Default by Buyer. IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Apartment Investment & Management Co)
Default by Buyer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, IF BUYER HAS NOT TERMINATED THIS AGREEMENT IN ACCORDANCE WITH THE TERMS SET FORTH IN THIS AGREEMENT AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. IF THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT SALE OF THE DEFAULT OF PROPERTY TO BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDERIS NOT CONSUMMATED OTHER THAN SOLELY AND DIRECTLY DUE TO A SELLER DEFAULT, THEN SELLER, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED BUT SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT, MAY TERMINATE THIS AGREEMENT AND THE DEPOSIT SHALL BE DELIVERED TO AND RETAINED BY SELLER AS FULL COMPENSATION AND LIQUIDATED DAMAGES UNDER THIS AGREEMENT FOR SUCH FAILURE TO CLOSE. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSES IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY MAY BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY BUYER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF BUYER'S ’S DEFAULT, THEN (I) AND THAT THE DEPOSIT REPRESENTS THE PARTIES’ BEST CURRENT ESTIMATE OF SUCH DETRIMENT. THIS SECTION 9.2 SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. NOTHING CONTAINED IN THIS SECTION 9.2 SHALL LIMIT OR IMPAIR ANY OF SELLER’S RIGHTS AND REMEDIES AGAINST BUYER UNDER THE LEASE OR FOR ANY OTHER PRE-CLOSING DEFAULT BY BUYER UNDER THIS AGREEMENT (INCLUDING BUYER’S DUE DILIGENCE INDEMNITY UNDER SECTION 4.4, THE INDEMNITY UNDER SECTION 10.1 OR BREACH OF CONFIDENTIALITY UNDER SECTION 10.21 BELOW). [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE RIGHTS SECURITIES AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER EXCHANGE COMMISSION PURSUANT TO SELLER'S INSTRUCTIONSRULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERAS AMENDED.
Appears in 1 contract
Default by Buyer. IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY DOES NOT OCCUR AS A RESULT HEREIN PROVIDED BY REASON OF THE ANY DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTBUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THE PARTIES THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW BUYER DEFAULTS AND THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT COMPLETE THE PURCHASE OF THE DEFAULT OF BUYER IN PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDERDEPOSIT, SELLERTOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED TO LIQUIDATED DAMAGES IN THE SAID AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BE DISBURSED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSE OF ESCROW NOT OCCURRING, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN RESPECT OF BUYER’S BREACH OF THIS AGREEMENT BEING HEREIN EXPRESSLY WAIVED BY SELLER. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER’S INDEMNITY AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERCONFIDENTIALITY OBLIGATIONS.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (City Office REIT, Inc.)
Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE DEFAULT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIXASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE PARTIES THEREFORE AGREE THAT POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THAT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND THIS TRANSACTION FAIL WISHES TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE PERFORMANCE EVENT OF ITS OBLIGATIONS HEREUNDER, A BUYER DEFAULT. BUYER AND SELLER, AS SELLER'S SOLE AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN AGREE THAT THE AMOUNT OF THE DEPOSIT (EXCLUSIVE REPRESENTS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON). THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULTHAVING BEEN SATISFIED OR WAIVED), THEN (I) TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL THE RIGHTS ESCROW AND RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES AND ESCROW HOLDER SHALL IMMEDIATELY DELIVER THE DEPOSIT TO SELLER. SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY. NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERSECTION 14 HEREOF.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Default by Buyer. IN IF THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL HEREIN PROVIDED AS TO ANY PROPERTY OR PROPERTIES SHALL NOT CLOSE SOLELY AS A RESULT ON ACCOUNT OF THE BUYER’S DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTAGREEMENT OR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES OF BUYER, AND IF BUYER FAILS TO CURE SUCH DEFAULT OR BREACH WITHIN FIVE (5) DAYS AFTER WRITTEN NOTICE FROM SELLERS, THEN THE APPLICABLE SHARE OF THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLERS AS FULL COMPENSATION AND SELLER AGREE LIQUIDATED DAMAGES UNDER THIS AGREEMENT FOR SUCH FAILURE TO CLOSE (AND IF THE AGREEMENT SHALL NOT BE CLOSED IN ITS ENTIRETY, THEN THE ENTIRE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLERS). IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER'S ACTUAL DAMAGES WOULD SELLERS WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTIES WILL BE IMPRACTICABLE OR REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO FIX. ASCERTAIN THE PARTIES THEREFORE AGREE THAT IN EXTENT OF DETRIMENT TO SELLER CAUSED BY THE EVENT THAT ESCROW BREACH BY BUYER UNDER THIS AGREEMENT AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT THE FAILURE OF THE DEFAULT CONSUMMATION OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY COMPENSATION SELLERS SHOULD RECEIVE AS A RESULT OF BUYER'S ’S BREACH OR DEFAULT. IN THE EVENT THE SALE OF THE PROPERTIES SHALL NOT BE CONSUMMATED ON ACCOUNT OF BUYER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT (IOR THE APPLICABLE SHARE THEREOF) SHALL BE SELLERS’ SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS BY REASON OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATESUCH DEFAULT, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS SUBJECT TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE PROVISIONS OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERTHIS AGREEMENT THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Default