THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL AMOUNT OF THE DEPOSIT TO REPRESENTS THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT PARTIES’ REASONABLE ESTIMATE OF SUCH DEFAULT BY BUYER, AND AGREE THAT DAMAGES. THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 13.3, SELLER AND BUYER AGREE THAT THIS LIQUIDATED DAMAGES PROVISION IS INTENDED TO BE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR A DEFAULT BY BUYER, BUT IS NOT INTENDED AND SHOULD NOT BE DEEMED OR CONSTRUED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE LIMIT IN ANY TERMINATION OF WAY BUYER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. SELLER WAIVES ANY RIGHTS THAT IT MAY HAVE UNDER RELEVANT STATUTORY LAW TO SEEK SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN EQUITY OTHER THAN THE RECEIPT OF THE DEPOSIT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE BUYER’S DEFAULT AND THE PARTIES SHALL APPLY THE PROVISIONS TERMINATION OF THIS SECTION 5.1 TRANSACTION, THE LEASE SHALL NONETHELESS CONTINUE IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.FULL FORCE AND EFFECT. SELLER’S INITIALS: BUYER’S INITIALS:
Appears in 2 contracts
Samples: Purchase and Sale Agreement and Joint Escrow Instructions, Purchase and Sale Agreement and Joint Escrow Instructions
Buyer’s Default. IF FOLLOWING EXPIRATION OF THE CLOSING UNDER THIS AGREEMENT DUE DILIGENCE PERIOD, IN THE EVENT BUYER BREACHES OR FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER PERFORM ITS OBLIGATION TO PURCHASE THE PROPERTY PURSUANT TO THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN SELLER CONDITION TO CLOSE SHALL, AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTITS SOLE REMEDY THEREFOR, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF RECEIVE THE DEPOSIT MADE PURSUANT TO THE EXTENT MADE HEREUNDERSECTION 2 HEREOF, INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON, AS LIQUIDATED DAMAGES AS ITS SOLE (AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER NOT AS A RESULT PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RELIEF, RIGHTS OR CLAIMS OF SELLER AGAINST BUYER, AT LAW OR IN EQUITY, BY REASON OF SUCH DEFAULT BY BUYERDEFAULT. THEREUPON THIS AGREEMENT SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF ALL FURTHER OBLIGATIONS AND LIABILITIES HEREUNDER, AND AGREE THAT THE PAYMENT EXCEPT FOR THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE CLOSING OR TERMINATION OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOFTHIS AGREEMENT. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 ITS RIGHT TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY AGREEMENT IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BUYER’S BREACH OF ITS OBLIGATION TO SELL PURCHASE THE PROPERTY PROPERTY. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO BUYER ON SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES DAMAGE AMOUNT SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATIONSECTION REPRESENTS BOTH PARTIES’ EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES. NOTWITHSTANDING THE PAYMENT FOREGOING, OR ANY OTHER PROVISION TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTYCONTRARY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 10.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENTIN NO WAY LIMIT OR RESTRICT SELLER’S RECOVERY UNDER SECTION 5.2 ABOVE AND/OR SECTION 14.10 BELOW. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT./s/ WC Seller’s Initials /s/ MR Buyer’s Initials
Appears in 1 contract
Buyer’s Default. AFTER THE EXPIRATION OF THE INVESTIGATION PERIOD, IF THE CLOSING UNDER DOES NOT OCCUR AS A RESULT OF BUYER’S DEFAULT HEREUNDER, SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT FAILS BY GIVING WRITTEN NOTICE THEREOF TO OCCUR BUYER, WHEREUPON THE DEPOSIT SHALL BE PAID TO SELLER AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH DEFAULT HEREUNDER BY REASON BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION TO THE OTHER HEREUNDER, EXCEPT FOR PROVISIONS OF A MATERIAL THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS PROVISION WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES PURSUANT TO SECTION 15.1 BELOW , NOR WAIVE OR AFFECT ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, NOR LIMIT BUYER’S LIABILITY TO SELLER FOR ANY BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO ACCESS AGREEMENT. THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY PARTIES ACKNOWLEDGE AND AGREE THAT IT SELLER’S ACTUAL DAMAGES IN THE EVENT OF BUYER’S DEFAULT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT OR IMPRACTICABLE TO FIX OR ESTABLISH DETERMINE. AFTER NEGOTIATION, THE ACTUAL DAMAGE SUSTAINED BY PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER AS A RESULT OF WOULD INCUR IN SUCH DEFAULT BY BUYER, AND AGREE THAT EVENT. THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES PROVIDED FOR HEREIN IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSSECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE PROVISIONS ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENTLIQUIDATED DAMAGES PROVISION. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.INITIALS: JY GK Seller Buyer
Appears in 1 contract
Samples: Purchase and Sale Agreement (GK Investment Holdings, LLC)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE AND EXCLUSIVE REMEDY AT LAW AND/OR IN EQUITY (EXCEPT AS PROVIDED BELOW) SHALL BE TERMINATED, BUYER SHALL COMPLY WITH TO TERMINATE THIS AGREEMENT AND RECEIVE THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE DEPOSIT AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 ATTORNEYS’ FEES PROVISION SET FORTH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.PARAGRAPH 18 BELOW. MV TT SELLER’S INITIALS BUYER’S INITIALS
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Armstrong Flooring, Inc.)
Buyer’s Default. IF IN THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF A MATERIAL BREACH BY BUYER BUYER'S DEFAULT UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN (a) ESCROW HOLDER SHALL IMMEDIATELY RELEASE TO SELLER CONDITION TO CLOSE ANY AND ALL DEPOSITS IN ESCROW AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (SELLER'S LIQUIDATED DAMAGES AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ANY AND ALL OF THE DEPOSIT SUMS CONSTITUTING DEPOSITS AS SELLER'S FULL COMPENSATION AND LIQUIDATED DAMAGE (SUBJECT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE PROVISIONS OF SECTION 15.14) UNDER AND EXCLUSIVE REMEDYIN CONNECTION WITH THIS AGREEMENT. BUYER AND SELLER HEREBY ACKNOWLEDGE AND THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND/OR IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX OR ESTABLISH ASCERTAIN THE ACTUAL DAMAGE SUSTAINED DAMAGES SUFFERED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND AGREE THAT UNDER THE PAYMENT CIRCUMSTANCES EXISTING AS OF THE DEPOSIT TO SELLER IS EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER ESTIMATE OF THE DAMAGES WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR WILL INCUR AS A RESULT OF SUCH FAILURE (SUBJECT TO THE PROVISIONS OF SECTION 15.14). IN EQUITY THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE DEPOSITS SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT SUBJECT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.15.14). ----------------- ----------------- Seller's Initials Buyer's Initials
Appears in 1 contract
Buyer’s Default. IF IN THE CLOSING UNDER THIS AGREEMENT FAILS EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT PROPERTY PURSUANT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 TERMS OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT AND BUYER FAILS TO PURCHASE {00847420.10 46276-000125 } F:\71018.005\Purchase Agreement\Purchase Agreement – Xxxxxx Village v8.doc THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY XXXXXXX MONEY DEPOSIT ARE AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY WILL BE REASONABLE. IN THE EVENT OF SUCH BREACH, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE PARTIES HERETO AGREE THAT FOLLOWING THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY TERMINATION OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE SECTION 8.1 AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY SHALL BE SELLER'S SOLE AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSEXCLUSIVE REMEDY THEREFOR. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 8.1 SHALL SURVIVE NOT APPLY TO ANY TERMINATION OF INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Buyer's Initials /s/ J.R. Seller's Initials /s/ G.K.H.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. IF SUBJECT TO ARTICLE XVII, IN THE CLOSING UNDER THIS AGREEMENT EVENT THAT BUYER FAILS TO OCCUR COMPLETE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN (A) A DEFAULT BY REASON SELLER AFTER THE EXPIRATION OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM SELLER (PROVIDED NO NOTICE SHALL EXTEND THE TIME FOR CLOSING) (B) THE EXISTENCE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE PENDING DEFAULT, (OTHER THAN A C) THE FAILURE OF ANY CONDITION TO BUYER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH IN SUBSECTIONS 4.3.2(C) HEREIN, OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE THE TERMINATION OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT BY BUYER PURSUANT TO A TERMINATION RIGHT EXPRESSLY SET FORTH HEREIN OR OTHERWISE PROVIDED BY LAW, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND IN SUCH EVENT THE DEPOSIT, IF ANY HELD BY TITLE COMPANY (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE TERMINATEDDELIVERED TO SELLER BY TITLE COMPANY UPON WRITTEN DEMAND AND THE DEPOSIT, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND IF ANY, RELEASED TO SELLER SHALL BE ENTITLED RETAINED BY SELLER, AND SUCH DEPOSITS (TOGETHER WITH ALL INTEREST ACCRUED THEREON) SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES WITH RESPECT TO SUCH DEFAULT. THEREAFTER, BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN ANY SECTION OF THIS AGREEMENT, WHICH OBLIGATIONS SHALL BE PERFORMABLE AND OWING IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES, AND EXCEPT THAT SELLER SHALL ALSO HAVE THE RIGHT TO COLLECT FROM BUYER ALL COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES AND EXPENSES) INCURRED BY SELLER IN THE EVENT BUYER DISPUTES SELLER’S RIGHT TO RECEIVE AND RETAIN ALL THE FULL AMOUNT OF THE DEPOSIT (TOGETHER WITH ALL INTEREST ACCRUED THEREON), WHICH SUMS SHALL BE PAYABLE BY BUYER TO THE EXTENT MADE HEREUNDER, SELLER IN ADDITION TO ANY SUMS RETAINED HEREUNDER BY SELLER AS LIQUIDATED DAMAGES AS ITS SOLE DAMAGES. SELLER AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY DAMAGES TO SELLER AS A RESULT OF SUCH A DEFAULT BY BUYER, BUYER AND AGREE THAT THEY HAVE AGREED THE PAYMENT DEPOSIT IS A FAIR AND REASONABLE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND THE COSTS INCURRED BY SELLER AND THAT RETENTION OF THE DEPOSIT TO (TOGETHER WITH ALL INTEREST ACCRUED THEREON) BY SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 CONSTITUTE A PENALTY OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSFORFEITURE. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SECTION 14.1 SHALL NOT LIQUIDATE PROHIBIT SELLER FROM BRINGING AN ACTION AGAINST BUYER FOR BREACH OF ANY OF 31 THE CONFIDENTIALITY OR LIMIT BUYER'S LIABILITY NONDISCLOSURE PROVISIONS CONTAINED IN THIS AGREEMENT. INITIALS: ___________/___________ [Initials of Buyer and Seller] 14.2 Seller’s Default. SUBJECT TO ARTICLE XVII, IF BUYER TENDERS PERFORMANCE OF ALL OF ITS OBLIGATIONS IN ACCORDANCE WITH THIS AGREEMENT AND SELLER REFUSES OR FAILS TO CONVEY THE PROPERTY AS HEREIN PROVIDED FOR ANY REASON OTHER THAN (A) A DEFAULT BY BUYER AFTER THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD FOLLOWING WRITTEN NOTICE FROM BUYER'S INDEMNITIES , (B) THE EXISTENCE OF A PENDING DEFAULT, (C) THE FAILURE OF A CONDITION TO SELLER’S OBLIGATION TO CLOSE THIS TRANSACTION WHICH IS EXPRESSLY SET FORTH IN HEREIN, OR (D) ANY OTHER PROVISION OF THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT PERMITS SELLER TO TERMINATE THIS AGREEMENT OR OTHERWISE RELIEVES SELLER OF THE DEPOSIT THEN HELD OBLIGATION TO CONVEY THE PROPERTY, BUYER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER EITHER TO TERMINATE THIS AGREEMENT AND RECOVER THE DEPOSIT, IN WHICH CASE BUYER SHALL ALSO BE ENTITLED TO RECOVER ITS ACTUAL OUT-OF-POCKET EXPENSES IN CONNECTION WITH THE PROPOSED ACQUISITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION, DUE DILIGENCE AND NEGOTIATIONS WITH SELLER AND LENDERS, IF APPLICABLE), NOT TO EXCEED THE SUM OF ONE HUNDRED THOUSAND DOLLARS ($100,000), OR TO ENFORCE, SELLER’S OBLIGATIONS UNDER THIS AGREEMENT TO CONVEY THE PROPERTY BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED AN ACTION FOR SPECIFIC PERFORMANCE, PROVIDED THAT NO SUCH ACTION IN SPECIFIC PERFORMANCE SHALL SEEK TO BE REQUIRE SELLER TO DO ANY OF THE FOLLOWING: (A) CHANGE THE CONDITION OF THE PROPERTY OR RESTORE THE SAME AFTER ANY FIRE OR OTHER CASUALTY; (B) EXPEND MONEY OR POST A FORFEITURE BOND TO REMOVE A TITLE ENCUMBRANCE OR PENALTYDEFECT (OTHER THAN A SELLER’S MONETARY LIEN) OR CORRECT ANY MATTER SHOWN ON A SURVEY OF THE PROPERTY; OR (C) SECURE ANY PERMIT, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT APPROVAL, OR CONSENT WITH RESPECT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 PROPERTY OR SELLER’S CONVEYANCE OF THE PARALLEL AGREEMENT.PROPERTY. INITIALS: ___________/___________ [Initials of Buyer and Seller]
