Common use of Buyer’s Failure Clause in Contracts

Buyer’s Failure. SELLER AND BUYER ACKNOWLEDGE THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE CLOSING SHOULD FAIL TO OCCUR DUE TO A DEFAULT BY BUYER UNDER THIS AGREEMENT. WITH THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE SIGNING OF THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE EXTENT OF DAMAGES TO SELLER IN THE EVENT THE CLOSING FAILS TO OCCUR DUE TO BUYER’S DEFAULT. THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES IS THE AMOUNT OF THE XXXXXXX MONEY. ACCORDINGLY, IF THE CLOSING FAILS TO OCCUR DUE TO ANY DEFAULT BY BUYER, SELLER SHALL BE ENTITLED TO RETAIN THE XXXXXXX MONEY AS SELLER’S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT IN ANY MANNER SELLER’S RIGHT TO RECOVERY OF ANY AMOUNT AVAILABLE UNDER APPLICABLE LAW UNDER INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT, OR FOR BREACHES OF THIS AGREEMENT OTHER THAN BUYER’S FAILURE OR REFUSAL TO PURCHASE THE PROPERTY. Initials of Seller Initials of Buyer

Buyer’s Failure. IF BUYER FAILS TO PERFORM ITS OBLIGATIONS TO PURCHASE THE PROPERTY PURSUANT TO THIS AGREEMENT FOR ANY REASON OTHER THAN SELLER’S PRIOR UNCURED DEFAULT HEREUNDER, THEN ESCROW COMPANY SHALL DELIVER THE DEPOSIT TO SELLER, OR IF IN SELLER’S POSSESSION, SELLER AND BUYER ACKNOWLEDGE THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE CLOSING SHOULD FAIL TO OCCUR DUE TO A DEFAULT BY BUYER UNDER THIS AGREEMENT. WITH THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLESHALL RETAIN, AS OF THE SIGNING OF FULL COMPENSATION AND AS LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE WITHOUT THE NECESSITY OF CERTAINTY THE EXTENT OF DAMAGES TO SELLER IN THE EVENT THE CLOSING FAILS TO OCCUR DUE GIVING NOTICE TO BUYER’S DEFAULT. THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES IS THE AMOUNT OF THE XXXXXXX MONEY. ACCORDINGLY, IF THE CLOSING FAILS TO OCCUR DUE TO ANY DEFAULT BY WITHOUT FURTHER INSTRUCTIONS FROM BUYER, AND NOTWITHSTANDING CONFLICTING INSTRUCTIONS FROM BUYER OR CONTRARY INSTRUCTIONS CONTAINED IN ESCROW COMPANY’S GENERAL PROVISIONS. SELLER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND RECOVER AND RETAIN THE XXXXXXX MONEY AS DEPOSIT PLUS ALL COSTS OF ENFORCING AND DEFENDING SELLER’S SOLE RIGHTS UNDER THIS SECTION AS LIQUIDATED DAMAGES AND EXCLUSIVE REMEDY NOT AS A PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST BUYER HEREUNDER. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IN THE EVENT OF A DEFAULT OR BREACH BY BUYER IN THE PERFORMANCE OF BUYER’S OBLIGATIONS HEREUNDER, PRIOR TO CLOSING, SELLER’S DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO DETERMINE, THAT THE DEPOSIT IS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO BE CONSUMMATED, AND THUS SUCH DEFAULTESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT. NOTHING HEREIN CONTAINED, HOWEVER, SHALL BE DEEMED TO IN ANY WAY SATISFY, DISCHARGE, OR TERMINATE BUYER’S AGREEMENTS HEREIN TO INDEMNIFY SELLER ENTITIES AND THE PROPERTY AND TO HOLD SELLER ENTITIES AND THE PROPERTY HARMLESS, AS SPECIFICALLY STATED IN THIS AGREEMENT, AND SELLER’S RIGHTS AND REMEDIES ARISING OUT OF SUCH INDEMNITY AND HOLD HARMLESS AGREEMENTS SHALL SURVIVE AND SHALL BE IN ADDITION TO THIS LIQUIDATED DAMAGES PROVISION. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION SHALL LIMIT IN ANY MANNER AGREEMENT, IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, DISPUTES SELLER’S RIGHT TO RECOVERY RECEIVE OR RETAIN THE DEPOSIT, AND/OR RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL AND TRANSFER THE PROPERTY (EACH, A “BUYER’S ACTION”), SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION FROM BRINGING AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM THAT LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS OR EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF BUYER’S ACTION SHOULD SELLER BE THE PREVAILING PARTY IN THAT ACTION; AND THE AMOUNT OF ANY AMOUNT AVAILABLE UNDER APPLICABLE LAW UNDER INDEMNIFICATION PROVISIONS SUCH FEES, COSTS OR EXPENSES AWARDED TO SELLER SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH IN THIS AGREEMENT, OR FOR BREACHES OF THIS AGREEMENT OTHER THAN HEREIN. BUYER’S FAILURE OR REFUSAL TO PURCHASE THE PROPERTY. Initials of Seller Initials of BuyerINITIALS: _________________________ SELLER’S INITIALS: _________________________