by Buyer. IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTIn the event Buyer has elected to proceed with the transaction set forth herein beyond the Inspection Period, in the event of a breach of Buyer’s obligations herein, without default of Seller, Seller’s sole legal and equitable remedy shall be to terminate this Agreement and retain the Deposit as AGREED LIQUIDATED DAMAGES for such breach, and upon payment in full to Seller of the Deposit, the parties hereto shall have no further rights, claims, liabilities or obligations under this Agreement (except the indemnity and insurance obligations of Buyer, for which Seller, in the event of a breach thereof by Buyer, shall have available to it all remedies at law or in equity). BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX. ESTIMATE THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY SUFFERED BY SELLER AS A RESULT OF BUYER'S DEFAULT’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, THEN (I) AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND AGREEMENT, THE RIGHTS AND OBLIGATIONS LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE. THEREFORE, BUYER AND SELLER HEREUNDER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND PURCHASE OF THE PROPERTY IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS AN AMOUNT EQUAL TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE E▇▇▇▇▇▇ MONEY DEPOSIT (EXCLUSIVE OF WHICH INCLUDES ANY ACCRUED INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL ). SAID AMOUNT WILL BE THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED BUT IS INTENDED TO BUYER.CONSTITUTE LIQUIDATED DAMAGES TO SELLER. Buyer’s Initials: /s/ CM Seller’s Initials: /s/ WCO
Appears in 1 contract
Sources: Purchase Agreement (Owens Mortgage Investment Fund a Calif LTD Partnership)
Default by Buyer. IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY DOES NOT OCCUR AS A RESULT HEREIN PROVIDED BY REASON OF THE ANY MATERIAL DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTBUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THE PARTIES THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW BUYER DEFAULTS AND THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT COMPLETE THE PURCHASE OF THE DEFAULT OF BUYER IN PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDERDEPOSIT, SELLERTOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED TO LIQUIDATED DAMAGES IN THE SAID AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BE DISBURSED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A MATERIAL BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSE OF ESCROW NOT OCCURRING, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN RESPECT OF BUYER'S BREACH OF THIS AGREEMENT BEING HEREIN EXPRESSLY WAIVED BY SELLER. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT SELLER'S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER'S INDEMNITY AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGESCONFIDENTIALITY OBLIGATIONS. 753659.08/WLA 374981-00001/4-20-16/pjr/pjr -21- Agreement of Purchase and Sale [20333 South Normandie Avenue] [Bridge Acquisition, IF ANY, SHALL BE CHARGED TO LLC] _________________________ ________________________ SELLER'S INITIALS BUYER.'S INITIALS
Appears in 1 contract
Sources: Agreement of Purchase and Sale
Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE DEFAULT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIXASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE PARTIES THEREFORE AGREE THAT POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THAT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND THIS TRANSACTION FAIL WISHES TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE PERFORMANCE EVENT OF ITS OBLIGATIONS HEREUNDER, A BUYER DEFAULT. BUYER AND SELLER, AS SELLER'S SOLE AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN AGREE THAT THE AMOUNT OF THE DEPOSIT (EXCLUSIVE REPRESENTS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON). THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO CLOSE SOLELY AS OCCUR DUE TO A RESULT OF BUYER'S BUYER DEFAULT, THEN (I) TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL THE RIGHTS ESCROW AND RECEIVE (OR RETAIN, IF SELLER ALREADY HOLDS THE DEPOSIT) THE DEPOSIT AS LIQUIDATED DAMAGES AND ESCROW HOLDER SHALL IMMEDIATELY DELIVER (UNLESS IT HAS ALREADY DONE SO) THE DEPOSIT TO SELLER. SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY. OTHER THAN RECOVERY AND RETENTION OF THE DEPOSIT, AND EXCEPT AS PROVIDED BELOW IN THIS SECTION 13.1, SELLER SHALL NOT BE ENTITLED TO MAINTAIN ANY ACTION FOR DAMAGES, AND SHALL NOT HAVE ANY OTHER RIGHT OR REMEDY AT LAW OR IN EQUITY IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT. NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SECTION 14 HEREOF. SELLER HEREUNDER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, PROVISIONS OF THIS SECTION 13.1 AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.BOUND BY ITS TERMS. Seller’s Initials: /s/CJS Buyer’s Initials: /s/MW
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
Default by Buyer. IN THE EVENT THE CLOSE OF ESCROW DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER, BUYER AND SELLER AGREE, THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT PURCHASE OF THE DEFAULT OF BUYER IN PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTDEPOSIT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. TOGETHER WITH THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLERACCRUED INTEREST THEREON; AND, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED TO LIQUIDATED DAMAGES IN THE SAID AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BE DISBURSED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSE OF ESCROW NOT OCCURRING, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN RESPECT OF BUYER’S BREACH OF THIS AGREEMENT BEING HEREIN EXPRESSLY WAIVED BY SELLER. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER’S INDEMNITY AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERCONFIDENTIALITY OBLIGATIONS.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin Capital Net Lease REIT, Inc.)