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Buyer’s Default. IF IN THE CLOSING EVENT BUYER BREACHES OR FAILS TO PERFORM ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN SELLER CONDITION TO CLOSE SHALL, AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTITS SOLE REMEDY THEREFOR, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF RECEIVE THE DEPOSIT MADE PURSUANT TO THE EXTENT MADE HEREUNDERSECTION 2 HEREOF, INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON, AS LIQUIDATED DAMAGES AS ITS SOLE (AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER NOT AS A RESULT OF SUCH DEFAULT BY BUYERPENALTY) IN LIEU OF, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES AS FULL COMPENSATION FOR, ALL OTHER REMEDIES RIGHTS OR CLAIMS OF SELLER AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF DEFAULT. THEREUPON THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY ALL FURTHER OBLIGATIONS AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOINGLIABILITIES HEREUNDER, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY EXCEPT FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE CLOSING OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION REPRESENTS BOTH PARTIES’ EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES. NOTWITHSTANDING THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT FOREGOING, OR ANY OTHER PROVISION TO THE PROVISIONS OF SECTION 5.1 THEREOFCONTRARY, THIS AGREEMENT SECTION 10.1 SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS IN NO WAY LIMIT OR RESTRICT SELLER’S RECOVERY UNDER SECTION 5.1 IN THE SAME MANNER AS 5.2 ABOVE AND/OR SECTION 5.1 OF THE PARALLEL AGREEMENT.14.10 BELOW. /s/ WC Seller’s Initials /s/ AB /s/ JB Buyer’s Initials
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Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS SALE OF THE PROPERTY IS NOT --------------- CONSUMMATED DUE TO OCCUR BY REASON OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A HEREUNDER AND THE SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTTHEN IN DEFAULT HEREUNDER, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND THEN SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES ("LIQUIDATED DAMAGES") AS ITS SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY HEREUNDER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH ACTUAL DAMAGES IN THE ACTUAL DAMAGE SUSTAINED BY SELLER AS CASE OF BUYER'S DEFAULT, AND THAT THE LIQUIDATED DAMAGES ARE A RESULT REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH EVENT. IN THE EVENT OF A DEFAULT BY BUYERBUYER AS AFORESAID AND THE SELLER IS NOT THEN IN DEFAULT HEREUNDER, AND AGREE THAT THE PAYMENT OF ESCROW AGENT, UPON WRITTEN INSTRUCTIONS TO DO SO SHALL IMMEDIATELY DISBURSE THE DEPOSIT TO SELLER, AND SHALL CANCEL THE ESCROW CREATED PURSUANT HERETO, IN WHICH EVENT SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES AND BUYER SHALL BE RELIEVED FROM ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT LIABILITY HEREUNDER EXCEPT AS OTHERWISE HAVE AT LAW OR EXPRESSLY PROVIDED IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH . RECEIPT OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SAID LIQUIDATED DAMAGES SHALL BE SELLER'S RIGHT TO PURSUE ANY SOLE AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY EXCLUSIVE REMEDY IN THE EVENT OF A BREACH BY BUYER AS AFORESAID. SELLER AND BUYER ACKNOWLEDGE THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE THEY HAVE READ AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. UNDERSTAND THE PROVISIONS OF THIS SECTION 5.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. IN NO EVENT SHALL SURVIVE SELLER'S ACCEPTANCE OF THE LIQUIDATED DAMAGES BE A LIMIT OF ANY TERMINATION OF KIND ON BUYER'S EXPRESS INDEMNITY AND DEFENSE OBLIGATIONS CONTAINED IN THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.
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Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT CLOSE OF ESCROW FAILS TO OCCUR BY REASON SOLELY BECAUSE OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN SELLER CONDITION MAY UNILATERALLY INSTRUCT ESCROW HOLDER TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN CANCEL THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL THEREUPON BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE RELEASED FROM ITS OBLIGATIONS HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER'S DAMAGES BY REASON OF BUYER'S DEFAULT. ACCORDINGLY, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT REASONABLE AT SUCH TIME TO FIX OR ESTABLISH AWARD SELLER "LIQUIDATED DAMAGES" EQUAL TO THE ACTUAL DAMAGE SUSTAINED BY AMOUNT OF THE DEPOSITS AND ALL INTEREST EARNED THEREON. SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND BUYER ACKNOWLEDGE AND AGREE THAT THE PAYMENT FOREGOING AMOUNT IS REASONABLE AS LIQUIDATED DAMAGES AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF THE DEPOSIT ANY OTHER RELIEF, RIGHT OR REMEDY, AT LAW OR IN EQUITY, TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BE ENTITLED BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED'S DEFAULT. ACCORDINGLY, HOWEVERPROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SELLER'S UNILATERAL INSTRUCTION TO TERMINATE THE ESCROW, ESCROW HOLDER SHALL CANCEL THE ESCROW AND DISBURSE THE DEPOSITS AND INTEREST EARNED THEREON TO SELLER. FOR THE PURPOSE OF THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF THIS SECTION 20 OF 14.3, BUYER SHALL BE DEEMED TO HAVE COMMITTED A MATERIAL DEFAULT UNDER THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH AGREEMENT AT THE TIME BUYER IS IN FACT IN DEFAULT AND/OR BUYER NOTIFIES SELLER OF BUYER'S OBLIGATIONS ELECTION TO TERMINATE THIS AGREEMENT AND THE ESCROW AT A TIME WHEN BUYER DOES NOT HAVE THE RIGHT UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF TO SO TERMINATE THIS AGREEMENT IN BREACH OF OR THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSESCROW. WITHOUT LIMITING THE FOREGOINGFOREGOING PROVISIONS OF THIS SECTION, SELLER WAIVES ANY AND ALL RIGHTS WHICH SELLER OTHERWISE WOULD HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT AGREEMENT. SELLER AND BUYER EACH ACKNOWLEDGE THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT14.3 AND BY THEIR SIGNATURES IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. IN SELLER: BUYER: THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOFVONS COMPANIES, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTINC., PACIFIC GULF PROPERTIES, INC. a Michigan corporation a Maryland corporation By: /s/ DONAXX X. XXXXXX By: /s/ DONAXX X. XXXXXXX ------------------------------- ----------------------------------- Print Name: DONAXX X. XXXXXX Print Name: DONAXX X. XXXXXXX ------------------------ --------------------------- Its: SR. VICE-PRES Its: EVP ------------------------------ ---------------------------------- By: /s/ PATRXXXX X. XXXXXX By: /s/ LONNXX XXXXX ------------------------------- ----------------------------------- Print Name: PATRXXXX X. XXXXXX Print Name: LONNXX XXXXX ------------------------ --------------------------- Its: ASSISTANT SECRETARY Its: S.V.P. ------------------------------ ---------------------------------- Execution San Diego, CA (Miramar DistCntr)
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Samples: Agreement for Purchase and Sale (Pacific Gulf Properties Inc)
Buyer’s Default. IF IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, PROVIDED, HOWEVER, THAT IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER AFTER THE CLOSING DOCUMENTS DELIVERY DATE AND BEFORE THE CLOSING, IN ADDITION TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATEDXXXXXXX MONEY DEPOSIT, BUYER SHALL COMPLY ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET COSTS INCURRED BY SELLER IN CONNECTION WITH THE PROVISIONS DEFEASANCE OF CLAUSES SELLER’S CURRENT LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS (b$125,000.00) AND (c) of SECTION 4.5 ABOVE SUCH AMOUNT TOGETHER WITH THE XXXXXXX MONEY DEPOSIT SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO THE EXTENT MADE HEREUNDERESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS ITS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY THEREFOR. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 8.1 SHALL SURVIVE NOT APPLY TO ANY TERMINATION OF INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Buyer's Initials /s/ DW Seller's Initials /s/GKH
Appears in 1 contract
Samples: Agreement for Purchase and Sale (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATEPROPERTY AS PROVIDED IN THIS AGREEMENT AND SUCH FAILURE CONSTITUTES A DEFAULT OF BUYER (PROVIDED THAT BUYER HAS RECEIVED NOTICE OF DEFAULT AND THREE (3) BUSINESS DAYS OPPORTUNITY TO CURE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SELLER’S SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE REMEDY WHETHER AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, (EXCEPT AS PROVIDED BELOW) SHALL BE TO TERMINATE THIS AGREEMENT AND RECEIVE THE FOREGOING DEPOSIT AS LIQUIDATED DAMAGES AND SELLER SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER BE RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 ATTORNEYS’ FEES PROVISION SET FORTH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.PARAGRAPH 18 BELOW. /s/ DT /s/ HS SELLER’S INITIALS BUYER’S INITIALS
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Buyer’s Default. IF If Buyer defaults in its obligation to purchase the Properties on the Closing Date under this Restated Agreement, Seller shall be entitled, as its sole remedy (without limiting any Seller’s rights with respect to any indemnification obligations of Buyer under this Restated Agreement), to terminate this Restated Agreement and receive the Deposit as liquidated damages for such breach of this Restated Agreement, 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 Deposit is a reasonable estimate thereof. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE CLOSING PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLERS’ DAMAGES AND AS SELLERS’ EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS RESTATED AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT PART OF BUYER. THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY PARTIES ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER SELLERS PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOFBuyer’s Initials Seller’s Initials Nothing contained in this Section 14.1 shall limit or prevent Seller from (a) asserting any legal or equitable claims against Buyer for any breaches under this Restated Agreement other than the failure of Buyer to consummate the sale contemplated by this Restated Agreement, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTincluding Buyer’s obligations with respect to any indemnification of Seller under this Restated Agreement or obligation to pay attorneys’ fees and other amounts under Section 24, or (b) enforcing any indemnity obligation of Buyer under this Restated Agreement or preclude Seller from obtaining a damage award in connection therewith, or (c) enforcing Buyer’s other obligations and liabilities which survive a termination of this Restated Agreement provided that in no event shall Seller be entitled to or Buyer be liable for any incidental, consequential or punitive damages (except to the extent actually awarded in any third party claim for which Buyer has expressly indemnified Seller under this Restated Agreement).