Buyer’s Failure. SELLER AND BUYER ACKNOWLEDGE THAT SUBSTANTIAL --------------- DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE CLOSING SHOULD FAIL TO OCCUR DUE TO A DEFAULT BY BUYER UNDER THIS AGREEMENT. WITH THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE SIGNING OF THIS AGREEMENT, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY THE EXTENT OF DAMAGES TO SELLER IN THE EVENT THE CLOSING FAILS TO OCCUR DUE TO BUYER’S 'S DEFAULT. THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE OF SUCH DAMAGES IS THE AMOUNT OF THE XXXXXXX MONEYDEPOSIT. ACCORDINGLY, IF THE CLOSING FAILS TO OCCUR DUE TO ANY DEFAULT BY BUYER, SELLER SHALL BE ENTITLED TO RETAIN THE XXXXXXX MONEY DEPOSIT (BUT NOT ANY ACCRUED INTEREST THEREON) AS SELLER’S 'S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT IN ANY MANNER SELLER’S 'S RIGHT TO RECOVERY OF UNDER ANY AMOUNT AVAILABLE UNDER APPLICABLE LAW UNDER INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT, OR FOR BREACHES OF THIS AGREEMENT OR RECOVERY OF ATTORNEYS FEES AND OTHER THAN COSTS UNDER THIS AGREEMENT. ________________ _________________ BUYER’S FAILURE OR REFUSAL TO PURCHASE THE PROPERTY. 's Initials of Seller Initials of BuyerSELLER's Initials

Buyer’s Failure. SELLER AND BUYER ACKNOWLEDGE THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY SELLER IN THE EVENT THAT THE CLOSING SHOULD FAIL TO OCCUR IF ESCROW DOES NOT CLOSE DUE TO A DEFAULT BY BUYER UNDER THIS AGREEMENT. WITH THE UNPREDICTABLE STATE OF THE ECONOMY AND OF GOVERNMENTAL REGULATIONS, THE FLUCTUATING MARKET FOR REAL ESTATE AND REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS WHICH DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, THE PARTIES REALIZE THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, AS OF THE SIGNING BUYER'S BREACH OF THIS AGREEMENT, THEN SELLER SHALL RETAIN ALL SUMS THEN HELD BY ESCROW HOLDER PURSUANT TO ASCERTAIN SECTION 4(a) AND/OR SECTION 4(b) ABOVE, TOGETHER WITH ANY DEGREE INTEREST EARNED THEREON, AS LIQUIDATED DAMAGES, WHICH AMOUNT IS THE BEST ESTIMATE BY THE PARTIES OF CERTAINTY THE EXTENT DAMAGES SELLER WOULD SUFFER FROM SUCH BREACH, IT BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE AND IMPRACTICABLE, TO FIX THE EXACT AMOUNT OF DAMAGES DAMAGE WHICH WOULD BE INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER. THEREUPON ESCROW SHALL BE CANCELED AS PROVIDED ABOVE, ALL INSTRUMENTS SHALL BE RETURNED TO THE RESPECTIVE PARTIES WHO DEPOSITED SAME, THE PARTIES SHALL COMPLY WITH SECTION 12 BELOW AND BUYER SHALL PAY ALL TITLE AND ESCROW CANCELLATION CHARGES. IN ADDITION, ESCROW HOLDER IS HEREBY IRREVOCABLY INSTRUCTED BY BUYER AND SELLER TO DISBURSE TO SELLER ALL SUCH SUMS THEN HELD BY ESCROW HOLDER PURSUANT TO SECTION 4(a) AND/OR SECTION 4(b) ABOVE AS LIQUIDATED DAMAGES FOR BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE LAND AS PROVIDED HEREINABOVE, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671 ET. SEQ. BUYER AGREES THAT THE LIQUIDATED DAMAGES AS SET FORTH IN THIS PARAGRAPH RELATE TO DAMAGES WHICH SELLER IS ENTITLED TO RECEIVE AS A RESULT OF BUYER'S FAILURE TO CLOSE ESCROW, BUT DO NOT LIMIT SELLER'S RIGHTS IN THE EVENT OF BREACHES BY BUYER PURSUANT TO THE INDEMNITY OBLIGATIONS OR THE POST-CLOSING FAILS TO OCCUR DUE TO BUYER’S DEFAULTOBLIGATIONS OF BUYER SET FORTH HEREIN. THE PARTIES HEREBY AGREE THAT A REASONABLE ESTIMATE PAYMENT TO SELLER OF SUCH LIQUIDATED DAMAGES IS THE AMOUNT OF THE XXXXXXX MONEY. ACCORDINGLY, IF THE CLOSING FAILS TO OCCUR DUE TO ANY DEFAULT BY BUYER, SELLER SHALL BE ENTITLED TO RETAIN THE XXXXXXX MONEY AS CONSTITUTE SELLER’S 'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER FOR BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE LAND AS PROVIDED HEREINABOVE, ALL OTHER REMEDIES FOR SUCH DEFAULT. NOTHING CONTAINED IN THIS FAILURE BEING EXPRESSLY WAIVED BY SELLER, INCLUDING BUT NOT LIMITED TO ALL RIGHTS SELLER MAY HAVE PURSUANT TO CALIFORNIA CIVIL CODE SECTION SHALL LIMIT IN ANY MANNER SELLER’S RIGHT 3389 TO RECOVERY OF ANY AMOUNT AVAILABLE UNDER APPLICABLE LAW UNDER INDEMNIFICATION PROVISIONS SET FORTH IN SPECIFICALLY ENFORCE THIS AGREEMENT, OR FOR BREACHES OF THIS AGREEMENT OTHER THAN BUYER’S FAILURE OR REFUSAL TO PURCHASE THE PROPERTY. Buyer's Initials of Seller Seller's Initials of Buyer/s/ PS /s/ DA --------------------- ----------------------