Default by Buyer. IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY DOES NOT OCCUR AS A RESULT HEREIN PROVIDED BY REASON OF THE ANY DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTBUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THE PARTIES THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW BUYER DEFAULTS AND THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT COMPLETE THE PURCHASE OF THE DEFAULT OF BUYER IN PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDERDEPOSIT, SELLERTOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED TO LIQUIDATED DAMAGES IN THE SAID AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT-29- ▇▇▇▇▇▇ Realty, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY L.P. - Purchase Agreement Santa Fe Summit SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BE DISBURSED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSE OF ESCROW NOT OCCURRING, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN RESPECT OF BUYER’S BREACH OF THIS AGREEMENT BEING HEREIN EXPRESSLY WAIVED BY SELLER. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. NOTHING CONTAINED IN THIS SECTION SHALL LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS. /s/ JH THR /s/ RNW SELLER’S INITIALS BUYER’S INITIALS 16.3 AS A MATERIAL CONSIDERATION FOR SELLER ENTERING INTO THIS AGREEMENT, BUYER EXPRESSLY WAIVES FOR ANY DEFAULT BY SELLER (A) ANY RIGHT UNDER CALIFORNIA CODE OF CIVIL PROCEDURE, PART 2, TITLE 4.5, SECTION 4.05 THROUGH 4.05.61 OR ANY OTHER SIMILAR STATE OR FEDERAL STATUTE, OR AT COMMON LAW OR OTHERWISE TO RECORD OR FILE A LIS PENDENS OR A NOTICE OF PENDENCY OF ACTION OR SIMILAR NOTICE AGAINST ALL OR ANY PORTION OF THE PROPERTY UNLESS AND UNTIL BUYER HAS ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS FILED AN ACTION SEEKING SUCH REMEDY, (B) ANY RIGHT TO SEEK DAMAGES IN THE EVENT OF SELLER’S PRE-CLOSING DEFAULT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, PURSUANT TO SECTION 16.4 BELOW, BUYER DOES NOT WAIVE ANY OF ITS RIGHTS TO SEEK DAMAGES FOR SELLER’S BREACH OF ANY OF ITS REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT, SO LONG AS BUYER FIRST OBTAINS ACTUAL KNOWLEDGE OF SUCH BREACH AFTER THE CLOSING, OR FOR ANY BREACH OF SELLER’S OBLIGATIONS OR COVENANTS SET FORTH IN THIS AGREEMENT THAT EXPRESSLY SURVIVE THE CLOSING, SO LONG AS BUYER FIRST OBTAINS ACTUAL KNOWLEDGE OF SUCH BREACH AFTER THE CLOSING, AND (IVC) UNLESS AND UNTIL BUYER HAS ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS FILED AN ACTION SEEKING SUCH REMEDY, BUYER’S RIGHT TO BRING ANY ACTION THAT WOULD IN ANY WAY AFFECT TITLE TO OR RIGHT OF POSSESSION OF ALL OR ANY PORTION OF THE PROPERTY. EACH OF BUYER AND SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389 AND ANY SIMILAR STATE OR FEDERAL STATUTE. BUYER ACKNOWLEDGES AND AGREES THAT PRIOR TO THE CLOSING, BUYER SHALL NOT HAVE ANY RIGHT, TITLE COMPANY OR INTEREST IN AND ESCROW AGENT CANCELLATION CHARGESTO THE PROPERTY OR ANY PORTION THEREOF UNLESS AND UNTIL BUYER HAS ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS FILED AN ACTION SEEKING SUCH REMEDY. EACH OF BUYER AND SELLER HEREBY EVIDENCES ITS SPECIFIC AGREEMENT TO THE TERMS OF THIS WAIVER BY PLACING ITS SIGNATURE OR INITIALS IN THE SPACE PROVIDED HEREINAFTER. -30- ▇▇▇▇▇▇ Realty, IF ANY, SHALL BE CHARGED TO L.P. - Purchase Agreement Santa Fe Summit /s/ RNW /s/ JH THR BUYER.’S INITIALS SELLER’S INITIALS
Appears in 1 contract