Appears in 1 contract
Samples: Purchase and Sale Agreement (CIM Commercial Trust Corp)
Buyer’s Default. IF THE CLOSING UNDER THIS SALE CONTEMPLATED BY THE AGREEMENT FAILS TO OCCUR BY REASON AND FIFTH AMENDMENT IS NOT CONSUMMATED BECAUSE OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL PURCHASE THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS THE AGREEMENT OR WRONGFUL TERMINATION AS AMENDED BY THE FIFTH AMENDMENT, THEN: (A) THE AGREEMENT AND FIFTH AMENDMENT SHALL TERMINATE; (B) THE DEPOSIT PLUS THE SECOND ADDITIONAL DEPOSIT PLUS THE THIRD ADDITIONAL DEPOSIT AND FOURTH ADDITIONAL DEPOSIT PREVIOUSLY PAID TO SELLER SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES; AND (C) SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO EACH OTHER EXCEPT THOSE THAT SURVIVE THE TERMINATION OF THE AGREEMENT AND FIFTH AMENDMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THE AGREEMENT AND FIFTH AMENDMENT BY BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT PLUS THE SECOND ADDITIONAL DEPOSIT, AND THE THIRD ADDITIONAL DEPOSIT AND FOURTH ADDITIONAL DEPOSIT, PLUS INTEREST, REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THE FIFTH AMENDMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. BUYER AND SELLER AGREE THAT SELLER’S RIGHT TO RETAIN THE DEPOSIT PLUS THE SECOND ADDITIONAL DEPOSIT, AND THE THIRD ADDITIONAL DEPOSIT AND FOURTH ADDITIONAL DEPOSIT, TOGETHER WITH ANY INTEREST AND EARNINGS EARNED THEREON, SHALL BE SELLER’S SOLE REMEDY, AT LAW AND IN EQUITY, FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT AND FIFTH AMENDMENT. HOWEVER, NOTHING IN THIS SECTION SHALL (i) PREVENT OR PRECLUDE SELLER’S RECOVERY OF REASONABLE ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 9.8 OF THE ORIGINAL AGREEMENT, OR (ii) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF BUYER’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THE ORIGINAL AGREEMENT. SELLER HEREBY WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.FIFTH AMENDMENT . INITIALS RH SELLER JW BUYER
Appears in 1 contract
Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Buyer’s Default. IF IN THE CLOSING UNDER EVENT THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT FAILS DOES NOT CLOSE DUE TO OCCUR BY REASON THE DEFAULT OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYERCURED WITHIN TEN (10) (AND BUYER DOES NOT CURE DAYS AFTER RECEIPT OF WRITTEN NOTICE FROM SELLER SPECIFYING SUCH MATERIAL DEFAULT, BREACH OR FAILURE THEN SELLER’S RETENTION OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER DEPOSIT SHALL BE SELLER’S SOLE AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE)EXCLUSIVE REMEDY UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, FOR SUCH DEFAULT, SUBJECT TO THE WRITTEN ELECTION PROVISIONS OF SELLER TO BUYER AND ESCROW HOLDERTHIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL BE TERMINATED, CONSTRUED TO LIMIT SELLER’S RIGHTS OR DAMAGES UNDER ANY INDEMNITIES GIVEN BY BUYER SHALL COMPLY WITH TO SELLER UNDER THIS AGREEMENT. SELLER AND BUYER HAVE DISCUSSED THE PROVISIONS POSSIBLE CONSEQUENCES TO SELLER IN THE EVENT THAT THE ESCROW FAILS TO CLOSE AS A RESULT OF CLAUSES (b) BUYER’S DEFAULT. SELLER AND (c) of SECTION 4.5 ABOVE BUYER HAVE DETERMINED AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY DAMAGES TO SELLER AS OCCURRING IN THE EVENT OF BUYER’S DEFAULT UNDER THIS AGREEMENT. THE PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES SELLER WOULD SUFFER IN THE EVENT OF BUYER’S NONPERFORMANCE OF ANY OBLIGATION HEREUNDER, HEREBY AGREE THAT A RESULT REASONABLE ESTIMATE OF SUCH DAMAGES IS AN AMOUNT EQUAL TO THE DEPOSIT, AND IN THE EVENT THIS TRANSACTION FAILS TO CLOSE DUE TO BUYER’S DEFAULT BY UNDER THIS AGREEMENT, SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE SAME AS FULLY AGREED LIQUIDATED DAMAGES. SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, AND AGREE THAT INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE PAYMENT AND RETENTION OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF THIS CALIFORNIA CIVIL CODE SECTION 5.1 SHALL SURVIVE 3389. UPON ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOFSUCH BREACH OR DEFAULT BY BUYER HEREUNDER, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO RETAIN SUCH LIQUIDATED DAMAGES, AND EXCEPT AS EXPRESSLY PROVIDED ABOVE. THE PARTIES AGREE THAT, UNDER THE CIRCUMSTANCES OF THIS TRANSACTION AND THE PARTIES SHALL APPLY MARKETPLACE AT THE PROVISIONS OF TIME HEREOF, THIS LIQUIDATED DAMAGES PROVISION IS REASONABLE AND IN ACCORDANCE WITH CALIFORNIA CIVIL CODE SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.1671. SELLER’S INITIALS BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Shopoff Properties Trust, Inc.)
Buyer’s Default. IF IN THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR EVENT THE TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF A MATERIAL BREACH BY BUYER BUYER'S DEFAULT UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN (1) ESCROW HOLDER SHALL IMMEDIATELY RELEASE TO SELLER CONDITION TO CLOSE ANY AND ALL DEPOSITS IN ESCROW AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER SELLER'S LIQUIDATED DAMAGES AND (II2) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ANY AND ALL OF THE DEPOSIT SUMS CONSTITUTING DEPOSITS AS SELLER'S FULL COMPENSATION AND LIQUIDATED DAMAGE (SUBJECT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE PROVISIONS OF SECTION 10.8) UNDER AND EXCLUSIVE REMEDYIN CONNECTION WITH THIS AGREEMENT. BUYER AND SELLER HEREBY ACKNOWLEDGE AND THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND/OR IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX OR ESTABLISH ASCERTAIN THE ACTUAL DAMAGE SUSTAINED DAMAGES SUFFERED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND AGREE THAT UNDER THE PAYMENT CIRCUMSTANCES EXISTING AS OF THE DEPOSIT TO SELLER IS EFFECTIVE DATE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER ESTIMATE OF THE DAMAGES WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR WILL INCUR AS A RESULT OF SUCH FAILURE (SUBJECT TO THE PROVISIONS OF SECTION 10.8). IN EQUITY THE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER'S DEFAULT, THEN THE DEPOSITS SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT SUBJECT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.10.8). _________________ ________________ Seller's Initials Buyer's Initials
Appears in 1 contract
Samples: Real Property Purchase and Sale Agreement (Hines Horticulture Inc)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR DUE TO THE DEFAULT OF BUYER AND SUCH DEFAULT IS NOT CURED WITHIN FIVE (5) DAYS AFTER NOTICE TO BUYER, THEN SELLER’S SOLE REMEDY IN SUCH EVENT SHALL BE TO TERMINATE THIS AGREEMENT AND TO RETAIN THE XXXXXXX MONEY AS LIQUIDATED DAMAGES, SELLER WAIVING ALL OTHER RIGHTS OR REMEDIES IN THE EVENT OF SUCH DEFAULT BY REASON BUYER (PROVIDED THAT THIS PROVISION SHALL NOT (I) LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS FEES OR OTHER ENFORCEMENT COSTS PURSUANT TO SECTION 9.7, OR (II) WAIVE OR AFFECT SELLER’S RIGHTS AND BUYER’S OBLIGATIONS UNDER ANY INDEMNIFICATION PROVISION IN THIS AGREEMENT). THE PARTIES ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE WILL BE DIFFICULT TO ASCERTAIN, AND THAT SUCH LIQUIDATED DAMAGES REPRESENT THE PARTIES’ BEST ESTIMATE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL DAMAGES. SUCH RETENTION OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED XXXXXXX MONEY BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSSECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT IF SELLER IS ENTITLED TO THE PROVISIONS XXXXXXX MONEY, SELLER SHALL RETAIN OR CAUSE ESCROW AGENT TO DELIVER THE ENTIRE XXXXXXX MONEY TO SELLER, AND BUYER SHALL DELIVER AN INSTRUMENT CONFIRMING SUCH RELEASE PROMPTLY UPON DEMAND OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.SELLER. Seller’s initials Buyer’s initials
Appears in 1 contract
Samples: Purchase and Sale Agreement (Universal Health Realty Income Trust)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATESELLER, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE)AS AND WHEN REQUIRED UNDER THIS AGREEMENT, AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDYREMEDY (AS PERMITTED BY THE OFFICIAL CODE OF GEORGIA ANNOTATED (“O.C.G.A.”) §13-6-7). BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S ’S BREACH OF BUYER'S ’S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S ’S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S ’S LIABILITY FOR ANY OF BUYER'S ’S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.EXPRESSLY
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Steadfast Apartment REIT III, Inc.)
Buyer’s Default. IF IN THE CLOSING UNDER EVENT THAT BUYER DEFAULTS IN ITS OBLIGATIONS TO CLOSE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN SELLER'S DEFAULT, BUYER'S DISAPPROVAL OF ANY CONTINGENCY OR BUYER'S EXERCISE OF ITS RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO THE TERMS OF THIS AGREEMENT, AND BUYER FAILS TO OCCUR BY REASON CURE SUCH DEFAULT WITHIN TEN (10) BUSINESS DAYS AFTER RECEIVING WRITTEN NOTICE OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT SUCH DEFAULT FROM SELLER, OR, IF SUCH DEFAULT IS NOT CAUSED BY BUYERREASONABLY SUSCEPTIBLE OF BEING CURED WITHIN SUCH TEN (10) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTDAY PERIOD, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER COMMENCE TO CURE SUCH DEFAULT WITHIN SUCH TEN (10) DAY PERIOD, THEN, UPON DEMAND BY SELLER, THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT DEPOSIT SHALL BE TERMINATED, PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER SHALL COMPLY WITH WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL AMOUNT OF THE DEPOSIT TO REPRESENTS THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT PARTIES' REASONABLE ESTIMATE OF SUCH DEFAULT BY BUYER, DAMAGES. IN ANY AND AGREE THAT THE PAYMENT OF THE DEPOSIT ALL ACTIONS BROUGHT PURSUANT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF ENFORCE BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOWTHIS AGREEMENT, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IT SHALL BE CONCLUSIVELY PRESUMED THAT THE ABOVE-DESCRIBED LIQUIDATED DAMAGES SHALL BE THE SOLE REMEDY OF SELLER IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT DEFAULT HEREUNDER AND IT SHALL NOT BE PROPER UNDER ANY CIRCUMSTANCES THAT EXPRESSLY SURVIVE TERMINATION. BUYER'S OBLIGATION TO PURCHASE THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO PROPERTY BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTSPECIFICALLY ENFORCED.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Irvine Apartment Communities L P)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR AND EXTREMELY DIFFICULT TO FIX ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER'S DEFAULT OR ESTABLISH BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF SUCH DEFAULT THIS AGREEMENT BY BUYER, AND AGREE THAT . THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTY, PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369 BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTION 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON DEFAULT SOLELY BY BUYER, THIS SECTION 5.1 AGREEMENT SHALL SURVIVE BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY TERMINATION FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF THIS AGREEMENTSELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW HOLDER. IN THE EVENT FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT INDEMNITY PROVIDED BY BUYER PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE PARAGRAPHS 14 AND THE PARTIES SHALL APPLY THE PROVISIONS 18 OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.. SELLER'S INITIALS BUYER'S INITIALS [SIG] ------------------------ -----------------------
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Pacific Gulf Properties Inc)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON SALE CONTEMPLATED HEREBY IS NOT CONSUMMATED BECAUSE OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL PURCHASE THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THEN: (A) THIS AGREEMENT OR WRONGFUL TERMINATION SHALL TERMINATE; (B) THE DEPOSIT SHALL BE PAID TO AND RETAINED BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED DAMAGES; AND (C) SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. EACH OTHER EXCEPT THOSE WHICH SURVIVE THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE CLOSING DOES NOT OCCUR AMOUNT OF THE DEPOSIT PLUS INTEREST REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE PARALLEL CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. BUYER AND SELLER AGREE THAT SELLER’S RIGHT TO RETAIN THE DEPOSIT TOGETHER WITH ANY INTEREST AND EARNINGS EARNED THEREON SHALL BE SELLER’S SOLE REMEDY, AT LAW AND IN EQUITY, FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. HOWEVER, NOTHING IN THIS SECTION 6.1 SHALL (i) PREVENT OR PRECLUDE SELLER’S RECOVERY OF REASONABLE ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 9.8 BELOW, OR (ii) IMPAIR OR LIMIT THE PROVISIONS EFFECTIVENESS OR ENFORCEABILITY OF SECTION 5.1 THEREOF, BUYER’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE AGREEMENT. SELLER HEREBY WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.. INITIALS RH SELLER AT BUYER
Appears in 1 contract
Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Buyer’s Default. IF IN THE CLOSING UNDER THIS AGREEMENT FAILS TO EVENT THE CLOSE OF ESCROW DOES NOT OCCUR SOLELY BY REASON OF A MATERIAL BREACH BY ANY DEFAULT OF BUYER UNDER THIS AGREEMENT OR A FAILURE (ALL CONDITIONS TO BUYER'S OBLIGATIONS RESPECTING THE CLOSE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT ESCROW HAVING BEEN SATISFIED), WHICH DEFAULT IS NOT CAUSED BY BUYER) CURED WITHIN TWO (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE 2 BUSINESS DAYS .AFTER THE RECEIPT OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING WRITTEN NOTICE THEREOF FROM SELLER AND (II) SELLER, THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND/OR AND EXTREMELY DIFFICULT TO FIX ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER, THEREFORE THE PARTIES DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE ITS PURCHASE OF SELLER'S MEMBERSHIP INTEREST IN THE COMPS IS AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR ESTABLISH IN EQUITY) AN AMOUNT EQUAL TO THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT DEPOSIT (WHICH FOR THIS PURPOSE SHALL INCLUDE ANY ACCRUED INTEREST THEREON) AND THE CLOSING EXTENSION DEPOSIT, IF MADE BY BUYER. SAID AMOUNT SHALL BE THE FULL, AGREED AND AGREE THAT LIQUIDATED DAMAGES FOR THE PAYMENT BREACH OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. THIS AGREEMENT BY BUYER AND SELLER HEREBY WAIVES ALL OTHER CLAIMS TO DAMAGES OR ANY OTHER REMEDIES AGAINST BUYER WHICH BUYER, EXCEPT FOR BUYER'S INDEMNITY OBLIGATIONS OR ANY CLAIMS BY SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 FOR ATTORNEYS' FEES UNDER SECTIONS 3.4 AND 9.2 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTY, PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369 BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671,1676 AND 1677. NOTWITHSTANDING THE FOREGOING, THE TERMS AND PROVISIONS OF THIS SECTION 5.1 1.7.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENTNOT LIMIT BUYER'S LIABILITY SECTIONS 3.4 AND 9.2. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOFRFM KK SO ---------------- ----------------- Buyer's Initials Seller's Initials Notwithstanding anything to the contrary contained herein, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTthe provisions of this Section 1.7 shall survive the Close of Escrow or earlier termination of this Agreement.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Maguire Properties Inc)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO OCCUR BE SUFFERED BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF EVENT BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION IN VIOLATION OF ITS OBLIGATIONS UNDER THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER’S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE. IN THE EVENT OF SUCH BREACH, AS SELLER’S SOLE AND EXCLUSIVE REMEDY, SELLER SHALL BE ENTITLED TO AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO ESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY SELLER VIRTUE OF BUYER’S FAILURE TO PURCHASE THE PROPERTY AND SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR BUYER’S BREACH OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSAGREEMENT. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION 8.1 DO NOT APPLY TO ARTICLE 6, SECTIONS 7.4 AND 7.16 AND SUBSECTION 2.5.4 OF THIS AGREEMENTAGREEMENT OR ANY OTHER PROVISION THAT HAS AN EXPRESS INDEMNITY OBLIGATION THEREIN (IT BEING UNDERSTOOD AND AGREED THAT SELLER’S SOLE REMEDY WITH RESPECT TO SUCH SECTIONS SHALL BE AS SET FORTH IN SUCH APPLICABLE SECTION), OR, WITH RESPECT TO ANY BREACH OF WHICH SELLER FIRST BECOMES AWARE AFTER CLOSING, ANY PROVISION THAT SURVIVES THE CLOSING. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Buyer's Initials XX Xxxxxxx'x Initials RS
Appears in 1 contract
Samples: Agreement for Purchase And (Steadfast Apartment REIT III, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE REMEDY (EXCEPT AS PROVIDED BELOW) SHALL BE TERMINATED, BUYER SHALL COMPLY WITH TO TERMINATE THIS AGREEMENT AND RECEIVE THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE DEPOSIT AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14, 17 AND 21.15 OF THIS SECTION 5.1 SHALL AGREEMENT AND THE ATTORNEYS’ FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW, AND ANY OBLIGATIONS UNDER THIS AGREEMENT THAT EXPRESSLY SURVIVE THE CLOSE OF ESCROW OR ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.RJM SELLER’S INITIALS WAS BUYER’S INITIALS
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Shopoff Properties Trust, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER'S SOLE REMEDY (EXCEPT AS PROVIDED BELOW) SHALL BE TERMINATED, BUYER SHALL COMPLY WITH TO TERMINATE THIS AGREEMENT AND RECEIVE THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE DEPOSIT AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATIONDEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSSELLER. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO BUYER'S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 13 AND 16 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 ATTORNEYS' FEES PROVISION SET FORTH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.PARAGRAPH 17 BELOW. SELLER'S INITIALS BUYER'S INITIALS 4061526v11
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions
Buyer’s Default. IF IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEMDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER PURCHASE THE CLOSING DOCUMENTS PROPERTY DUE TO WHICH IT IS BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A PARTY OR RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PURCHASE PRICE ON PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE SPECIFIED CLOSING DATE)AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO THE EXTENT MADE HEREUNDERESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS ITS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY THEREFOR. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 8.1 SHALL SURVIVE NOT APPLY TO ANY TERMINATION OF INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Buyer's Initials /s/ DW Seller's Initials /s/ GKH
Appears in 1 contract