Default by Buyer. IN IF BUYER FAILS TO PURCHASE THE EVENT THAT PROPERTY WHEN IT IS OBLIGATED TO DO SO UNDER THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT TERMS OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS “LIQUIDATED DAMAGES.” BUYER AND SELLER 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 SUCH DEFAULT BY BUYER. ACCORDINGLY, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND OF SUCH DEFAULT BY BUYER UNDER THIS TRANSACTION FAIL AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO CLOSE SOLELY AWARD SELLER THE DEPOSIT AS A RESULT LIQUIDATED DAMAGES. IN CONSIDERATION OF THE DEFAULT RIGHT TO RECEIVE PAYMENT OF BUYER IN THE PERFORMANCE LIQUIDATED DAMAGES, SELLER WILL BE DEEMED TO HAVE WAIVED ALL OF ITS OBLIGATIONS HEREUNDERCLAIMS AGAINST BUYER FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY. CONSEQUENTLY, THE LIQUIDATED DAMAGES SHALL BE SELLER, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT OR REMEDY, IS AT LAW AND EQUITY, TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT BY REASON OF BUYER'S ’S DEFAULT, THEN (I) . SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS AGREEMENT PARAGRAPH 7.5.1 AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO BE BOUND BY ITS TERMS. ______________________SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO ’S INITIALS ____________________BUYER.’S INITIALS
Appears in 1 contract
Sources: Purchase Agreement (KBS Real Estate Investment Trust III, Inc.)
Default by Buyer. IN IF THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY CLOSING DOES NOT OCCUR AS A RESULT HEREIN PROVIDED BY REASON OF THE ANY DEFAULT OF BUYER IN ITS CLOSING OBLIGATIONS AND PROVIDED SELLER IS NOT OTHERWISE IN DEFAULT, THEN BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTDAMAGES WHICH SELLER MAY SUFFER. THEREFORE, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT REASONABLE ESTIMATE OF THE DEFAULT TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IF BUYER DEFAULTS AND DOES NOT COMPLETE THE PURCHASE OF BUYER THE PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE DEPOSIT, TOGETHER WITH THE INTEREST ACCRUED THEREON IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLERESCROW; AND, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED TO LIQUIDATED DAMAGES IN THE SAID AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BE DISBURSED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE AS THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSING NOT OCCURRING. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. NOTHING IN THIS SECTION SHALL LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5, OR WAIVE OR AFFECT BUYER’S INDEMNITY OBLIGATIONS. IF SELLER TERMINATES THIS AGREEMENT PURSUANT TO A RIGHT GIVEN TO IT HEREUNDER AND BUYER TAKES ANY ACTION WHICH INTERFERES WITH SELLER’S ABILITY TO SELL, EXCHANGE, TRANSFER, LEASE, DISPOSE OF OR FINANCE THE PROPERTY OR TAKE ANY OTHER ACTIONS WITH RESPECT THERETO (IVINCLUDING THE FILING OF ANY LIS PENDENS OR OTHER FORM OF ATTACHMENT AGAINST THE PROPERTY), THEN THE NAMED BUYER (AND ANY TRANSFEREE OR ASSIGNEE OF BUYER’S INTEREST HEREUNDER) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED LIABLE FOR ALL LOSS, COST, DAMAGE, LIABILITY OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES, COURT COSTS AND DISBURSEMENTS AND CONSEQUENTIAL DAMAGES) INCURRED BY SELLER BY REASON OF SUCH ACTION TO CONTEST BY BUYER.. /s/ GY /s/ JG SELLER’S INITIALS BUYER’S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Invesco Real Estate Income Trust Inc.)
Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE DEFAULT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIXASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE PARTIES THEREFORE AGREE THAT POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THAT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND THIS TRANSACTION FAIL WISHES TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE PERFORMANCE EVENT OF ITS OBLIGATIONS HEREUNDER, A BUYER DEFAULT. BUYER AND SELLER, AS SELLER'S SOLE AFTER DUE NEGOTIATION, HEREBY ACTIVE 31157768v21 ‑27‑ ACKNOWLEDGE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN AGREE THAT THE AMOUNT OF THE DEPOSIT (EXCLUSIVE REIMBURSABLE EXPENSES REPRESENTS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON). THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT, IN THE EVENT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULTHAVING BEEN SATISFIED OR WAIVED), THEN (I) SELLER MAY TERMINATE THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER AND CANCEL THE ESCROW, IN WHICH EVENT BUYER SHALL PAY SELLER ALL DOCUMENTS AND INSTRUMENTS THE REIMBURSABLE EXPENSES AS LIQUIDATED DAMAGES. SUCH RECEIPT OF THE REIMBURSABLE EXPENSES BY SELLER IS INTENDED TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SELLER'S INSTRUCTIONSSECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE SAME MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SECTION 14 HEREOF. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.BOUND BY ITS TERMS. Seller's Initials on Behalf of All Seller Parties /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS Buyer's Initials on Behalf of All Buyer Parties /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS
Appears in 1 contract
Sources: Portfolio Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Default by Buyer. IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY DOES NOT OCCUR AS A RESULT HEREIN PROVIDED BY REASON OF THE ANY DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTBUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THE PARTIES THEREFORE BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW BUYER DEFAULTS AND THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT COMPLETE THE PURCHASE OF THE DEFAULT OF BUYER IN PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDERDEPOSIT, SELLERTOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES REMEDY (WHETHER AT LAW OR IN THE AMOUNT EQUITY) FOR BUYER’S BREACH OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS ITS OBLIGATION TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULTESCROW AND PURCHASE THE PROPERTY, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SAID AMOUNT SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BE DISBURSED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE AS THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES FOR A BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN THE CLOSE OF ESCROW NOT OCCURRING. SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES FOR SUCH BREACH. NOTHING CONTAINED IN THIS SECTION 16.2 SHALL LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR COSTS AND (IV) ALL TITLE COMPANY EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE OR AFFECT BUYER’S INDEMNITY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.CONFIDENTIALITY OBLIGATIONS. /s/ SL /s/ JM
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Terreno Realty Corp)
Default by Buyer. In the event that this transaction fails to close by reason of any default by Buyer, all ▇▇▇▇▇▇▇ Money shall be forfeited by Buyer and released from escrow to Seller, which shall be Seller’s sole and exclusive remedy on account of Buyer’s default. Buyer shall only be in default or breach under this Agreement, if Buyer has failed to cure a default hereunder within three (3) business days from Buyer’s receipt of Seller’s written notice to cure such breach. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED BY REASON OF A DEFAULT BY BUYER HEREUNDER AFTER SELLER HAS GIVEN BUYER NOTICE AS SET FORTH IN SECTION 16.2 ABOVE, THEN BUYER SHALL HAVE NO FURTHER RIGHT TO PURCHASE ALL OR ANY PORTION OF THE PROPERTY FROM SELLER, AND SELLER SHALL BE ENTITLED TO RECEIVE FROM BUYER THE ▇▇▇▇▇▇▇ MONEY AS SELLER’S LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR AND EXTREMELY DIFFICULT TO FIX. FIX THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED ACTUAL DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY SUFFERED BY SELLER AS A RESULT OF BUYER'S DEFAULT’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT. IN ADDITION, THEN (I) BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AGREEMENT, AND