Samples: Agreement for Purchase and Sale (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT SHALL BE TERMINATEDBY REASON OF ANY DEFAULT OF BUYER, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED RELEASED 45 FROM ITS OBLIGATION TO RETAIN ALL OF SELL THE DEPOSIT PROPERTY TO THE EXTENT MADE HEREUNDERBUYER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. MAY PROCEED AGAINST BUYER UPON ANY CLAIM OR REMEDY WHICH IT MAY HAVE AT LAW OR IN EQUITY; PROVIDED, HOWEVER, THAT BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT AGGREGATE AMOUNT OF THE DEPOSIT DEPOSITS (INCLUDING ALL INTEREST), THE PAYMENT BY BUYER OF ALL ESCROW CANCELLATION ON CHARGES AND FEES, AND THE DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS IS A REASONABLE APPROXIMATION THEREOF. ACCORDINGLY, IN THE EVENT THAT BUYER BREACHES THIS AGREEMENT BY DEFAULTING IN THE COMPLETION OF THE PURCHASE, THE AGGREGATE AMOUNT OF THE DEPOSITS (INCLUDING ALL INTEREST), THE PAYMENT BY BUYER OF ALL ESCROW CANCELLATION CHARGES AND FEES, AND THE DELIVERY TO SELLER HEREBY WAIVES BY BUYER OF THE DUE DILIGENCE MATERIALS SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF SELLER, AND SHALL BE PAID BY BUYER TO SELLER AND THE TITLE COMPANY AS SELLER'S SOLE REMEDY. SELLER AGREES TO WAIVE ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (AI) BUYER'S OBLIGATIONS TO PAY TO SELLER ALL ATTORNEYS' FEES AND COSTS OF SELLER TO ENFORCE THE PROVISIONS OF THIS SECTION 20 OF THIS AGREEMENT5.1 AND/OR BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 4.4 AND 15 HEREOF, (BII) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S INDEMNITY OBLIGATIONS UNDER SECTION SECTIONS 4.4 AND 15 OR SECTION 19 BELOWHEREOF, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (DIII) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSSUCH INDEMNITIES. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT SELLER'S INITIALS____ BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.INITIALS____
Appears in 1 contract
Samples: Lease Agreement (Jabil Circuit Inc)
Buyer’s Default. IF THE CLOSING UNDER NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTAGREEMENT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER COMPLETE THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH FOR ANY REASON OTHER THAN A DEFAULT BY SELLER HEREUNDER OR ANY EVENT EXPRESSLY PERMITTING TERMINATION UNDER THE PROVISIONS OF CLAUSES (b) PARAGRAPHS 5, 6, 10 OR 13, BUYER WILL BE IN DEFAULT AND (c) of SECTION 4.5 ABOVE BUYER AND SELLER AGREE THAT AS A RESULT OF SUCH DEFAULT SELLER WILL INCUR SUBSTANTIAL DAMAGES THAT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX. ACCORDINGLY, THE PARTIES, AFTER NEGOTIATION, HAVE AGREED THAT SELLER SHALL BE ENTITLED TO RETAIN SUCH AMOUNTS AS BUYER HAS DEPOSITED, OR HAS AGREED HEREIN TO DEPOSIT, INTO ESCROW PLUS ALL OF INTEREST EARNED FROM THE DEPOSIT TO THE EXTENT MADE HEREUNDERINVESTMENT THEREOF, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND DAMAGES, WHICH SUM THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. ESTIMATE OF THE DAMAGES SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON WILL SUFFER AS THE RESULT OF SUCH DEFAULT BY BUYER’S DEFAULT; PROVIDED, HOWEVER, THE FOREGOING THAT THIS PROVISION SHALL NOT BE DEEMED TO LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH ANY OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 ’S INDEMNITIES CONTAINED HEREIN. BY INITIALING BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN EACH PARTY SPECIFICALLY AFFIRMS THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH ACCURACY OF THE TERMS HEREOF OR (D) STATEMENTS MADE ABOVE AND THE ABILITY AND RIGHT FACT THAT SUCH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN AT THE TIME THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATIONWAS MADE. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTYUpon receipt of written notice from Seller that Buyer is in default and that the provisions of this subparagraph apply, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSEscrow Agent shall immediately pay over to Seller the Deposit, and any interest thereon, then in Escrow. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Buyer: Seller:
Appears in 1 contract
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER, SELLER’S SOLE REMEDY (EXCEPT AS PROVIDED BELOW) SHALL BE TERMINATED, BUYER SHALL COMPLY WITH TO TERMINATE THIS AGREEMENT AND RECEIVE THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE XXXXXXX MONEY AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE XXXXXXX MONEY WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS OF THIS SECTION 5.1 FOREGOING SHALL SURVIVE ANY TERMINATION NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION AND THE ATTORNEYS’ FEES OBLIGATIONS) OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT./s/ BN /s/ HS SELLER’S INITIALS BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase Agreement (Rexford Industrial Realty, Inc.)
Buyer’s Default. IF If this transaction shall not be closed because of default of Buyer, the Deposit shall be paid over to Seller as agreed and liquidated damages, it being acknowledged by Buyer and Seller that in such event Seller will suffer substantial damages but such damages are incapable of exact ascertainment. After payment to Seller of the Deposit, neither Seller nor Buyer shall have any further rights or obligations hereunder except that the parties shall remain obligated pursuant to the provisions hereof which survive termination. If subsequent to Closing Buyer shall fail to comply with its obligations contained herein which survive Closing, Seller, in addition to any rights and remedies provided herein, shall be entitled to any and all remedies available at law or in equity. SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND THAT THE CLOSING UNDER DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. SELLER AND BUYER FURTHER AGREE THAT THIS AGREEMENT FAILS SECTION 10.1 IS INTENDED TO OCCUR BY REASON AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER’S EXCLUSIVE REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL CONSUMMATE THE PROPERTY TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SELLER’S RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATIONRECOVER ITS REASONABLE ATTORNEYS’ FEES AND EXPENSES. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT._________________________ _________________________ Buyer Seller
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Retail Opportunity Investments Corp)
Buyer’s Default. AFTER THE EXPIRATION OF THE INVESTIGATION PERIOD, IF THE CLOSING UNDER DOES NOT OCCUR AS A RESULT OF BUYER’S DEFAULT HEREUNDER, INCLUDING BUYER’S FAILURE TO TIMELY DELIVER THE ADDITIONAL DEPOSIT, PROVIDED SELLER IS NOT IN DEFAULT HEREUNDER, SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT FAILS BY GIVING WRITTEN NOTICE THEREOF TO OCCUR BUYER, WHEREUPON THE DEPOSIT SHALL BE PAID TO SELLER AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH DEFAULT HEREUNDER BY REASON BUYER, AND NEITHER PARTY SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION TO THE OTHER HEREUNDER, EXCEPT FOR PROVISIONS OF A MATERIAL THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS PROVISION WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES PURSUANT TO SECTION 15.1 BELOW, NOR WAIVE OR AFFECT ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY STATE THAT THEY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, NOR LIMIT BUYER’S LIABILITY TO SELLER FOR ANY BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO ACCESS AGREEMENT. THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY PARTIES ACKNOWLEDGE AND AGREE THAT IT SELLER’S ACTUAL DAMAGES IN THE EVENT OF BUYER’S DEFAULT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT OR IMPRACTICABLE TO FIX OR ESTABLISH DETERMINE. AFTER NEGOTIATION, THE ACTUAL DAMAGE SUSTAINED BY PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER AS A RESULT OF WOULD INCUR IN SUCH DEFAULT BY BUYER, AND AGREE THAT EVENT. THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES UNDER THE CIRCUMSTANCES PROVIDED FOR HEREIN IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF SECTIONS 3275 OR 3369 OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSSECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE PROVISIONS ACCURACY OF THE STATEMENTS MADE ABOVE, THE REASONABLENESS OF THE AMOUNT OF LIQUIDATED DAMAGES AGREED UPON, AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENTLIQUIDATED DAMAGES PROVISION. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.INITIALS: /s/ Authorized Signatory /s/ Authorized Signatory Seller Buyer
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Buyer’s Default. IF IN THE CLOSING EVENT BUYER BREACHES OR FAILS TO PERFORM ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN SELLER CONDITION TO CLOSE SHALL, AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTITS SOLE REMEDY THEREFOR, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF RECEIVE THE DEPOSIT MADE PURSUANT TO THE EXTENT MADE HEREUNDERSECTION 2 HEREOF, INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON, AS LIQUIDATED DAMAGES AS ITS SOLE (AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER NOT AS A RESULT OF SUCH DEFAULT BY BUYERPENALTY) IN LIEU OF, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES AS FULL COMPENSATION FOR, ALL OTHER REMEDIES RIGHTS OR CLAIMS OF SELLER AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF DEFAULT. THEREUPON THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY ALL FURTHER OBLIGATIONS AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOINGLIABILITIES HEREUNDER, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY EXCEPT FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE CLOSING OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION REPRESENTS BOTH PARTIES’ EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES. NOTWITHSTANDING THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT FOREGOING, OR ANY OTHER PROVISION TO THE PROVISIONS OF SECTION 5.1 THEREOFCONTRARY, THIS AGREEMENT SECTION 10.1 SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS IN NO WAY LIMIT OR RESTRICT SELLER’S RECOVERY UNDER SECTION 5.1 IN THE SAME MANNER AS 5.2 ABOVE AND/OR SECTION 5.1 OF THE PARALLEL AGREEMENT.14.10 BELOW. /s/ WC Seller’s Initials /s/ CM Buyer’s Initials
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Buyer’s Default. IF FROM AND AFTER THE CLOSING UNDER EXPIRATION OF THE FEASIBILITY PERIOD, IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE TO A DEFAULT OF THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM THEN SELLER AND (II) THE OUTSIDE CLOSING DATESHALL, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER REMEDY THEREFOR, HAVE THE RIGHT TO TERMINATE THIS AGREEMENT, IN WHICH CASE IT SHALL BE ENTITLED TO RECEIVE THE DEPOSIT, INCLUDING ALL ACCRUED INTEREST THEREON, AS LIQUIDATED DAMAGES (AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER NOT AS A RESULT PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. UPON SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY BE RELIEVED OF ALL FURTHER OBLIGATIONS AND LIABILITIES HEREUNDER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. BUYER AND SELLER ACKNOWLEDGE THAT THE PROVISIONS DAMAGES TO SELLER RESULTING FROM BUYER'S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION 11.1 REPRESENTS BOTH PARTIES' EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES AND IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE. NOTHING HEREIN SHALL LIMIT SELLER'S REMEDIES WITH RESPECT TO ANY BREACH OF ANY COVENANT OF BUYER TO INDEMNIFY, DEFEND, PROTECT OR HOLD HARMLESS SELLER OR TO REIMBURSE SELLER FOR ANY SUMS OTHERWISE PAYABLE TO SELLER (INCLUDING ATTORNEYS' FEES AND COSTS), OR TO PROVIDE CERTAIN DOCUMENTS TO SELLER AFTER TERMINATION AS PROVIDED HEREIN, TO THE EXTENT SUCH COVENANT SURVIVES THE TERMINATION OF THIS SECTION 5.1 AGREEMENT OR THE CLOSING UNDER THE EXPRESS TERMS OF THIS AGREEMENT. BUYER AND SELLER SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO THE FOREGOING LIQUIDATED DAMAGES PROVISION BY INITIALING THIS PARAGRAPH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.APPROPRIATE SPACES PROVIDED BELOW: Buyer's Initials ________ Seller's Initials ___________
Appears in 1 contract
Samples: Purchase and Sale Agreement (Marvell Technology Group LTD)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE In the event Buyer defaults in its obligations to close the purchase of the Property, or in the event Buyer otherwise defaults hereunder prior to Closing, then (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(Ci) OR Seller shall receive the Exxxxxx Money as fixed and liquidated damages, this Agreement shall terminate in accordance with all applicable laws, and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement and (Dii) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTBuyer shall immediately direct the Title Company to pay the Exxxxxx Money to Seller. Seller shall have no other remedy for any pre-Closing default by Buyer, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDYincluding any right to damages. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT: (1) THE AMOUNT OF THE EXXXXXX MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO FIX OR ESTABLISH HAVE OCCURRED DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGE SUSTAINED DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) BUYER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE EXXXXXX MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE EXXXXXX MONEY SHALL BE AND DOES CONSTITUTE VALID LIQUIDATED DAMAGES. All of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, at law or in equity, in the event of a default by Buyer pursuant to Sections 6.2, 6.5, 8, 13.3, or 18.3, or pursuant to any covenant, agreement, indemnity, representation or warranty of Buyer that survives the Closing or the termination of this Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT SELLER OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF ITS OBLIGATIONS UNDER THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY SELL AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO TRANSFER THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE REFUSES TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION CONSENT TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH INSTRUCT RELEASE OF THE TERMS HEREOF OR EXXXXXX MONEY TO SELLER IF REQUIRED BY CLOSING AGENT (D) THE ABILITY AND RIGHT OF EACH A “BUYER’S ACTION”), SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BE RESTRICTED BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE FROM BRINGING AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM ANY TERMINATION IMPROPERLY FILED LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT ANY BUYER’S ACTION BUT ONLY TO THE PROVISIONS EXTENT THAT SELLER IS THE PREVAILING PARTY; AND THE AMOUNT OF SECTION 5.1 THEREOFANY SUCH FEES, COSTS AND EXPENSES AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. NOTHING IN THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE SHALL, HOWEVER, BE DEEMED TO LIMIT BUYER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF BUYER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR FOR ATTORNEYS’ FEES AND COSTS AS PROVIDED BELOW. NOTWITHSTANDING THE PARTIES SHALL APPLY FOREGOING, BUYER MAY FILE A LIS PENDENS TO THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTEXTENT NECESSARY TO PRESERVE A CLAIM FOR SPECIFIC PERFORMANCE.
Appears in 1 contract
Samples: General Assignment and Assumption Agreement (Investors Real Estate Trust)
Buyer’s Default. IF BUYER FAILS TO COMPLETE THE CLOSING UNDER PURCHASE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE DEFAULT OF A BUYER, SELLER CONDITION SHALL BE RELEASED FROM SELLER'S OBLIGATION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN SELL THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER PROPERTY TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDYDAMAGES. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE DEPOSIT, THE PAYMENT BY BUYER OF ALL ESCROW AND TITLE CANCELLATION CHARGES AND FEES, AND THE DELIVERY TO SELLER BY BUYER OF THE DEPOSIT TO SELLER DUE DILIGENCE MATERIALS IS A REASONABLE APPROXIMATION THEREOF. ACCORDINGLY, IN THE EVENT THAT BUYER BREACHES THIS AGREEMENT BY MATERIALLY DEFAULTING IN THE COMPLETION OF THE PURCHASE OF THE PROPERTY, THE DEPOSIT, THE PAYMENT BY BUYER OF ALL ESCROW AND TITLE CANCELLATION CHARGES AND FEES, AND THE DELIVERY TO SELLER HEREBY WAIVES BY BUYER OF THE DUE DILIGENCE MATERIALS SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF SELLER, AND SHALL BE PAID BY BUYER TO SELLER AS SELLER'S SOLE AND EXCLUSIVE REMEDY. SELLER AGREES TO WAIVE ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) BUYER'S OBLIGATIONS TO PAY TO SELLER ALL ATTORNEYS' FEES AND COSTS OF SELLER TO ENFORCE THE PROVISIONS OF THIS SECTION 20 OF THIS AGREEMENT5.1 AND/OR BUYER'S SURVIVING OBLIGATIONS, OR (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE BUYER'S SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT OF THE DEPOSIT, THE PAYMENT BY BUYER OF ALL ESCROW AND TITLE CANCELLATION CHARGES AND FEES, AND THE DELIVERY TO SELLER BY BUYER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER DUE DILIGENCE MATERIALS AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENTSELLER.
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Netreit, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT SHALL BE TERMINATEDBY REASON OF ANY DEFAULT OF BUYER, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) SELLER MAY TERMINATE THIS AGREEMENT AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RECEIVE OR RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD SHALL BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATIONDEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO BUYER'S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 ATTORNEYS' FEES PROVISION SET FORTH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.PARAGRAPH 18 BELOW. -------------------- -------------------- SELLER'S INITIALS BUYER'S INITIALS
Appears in 1 contract
Samples: Agreement of Purchase and Sale and Joint Escrow Instructions (Vans Inc)
Buyer’s Default. IF IN THE CLOSING EVENT THE SALE OF THE CONDOMINIUM IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS AGREEMENT FAILS ON THE PART OF BUYER, SELLER SHALL BE ENTITLED TO OCCUR BY REASON OF A MATERIAL BREACH RECEIVE AND RETAIN THE DEPOSITS MADE BY BUYER UNDER THIS AGREEMENT OR A FAILURE TOGETHER WITH ANY INTEREST EARNED THEREON AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A SELLER CONDITION DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO CLOSE DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE AMOUNT OF THE DEPOSITS MADE BY BUYER PURSUANT TO THE TERMS OF PARAGRAPH 1 ABOVE HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST BUYER (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATETHIS PARAGRAPH 7), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDEDEQUITY, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TRANSACTION DOES NOT CLOSE DUE TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER DEFAULT UNDER THIS AGREEMENT ON THE CLOSING DATE IN ACCORDANCE WITH PART OF BUYER. SUCH RECEIPT AND RETENTION OF THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION DEPOSITS BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSSECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. IT IS UNDERSTOOD AND AGREED, HOWEVER, THAT THIS LIQUIDATION OF DAMAGES APPLIES ONLY TO BUYER’S DEFAULT IN ITS OBLIGATION TO PURCHASE THE PROVISIONS CONDOMINIUM AND SHALL NOT BE CONSTRUED TO RESTRICT IN ANY WAY THE REMEDIES AVAILABLE TO SELLER UPON BUYER’S BREACH OF ITS OBLIGATION TO INDEMNIFY AND HOLD SELLER HARMLESS PURSUANT THE TERMS OF THIS SECTION 5.1 SHALL SURVIVE AGREEMENT OR BUYER’S BREACH OF ANY TERMINATION OF OBLIGATIONS UNDER THIS AGREEMENT. IN THE EVENT AGREEMENT WHICH ARE TO BE PERFORMED AFTER THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.DATE. Seller’s Initials Buyer’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR TRANSACTION HEREIN PROVIDED SHALL NOT CLOSE BY REASON OF A MATERIAL BREACH BY BUYER BUYER'S DEFAULT UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS SHALL DEFAULT IN ANY OTHER MATERIAL RESPECT, THEN SELLER SHALL HAVE, AS ITS EXCLUSIVE REMEDY, THE RIGHT TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, TERMINATE THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL THAT PORTION OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE REQUIRED DEPOSIT THEN HELD BY ESCROW HOLDER THE TITLE COMPANY AS LIQUIDATED DAMAGES IS NOT INTENDED DAMAGES, AND FOLLOWING SUCH TERMINATION NO PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITY TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED ANY OTHER PARTY HERETO EXCEPT WITH RESPECT TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE THOSE PROVISIONS OF THIS SECTION 5.1 SHALL AGREEMENT WHICH EXPRESSLY SURVIVE ANY THE TERMINATION OF THIS AGREEMENT. IN CONNECTION WITH THE EVENT FOREGOING, THE CLOSING DOES NOT OCCUR UNDER PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THAT THE PROPERTY WILL BY REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH OF BUYER UNDER THIS AGREEMENT AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 FAILURE OF THE PARALLEL AGREEMENTCONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S DEFAULT. IN NO EVENT SHALL BUYER BY LIABLE FOR LOST OR ANTICIPATED PROFITS OR ANY OTHER DAMAGES OTHER THAN THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION.