SELLER HEREUNDER DESIRES TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER WERE REQUIRED TO FILE A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, THE ESCROW CREATED HEREBY SHALL TERMINATEPARTIES AGREE THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, (II) ESCROW AGENT SHALLTHE LIQUIDATED DAMAGES PROVIDED FOR 18 - Purchase and Sale Agreement HEREIN REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE, AND IS HEREBY AUTHORIZED AND INSTRUCTED TOSHALL BE SELLER’S SOLE REMEDY, RETURN PROMPTLY EXCEPT FOR BUYER’S OBLIGATIONS TO BUYER AND INDEMNIFY SELLER ALL DOCUMENTS AND INSTRUMENTS AS PROVIDED IN THIS AGREEMENT, WHICH SHALL REMAIN REMEDIES OF SELLER IN ADDITION TO LIQUIDATED DAMAGES. THE PARTIES WHO DEPOSITED ACKNOWLEDGE THAT THE SAMEPAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AND SHALL NOT CONSTITUTE A FORFEITURE OR PENALTY, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST BUT IS INTENDED TO CONSTITUTE AND DIVIDENDS EARNED THEREON) REPRESENT LIQUIDATED DAMAGES TO SELLER PURSUANT TO SELLER'S INSTRUCTIONSCALIFORNIA CIVIL CODE §§ 1671 AND 1677. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE IN THIS SECTION AND THE SAME SHALL BE FACT THAT SUCH PARTY WAS REPRESENTED BY COUNSEL OF ITS OWN CHOOSING WHO, AT THE FULLTIME THIS AGREEMENT WAS MADE, AGREED AND LIQUIDATED DAMAGESEXPLAINED THE CONSEQUENCES OF THIS SECTION TO IT. THIS SECTION DOES NOT LIMIT BUYER’S OBLIGATIONS WHICH, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGESAS OTHERWISE PROVIDED HEREIN, IF ANY, SHALL BE CHARGED TO SURVIVE THE TERMINATION OF THIS AGREEMENT. BUYER.’S INITIALS: _______ SELLER’S INITIALS: _______
Appears in 1 contract
Sources: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE SOLELY AS A RESULT HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE DEFAULT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIXASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE PARTIES THEREFORE AGREE THAT POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THAT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND THIS TRANSACTION FAIL WISHES TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE PERFORMANCE EVENT OF ITS OBLIGATIONS HEREUNDER, A BUYER DEFAULT. BUYER AND SELLER, AS SELLER'S SOLE AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN AGREE THAT THE AMOUNT OF THE DEPOSIT (EXCLUSIVE REPRESENTS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON). THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO CLOSE SOLELY AS OCCUR DUE TO A RESULT OF BUYER'S BUYER DEFAULT, THEN (I) TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL THE RIGHTS ESCROW AND RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES AND ESCROW HOLDER SHALL IMMEDIATELY DELIVER THE DEPOSIT TO SELLER. SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A FOREFEITURE OR PENALTY. NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS' FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTIONS 4.3.1 AND 14 HEREOF. SELLER HEREUNDER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, PROVISIONS OF THIS SECTION 13.1 AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.BOUND BY ITS TERMS. Seller's Initials: _____________ Buyer's Initials: WLO -------------
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Default by Buyer. In the event that this transaction fails to close by reason of any default by Buyer, all ▇▇▇▇▇▇▇ Money shall be forfeited by Buyer and released from escrow to Seller. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED BY REASON OF A DEFAULT BY BUYER HEREUNDER, THEN BUYER SHALL HAVE NO FURTHER RIGHT TO PURCHASE ALL OR ANY PORTION OF THE PROPERTY FROM SELLER, AND SELLER SHALL BE ENTITLED TO RECEIVE FROM BUYER THE ▇▇▇▇▇▇▇ MONEY AS SELLER’S LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR AND EXTREMELY DIFFICULT TO FIX. FIX THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED ACTUAL DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY SUFFERED BY SELLER AS A RESULT OF BUYER'S DEFAULT’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT. IN ADDITION, THEN (I) BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT, AND SELLER DESIRES TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF SELLER WERE REQUIRED TO FILE A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, THE PARTIES AGREE THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR HEREIN REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE, AND SHALL BE SELLER’S SOLE REMEDY, EXCEPT FOR BUYER’S OBLIGATIONS TO INDEMNIFY SELLER AS PROVIDED IN THIS AGREEMENT, WHICH SHALL REMAIN REMEDIES OF SELLER IN ADDITION TO LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED TO BE AND SHALL NOT CONSTITUTE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE AND REPRESENT LIQUIDATED DAMAGES TO SELLER. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE IN THIS SECTION AND THE FACT THAT SUCH PARTY WAS REPRESENTED BY COUNSEL OF ITS OWN CHOOSING WHO, AT THE TIME THIS AGREEMENT AND WAS MADE, EXPLAINED THE RIGHTS AND CONSEQUENCES OF THIS SECTION TO IT. THIS SECTION DOES NOT LIMIT BUYER’S OBLIGATIONS WHICH, 13 - Purchase and Sale Agreement AS OTHERWISE PROVIDED HEREIN, SURVIVE THE TERMINATION OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO THIS AGREEMENT. BUYER’S INITIALS: _/s/ ST___ SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.’S INITIALS: _/s/ BC___
Appears in 1 contract
Sources: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Default by Buyer. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES IN THE EVENT THAT OF A FAILURE TO CONSUMMATE THE ESCROW AND THIS TRANSACTION FAIL DUE TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE BUYER’S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND TO THE EXTENT THAT SUCH BREACH WOULD CAUSE ANY OF THE CONDITIONS TO THE OBLIGATIONS OF SELLER AGREE THAT SELLER'S ACTUAL DAMAGES AS PROVIDED IN THIS AGREEMENT TO FAIL TO BE SATISFIED, WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT OR IMPRACTICABLE TO FIXDETERMINE. AFTER NEGOTIATION, THE PARTIES THEREFORE AGREE THAT IN HAVE AGREED THAT, CONSIDERING ALL THE EVENT THAT ESCROW AND CIRCUMSTANCES EXISTING ON THE DATE OF THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDERAGREEMENT, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OPTION FEE IS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON)THE DAMAGES THAT SELLER WOULD INCUR IN THE EVENT OF BUYER’S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT TO THE EXTENT THAT SUCH BREACH WOULD CAUSE ANY OF THE CONDITIONS TO THE OBLIGATIONS OF SELLER AS PROVIDED IN THIS AGREEMENT TO FAIL TO BE SATISFIED. IN THE EVENT ESCROW BUYER FAILS TO CLOSE SOLELY COMPLETE THE PURCHASE OF THE PURCHASED INTERESTS UPON THE SATISFACTION OF BUYER’S OBLIGATIONS SET FORTH IN THIS AGREEMENT, SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT, IN WHICH EVENT THE OPTION FEE PAID BY BUYER UNDER THE OPTION AGREEMENT SHALL BE LIQUIDATED DAMAGES AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT EXCEPT AS PROVIDED IN SECTION 9.6. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A RESULT FORFEITURE OR A PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF BUYER'S DEFAULTTHE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, THEN (I) AT THE TIME THIS AGREEMENT AND WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. THIS SECTION 7.1 IS NOT INTENDED TO LIMIT EITHER PARTY’S RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERUNDER SECTION 9.2.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Boyd Gaming Corp)
Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE DEFAULT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIXASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE PARTIES THEREFORE AGREE THAT POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THAT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND THIS TRANSACTION FAIL WISHES TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE PERFORMANCE EVENT OF ITS OBLIGATIONS HEREUNDER, A BUYER DEFAULT. BUYER AND SELLER, AS SELLER'S SOLE AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN AGREE THAT THE AMOUNT OF THE DEPOSIT (EXCLUSIVE REPRESENTS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON). THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO CLOSE SOLELY AS OCCUR DUE TO A RESULT OF BUYER'S BUYER DEFAULT, THEN (I) TERMINATE THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY BY WRITTEN NOTICE TO BUYER AND SELLER ALL DOCUMENTS ESCROW HOLDER, CANCEL THE ESCROW AND INSTRUMENTS TO RECEIVE THE PARTIES WHO DEPOSITED THE SAME, (III) DEPOSIT AS LIQUIDATED DAMAGES AND ESCROW AGENT HOLDER SHALL DELIVER THE DEPOSIT TO SELLER NO EARLIER THAN THREE (EXCLUSIVE 3) BUSINESS DAYS AFTER ESCROW HOLDER’S AND BUYER’S RECEIPT OF INTEREST SELLER’S NOTICE; PROVIDED, HOWEVER, IN THE EVENT BUYER DELIVERS A WRITTEN OBJECTION TO SELLER’S NOTICE WITHIN THE TIME PERIOD SET FORTH ABOVE, ESCROW HOLDER SHALL NOT RELEASE THE DEPOSIT TO SELLER UNTIL SUCH TIME THAT JOINT DIRECTION IS ISSUED BY THE PARTIES, OR IN CONNECTION WITH ESCROW HOLDER FILING AN INTERPLEADER ACTION IN A COURT OF GENERAL JURISDICTION IN THE COUNTY OR CIRCUIT WHERE THE PROPERTY IS LOCATED. SUCH PAYMENT OF THE DEPOSIT TO SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND DIVIDENDS EARNED THEREONSHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY. NOTHING IN THIS SECTION 13.1 SHALL (A) TO PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SELLER'S INSTRUCTIONS, SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SECTION 14 HEREOF. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE SAME SHALL PROVISIONS OF THIS SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.BOUND BY ITS TERMS. Seller’s Initials: /s/ CJS Buyer’s Initials: /s/ RW