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Chelsea Property Group Inc)
Buyer’s Default. IF IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEMDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, PROVIDED, HOWEVER, THAT IN THE EVENT THE LOAN IS TO BE DEFEASED AND THERE IS A BREACH OF THIS AGREEMENT BY BUYER AFTER THE CLOSING DOCUMENTS DELIVERY DATE AND BEFORE THE CLOSING, IN ADDITION TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATEDXXXXXXX MONEY DEPOSIT, BUYER SHALL COMPLY ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET COSTS INCURRED BY SELLER IN CONNECTION WITH THE PROVISIONS DEFEASANCE OF CLAUSES SELLER’S CURRENT LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS (b$125,000.00) AND (c) of SECTION 4.5 ABOVE SUCH AMOUNT TOGETHER WITH THE XXXXXXX MONEY DEPOSIT SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO THE EXTENT MADE HEREUNDERESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS ITS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY THEREFOR. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 8.1 SHALL SURVIVE NOT APPLY TO ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.THIS
Appears in 1 contract
Samples: Agreement for Purchase and Sale (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. IF IN THE CLOSING UNDER EVENT THE PURCHASE AND SALE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT FAILS TO OCCUR BY REASON ARE NOT CONSUMMATED BECAUSE OF A MATERIAL BREACH BY DEFAULT OF BUYER UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, SELLER CONDITION TO CLOSE SHALL BE ENTITLED, AS SELLER’S SOLE REMEDY (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE THE LAST SENTENCE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATETHIS PARAGRAPH), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, TERMINATE THIS AGREEMENT SHALL BE TERMINATED, AND RECEIVE THE DEPOSIT THERETOFORE DEPOSITED BY BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE ESCROW HOLDER AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED RELEASED FROM ITS OBLIGATION TO RETAIN ALL OF SELL THE DEPOSIT PROPERTY (OR ANY PORTION THEREOF) TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDYBUYER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR AND EXTREMELY DIFFICULT TO FIX ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER’S DEFAULT OR ESTABLISH BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE ACTUAL DAMAGE SUSTAINED DEPOSIT THERETOFORE DEPOSITED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYERBUYER WITH ESCROW HOLDER WHICH SHALL BE THE FULL, AGREED AND AGREE LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY [WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369], BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER [PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677]. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO AND THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 SET FORTH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.PARAGRAPH 18 BELOW. SELLER’S INITIALS BUYER’S INITIALS
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Buyer’s Default. IF IN THE CLOSING EVENT BUYER BREACHES OR FAILS TO PERFORM ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A AGREEMENT, THEN SELLER CONDITION TO CLOSE SHALL, AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTITS SOLE REMEDY THEREFOR, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF RECEIVE THE DEPOSIT MADE PURSUANT TO THE EXTENT MADE HEREUNDERSECTION 2 HEREOF, INCLUDING ALL INTEREST EARNED AND ACCRUED THEREON, AS LIQUIDATED DAMAGES AS ITS SOLE (AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER NOT AS A RESULT OF SUCH DEFAULT BY BUYERPENALTY) IN LIEU OF, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES AS FULL COMPENSATION FOR, ALL OTHER REMEDIES RIGHTS OR CLAIMS OF SELLER AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF DEFAULT. THEREUPON THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER SHALL TERMINATE AND THE PARTIES SHALL BE RELIEVED OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY ALL FURTHER OBLIGATIONS AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOINGLIABILITIES HEREUNDER, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY EXCEPT FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT THOSE OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE CLOSING OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER RESULTING FROM BUYER’S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION REPRESENTS BOTH PARTIES’ EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES. NOTWITHSTANDING THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT FOREGOING, OR ANY OTHER PROVISION TO THE PROVISIONS OF SECTION 5.1 THEREOFCONTRARY, THIS AGREEMENT SECTION 10.1 SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS IN NO WAY LIMIT OR RESTRICT SELLER’S RECOVERY UNDER SECTION 5.1 IN THE SAME MANNER AS 5.2.2 ABOVE AND/OR SECTION 5.1 OF THE PARALLEL AGREEMENT.14.10 BELOW. RS Seller’s Initials LS Buyer’s Initials
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Buyer’s Default. IF THE CLOSING UNDER THIS SALE CONTEMPLATED BY THE AGREEMENT FAILS TO OCCUR BY REASON AND THIRD AMENDMENT IS NOT CONSUMMATED BECAUSE OF A MATERIAL BREACH DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL PURCHASE THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS THE AGREEMENT OR WRONGFUL TERMINATION AS AMENDED BY THE THIRD AMENDMENT, THEN: (A) THE AGREEMENT AND THIRD AMENDMENT SHALL TERMINATE; (B) THE DEPOSIT PLUS $250,000 OF THE SECOND ADDITIONAL DEPOSIT PREVIOUSLY PAID TO SELLER SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES; AND (C) SELLER AND BUYER SHALL HAVE NO FURTHER OBLIGATIONS TO EACH OTHER EXCEPT THOSE THAT SURVIVE THE TERMINATION OF THIS THE AGREEMENT AND THIRD AMENDMENT. BUYER AND SELLER ACKNOWLEDGE THAT THE DAMAGES TO SELLER IN THE EVENT OF A BREACH OF THE TERMS HEREOF AGREEMENT AND THIRD AMENDMENT BY BUYER WOULD BE DIFFICULT OR (D) IMPOSSIBLE TO DETERMINE, THAT THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER AMOUNT OF THE DEPOSIT THEN HELD PLUS $250,000 OF THE SECOND ADDITIONAL DEPOSIT PLUS INTEREST REPRESENTS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY ESCROW HOLDER SELLER IF THE TRANSACTION SHOULD FAIL TO CLOSE AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS LIQUIDATED DAMAGES IS NOT INTENDED OF THE DATE OF THE THIRD AMENDMENT AND UNDER THE CIRCUMSTANCES THAT SELLER AND BUYER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. BUYER AND SELLER AGREE THAT SELLER’S RIGHT TO RETAIN THE DEPOSIT PLUS $250,000 OF THE SECOND ADDITIONAL DEPOSIT TOGETHER WITH ANY INTEREST AND EARNINGS EARNED THEREON SHALL BE A FORFEITURE SELLER’S SOLE REMEDY, AT LAW AND IN EQUITY, FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT AND THIRD AMENDMENT. HOWEVER, NOTHING IN THIS SECTION SHALL (i) PREVENT OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO PRECLUDE SELLER’S RECOVERY OF REASONABLE ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO APPLICABLE LAWSSECTION 9.8 OF THE ORIGINAL AGREEMENT, OR (ii) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF BUYER’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THE ORIGINAL AGREEMENT. THE SELLER HEREBY WAIVES ANY RIGHT TO AN ACTION FOR SPECIFIC PERFORMANCE OF ANY PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.INITIALS RH SELLER JM BUYER
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Samples: Real Estate Purchase Agreement (TNP Strategic Retail Trust, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER WHICH IS NOT CURED WITHIN THREE (3) BUSINESS DAYS OF NOTICE OF DEFAULT, SELLER'S SOLE REMEDY (EXCEPT AS PROVIDED BELOW) SHALL BE TERMINATED, BUYER SHALL COMPLY WITH TO TERMINATE THIS AGREEMENT AND RETAIN THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE DEPOSIT AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATIONDEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER'S REMEDIES WITH RESPECT TO BUYER'S OBLIGATIONS UNDER PARAGRAPHS 14 AND 17 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENTAGREEMENT OR THE ATTORNEYS' FEES PROVISION SET FORTH IN PARAGRAPH 18 BELOW. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.SELLER'S INITIALS BUYER'S INITIALS
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Buyer’s Default. IF In the event of Buyer’s default or breach of this Agreement after Buyer has delivered the Feasibility Approval Notice where such default or breach is not cured by Buyer within five (5) days of Buyer’s receipt from Seller of written notice of such default or breach, the portion of the Deposit which is required to have been released to Seller on or prior to the date of such default (the “Liquidated Damages Amount”) shall constitute liquidated damages as follows: BY PLACING THEIR INITIALS HERE: BUYER X.X. AND SELLER X.X. EACH AGREE THAT IN THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON EVENT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE, IN THE EVENT OF SUCH A MATERIAL DEFAULT OR BREACH BY BUYER UNDER THIS AGREEMENT BUYER, WHICH DEFAULT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT BREACH IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION CURED WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING AFTER WRITTEN NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF GIVEN BY SELLER TO BUYER AND ESCROW HOLDER(WITH SUCH “MATERIAL DEFAULT” IN THIS PARAGRAPH TO INCLUDE ANY FAILURE OF BUYER TO CLOSE ON THE CLOSING DATE BECAUSE OF ANY BREACH OR DEFAULT OF BUYER), THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AMOUNT SHALL SERVE AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/DAMAGES FOR SUCH BREACH OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT AS A REASONABLE ESTIMATE OF THE DEPOSIT DAMAGES TO SELLER, INCLUDING COSTS OF NEGOTIATING AND DRAFTING THIS AGREEMENT, COSTS OF COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER, OPPORTUNITY COSTS IN KEEPING THE PROPERTY OUT OF THE MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. RETENTION OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A MATERIAL DEFAULT OR BREACH BY BUYER, AND SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, INCLUDING WITHOUT LIMITATION, SPECIFIC PERFORMANCE (BUT EXCLUDING, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE ANY RECOVERY FROM BUYER AVAILABLE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS SELLER UNDER SECTION 15 PARAGRAPHS 3.4 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION8.14 HEREOF). THE PAYMENT TO SELLER AND RETENTION OF THE DEPOSIT THEN HELD BY ESCROW HOLDER SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF THIS CALIFORNIA CIVIL CODE SECTION 5.1 SHALL SURVIVE 3389. UPON ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOFSUCH BREACH OR DEFAULT BY BUYER HEREUNDER, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE PARTIES SHALL APPLY OTHER, EXCEPT FOR THE PROVISIONS RIGHT OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.SELLER TO RETAIN SUCH LIQUIDATED DAMAGES
Appears in 1 contract
Samples: Agreement for Purchase and Sale (Aviza Technology, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS SALE IS NOT CONSUMMATED DUE TO OCCUR BY REASON OF A MATERIAL BREACH ANY DEFAULT BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER LEGAL AND SELLER HEREBY ACKNOWLEDGE AND AGREE EQUITABLE REMEDY FOR BUYER’S DEFAULT, SHALL RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES, THE PARTIES HAVING AGREED THAT IT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER’S DEFAULT, WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT OR IMPRACTICABLE TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOFDETERMINE. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVERAFTER NEGOTIATION, THE FOREGOING SHALL NOT LIMIT (A) PARTIES HAVE AGREED THAT, CONSIDERING ALL THE PROVISIONS OF SECTION 20 CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THE FOREGOING SHALL BE DEEMED TO BUYER'S BREACH BE SELLER’S UNCONDITIONAL AND IRREVOCABLE ELECTION OF BUYER'S OBLIGATIONS A REMEDY FOR A DEFAULT BY BUYER UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR INCLUDING WITHOUT LIMITATION, SELLER’S RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT FILE AN ACTION FOR SPECIFIC PERFORMANCE, WHICH RIGHT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSHEREBY WAIVES. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Seller’s Initials Buyer’s Initials
Appears in 1 contract
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE In the event Buyer defaults in its obligations to close the purchase of the Property, then (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(Ci) OR Seller shall receive the Exxxxxx Money as fixed and liquidated damages, this Agreement shall terminate, and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement and (Dii) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULTBuyer shall immediately direct the Title Company to pay the Exxxxxx Money to Seller. Seller shall have no other remedy for any pre-Closing default by Buyer, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDYincluding any right to damages. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT: (1) THE AMOUNT OF THE EXXXXXX MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO FIX OR ESTABLISH HAVE OCCURRED DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGE SUSTAINED DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT BY BUYER, OF BUYER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND AGREE THAT IMPRACTICAL TO DETERMINE; (3) BUYER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE PAYMENT AMOUNT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY EXXXXXX MONEY IN THE EVENT THAT FOLLOWING ANY TERMINATION THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF BUYER UNDER THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO ; AND (4) THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH AMOUNT OF THE TERMS HEREOF OR (D) THE ABILITY EXXXXXX MONEY SHALL BE AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONSDOES CONSTITUTE VALID LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOINGAll of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTYat law or in equity, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOFin the event of a default by Buyer pursuant to Sections 6.2, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT6.5, 8, 12.3, or 17.3, or pursuant to any covenant, agreement, indemnity, representation or warranty of Buyer set forth in this Agreement that expressly survives the Closing or the termination of this Agreement.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Property (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. IF IN THE EVENT BUYER FAILS, WITHOUT LEGAL EXCUSE, TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THE MATERIAL TERMS OF THIS AGREEMENT, ALL AMOUNTS OF XXXXXXX MONEY PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY BUYER SHALL BE FORFEITED TO SELLER AS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO SELLER FOR SUCH FAILURE. SELLER SHALL HAVE NO OTHER REMEDY IN THE EVENT OF BUYER'S BREACH OF THIS AGREEMENT PRIOR TO THE CLOSING AND SELLER HEREBY WAIVES ANY RIGHTS IT MAY OTHERWISE HAVE TO SEEK OTHER REMEDIES. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF DAMAGES TO BE SUFFERED BY SELLER IN THE EVENT SELLER IS IN COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER PURCHASE THE PROPERTY DUE TO BUYER'S BREACH OF THIS AGREEMENT. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES SELLER SHALL SUSTAIN AS A RESULT OF SUCH A BREACH WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE PARTIES HEREBY AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF THE BUYER'S XXXXXXX MONEY DEPOSIT ARE AND WILL BE REASONABLE, PROVIDED, HOWEVER, THAT IN THE EVENT OF A BREACH OF THIS AGREEMENT BY BUYER AFTER THE CLOSING DOCUMENTS DELIVERY DATE AND BEFORE THE CLOSING, IN ADDITION TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATEDXXXXXXX MONEY DEPOSIT, BUYER SHALL COMPLY ALSO PAY SELLER AN AMOUNT EQUAL TO THE THIRD PARTY OUT OF POCKET COSTS INCURRED BY SELLER IN CONNECTION WITH THE PROVISIONS DEFEASANCE OF CLAUSES SELLER’S CURRENT LOAN UP TO A MAXIMUM AGGREGATE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS (b$125,000.00) AND (c) of SECTION 4.5 ABOVE SUCH AMOUNT TOGETHER WITH THE XXXXXXX MONEY DEPOSIT SHALL BE A REASONABLE AMOUNT OF LIQUIDATED DAMAGES, AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT AND SHALL RECEIVE SUCH LIQUIDATED DAMAGES WITHOUT ADDITIONAL INSTRUCTIONS TO THE EXTENT MADE HEREUNDERESCROW AGENT, AND BUYER SHALL HAVE NO ADDITIONAL LIABILITY WHATSOEVER. THIS SUM SHALL BE PAID AND RECEIVED AS LIQUIDATED DAMAGES AND NOT AS ITS A PENALTY. THE PARTIES HERETO AGREE THAT THE SUM STATED AS LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF BUYER'S FAILURE TO PURCHASE THE PROPERTY AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 8.1 AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY THEREFOR. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 8.1 SHALL SURVIVE NOT APPLY TO ANY TERMINATION OF INDEMNITY OR ATTORNEYS' FEE PROVISIONS UNDER THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.Buyer's Initials /s/ DW Seller's Initials /s/ GKH
Appears in 1 contract
Samples: Agreement for Purchase and Sale (KBS Legacy Partners Apartment REIT, Inc.)
Buyer’s Default. IF THE CLOSING UNDER THIS AGREEMENT FAILS TO OCCUR BY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM SELLER AND (II) THE OUTSIDE CLOSING DATE, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR COMPLETE THE PURCHASE PRICE ON OF THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER (BEYOND ANY APPLICABLE NOTICE AND CURE PERIODS). SELLER’S SOLE REMEDY (EXCEPT AS PROVIDED BELOW) SHALL BE TERMINATED, BUYER SHALL COMPLY WITH TO TERMINATE THIS AGREEMENT AND RECEIVE THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE DEPOSIT AS LIQUIDATED DAMAGES AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER RELEASED FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER. BUYER ON AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE CLOSING DATE DAMAGES WHICH SELLER MAY SUFFER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE TERMS HEREOF OR (D) PROPERTY AS HEREIN PROVIDED. BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE ABILITY AND RIGHT OF NET DETRIMENT THAT SELLER TO ENFORCE WOULD SUFFER IN THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY EVENT OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION’S DEFAULT OR BREACH HEREUNDER IS AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AS A FORFEITURE OR PENALTYPENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE PROVISIONS FOREGOING SHALL NOT LIMIT SELLER’S REMEDIES WITH RESPECT TO BUYER’S EXPRESS OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, ITS INDEMNIFICATION OBLIGATIONS) UNDER PARAGRAPHS 14 AND 17 OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS SECTION 5.1 ATTORNEYS’ FEES PROVISION SET FORTH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.PARAGRAPH 18 BELOW. POM TR SELLER’S INITIALS BUYER’S INITIALS
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Kilroy Realty Corp)
Buyer’s Default. IF IN THE CLOSING EVENT BUYER BREACHES OR FAILS TO PERFORM ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT FAILS TO OCCUR BY FOR ANY REASON OF A MATERIAL BREACH BY BUYER UNDER THIS AGREEMENT OR A FAILURE OF A SELLER CONDITION TO CLOSE AS PROVIDED IN SECTION 4.3.2 ABOVE (OTHER THAN A SELLER'S DEFAULT OR THE FAILURE OF ANY CONDITION SET FORTH IN SUBSECTIONS 4.3.2(C) OR (D) THAT IS NOT CAUSED BY PRECEDENT TO BUYER) (AND BUYER DOES NOT CURE SUCH MATERIAL DEFAULT'S OBLIGATION TO CLOSE UNDER SECTION 7.1, BREACH OR FAILURE OF CONDITION WITHIN THE EARLIER TO OCCUR OF (I) FIVE (5) DAYS FOLLOWING NOTICE THEREOF FROM THEN SELLER AND (II) THE OUTSIDE CLOSING DATESHALL, EXCEPT NO NOTICE OR CURE PERIOD SHALL APPLY IF BUYER FAILS TO DELIVER THE CLOSING DOCUMENTS TO WHICH IT IS A PARTY OR THE PURCHASE PRICE ON THE SPECIFIED CLOSING DATE), AT THE WRITTEN ELECTION OF SELLER TO BUYER AND ESCROW HOLDER, THIS AGREEMENT SHALL BE TERMINATED, BUYER SHALL COMPLY WITH THE PROVISIONS OF CLAUSES (b) AND (c) of SECTION 4.5 ABOVE AND SELLER SHALL BE ENTITLED TO RETAIN ALL OF THE DEPOSIT TO THE EXTENT MADE HEREUNDER, AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. BUYER REMEDY THEREFOR, HAVE THE RIGHT TO TERMINATE THIS AGREEMENT, IN WHICH CASE IT SHALL BE ENTITLED TO RECEIVE THE DEPOSIT, INCLUDING ALL ACCRUED INTEREST THEREON, AS LIQUIDATED DAMAGES (AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER NOT AS A RESULT PENALTY) IN LIEU OF, AND AS FULL COMPENSATION FOR, ALL OTHER RIGHTS OR CLAIMS OF SELLER AGAINST BUYER BY REASON OF SUCH DEFAULT. UPON SUCH DEFAULT BY BUYER, AND AGREE THAT THE PAYMENT OF THE DEPOSIT TO SELLER IS A REASONABLE APPROXIMATION THEREOF. SELLER HEREBY WAIVES ALL OTHER REMEDIES AGAINST BUYER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY BUYER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT (A) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT, (B) INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF BUYER'S OBLIGATIONS UNDER SECTION 15 OR SECTION 19 BELOW, (C) SELLER'S RIGHT TO PURSUE ANY AND ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF THIS AGREEMENT, BUYER OR ANY AFFILIATE OR REPRESENTATIVE THEREOF ASSERTS ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY, OTHER THAN A SELLER BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO BUYER ON THE CLOSING DATE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR WRONGFUL TERMINATION BY SELLER OF THIS AGREEMENT IN BREACH OF THE TERMS HEREOF OR (D) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE SURVIVING OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION SHALL NOT LIQUIDATE OR LIMIT BUYER'S LIABILITY FOR ANY OF BUYER'S INDEMNITIES SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE TERMINATION. THE PAYMENT TO SELLER OF THE DEPOSIT THEN HELD BY ESCROW HOLDER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO APPLICABLE LAWS. THE PROVISIONS OF THIS SECTION 5.1 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.1 THEREOF, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY BE RELIEVED OF ALL FURTHER OBLIGATIONS AND LIABILITIES HEREUNDER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. BUYER AND SELLER ACKNOWLEDGE THAT THE PROVISIONS DAMAGES TO SELLER RESULTING FROM BUYER'S BREACH WOULD BE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY ACCURACY, AND THAT THE LIQUIDATED DAMAGE AMOUNT SET FORTH IN THIS SECTION 11.1 REPRESENTS BOTH PARTIES' EFFORTS TO APPROXIMATE SUCH POTENTIAL DAMAGES. NOTHING HEREIN SHALL LIMIT SELLER'S REMEDIES WITH RESPECT TO ANY BREACH OF ANY COVENANT OF BUYER TO INDEMNIFY, DEFEND, PROTECT OR HOLD HARMLESS SELLER OR TO REIMBURSE SELLER FOR ANY SUMS OTHERWISE PAYABLE TO SELLER (INCLUDING ATTORNEYS' FEES AND COSTS), TO THE EXTENT SUCH COVENANT SURVIVES TERMINATION OF THE CLOSING UNDER THE EXPRESS TERMS OF THIS SECTION 5.1 AGREEMENT. BUYER AND SELLER SPECIFICALLY ACKNOWLEDGE THEIR AGREEMENT TO THE FOREGOING LIQUIDATED DAMAGES PROVISION BY INITIALING THIS PARAGRAPH IN THE SAME MANNER AS SECTION 5.1 OF THE PARALLEL AGREEMENT.APPROPRIATE SPACES PROVIDED BELOW: Buyer's Initials: /s/ JSG Seller's Initials: /s/ NDG
Appears in 1 contract