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Default by Buyer. IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT THE CONSUMMATION OF THE TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTOR BREACH BY BUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE, IN THE PARTIES THEREFORE EVENT OF ANY DEFAULT OR BREACH BY BUYER WHICH DELAYS THE CLOSE OF ESCROW OR INTERFERES WITH THE CONSUMMATION OF THE TRANSACTION, WHICH DEFAULT OR BREACH IS NOT CURED WITHIN TEN (10) BUSINESS DAYS AFTER WRITTEN NOTICE IS GIVEN BY SELLER TO BUYER, THIS AGREEMENT SHALL TERMINATE AND BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW BUYER DEFAULTS AND THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT COMPLETE THE PURCHASE OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLERPROPERTY IS AND SHALL BE, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED AN AMOUNT EQUAL TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE ENTIRE DEPOSIT (EXCLUSIVE OF WHICH INCLUDES ANY ACCRUED INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TOGETHER WITH ANY OTHER SUMS PAID OR RELEASED TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME UNDER THIS AGREEMENT. SAID AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREIN EXPRESSLY WAIVED BY SELLER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON DEFAULT BY BUYER, THIS AGREEMENT SHALL BE TERMINATED AND (IV) ALL TITLE COMPANY NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYERHOLDER.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Default by Buyer. IN THE EVENT THAT THE ESCROW AND IF THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT OF A MATERIAL DEFAULT BY BUYER WITH RESPECT TO ANY OF THE DEFAULT TERMS OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SUCH MATERIAL DEFAULT CONTINUES FOR A PERIOD OF TEN (10) DAYS AFTER SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF NOTIFIES BUYER IN THE PERFORMANCE WRITING OF ITS OBLIGATIONS HEREUNDERSUCH EVENT, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED REMEDY FOR SUCH MATERIAL DEFAULT SHALL BE THE RIGHT TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST CANCEL AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) TERMINATE THIS AGREEMENT AND THE RIGHTS RECEIVE AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER RETAIN THE DEPOSIT PLUS RECEIVE AND RETAIN FROM BUYER THE SUM OF SIX MILLION FIVE HUNDRED THOUSAND DOLLARS (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON$6,500,000.00) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND AS LIQUIDATED DAMAGES, IT BEING UNDERSTOOD AND AGREED THAT SELLER IS HEREBY RELEASING AND/OR WAIVING ANY RIGHT IT MIGHT HAVE EITHER TO SPECIFICALLY ENFORCE THIS AGREEMENT OR TO ▇▇▇ FOR ANY OTHER OR ADDITIONAL DAMAGES. SELLER HAS AGREED TO THIS LIQUIDATED DAMAGE PROVISION BECAUSE OF THE DIFFICULTY OF ASCERTAINING SELLER'S ACTUAL DAMAGES GIVEN THE UNCERTAINTIES OF THE REAL ESTATE MARKET, FLUCTUATING PROPERTY VALUES AND DIFFERENCES OF OPINION WITH RESPECT TO SUCH MATTERS. UNLESS SELLER WAIVES THE BUYER'S DEFAULT IN WRITING WITHIN FIVE (IV5) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGESDAYS AFTER THE EXPIRATION OF THE 10-DAY PERIOD SPECIFIED IN THE PRECEDING SENTENCE, IF ANYOR SUCH DEFAULT IS CURED WITHIN SUCH 10-DAY PERIOD, THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE EFFECTIVE FIFTEEN (15) DAYS AFTER THE NOTICE OF DEFAULT IS GIVEN WITHOUT THE NECESSITY OF FURTHER NOTICE BEING GIVEN. UPON SUCH TERMINATION, EACH PARTY SHALL BE CHARGED RELEASED FROM ALL DUTIES OR OBLIGATIONS CONTAINED HEREIN, EXCEPT FOR THOSE SUCH OBLIGATIONS THAT SPECIFICALLY SURVIVE TERMINATION INCLUDING, WITHOUT LIMITATION, BUYER'S OBLIGATIONS TO BUYERPAY LIQUIDATED DAMAGES HEREUNDER.
Appears in 1 contract
Default by Buyer. IN THE EVENT OF ANY DEFAULT BY BUYER HEREUNDER, SELLER SHALL BE ENTITLED TO RECEIVE, AS FIXED AND LIQUIDATED DAMAGES AND AS SELLER’S SOLE REMEDY HEREUNDER, AT LAW OR IN EQUITY, THE DEPOSIT, EXCEPT THAT THE ESCROW AND THIS TRANSACTION FAIL FOREGOING SHALL NOT APPLY TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS BUYER’S INDEMNITY OBLIGATIONS HEREUNDER OR BUYER’S OBLIGATIONS UNDER THIS AGREEMENTPARAGRAPH 5.1 (IN CONNECTION WITH WHICH, BUYER’S LIABILITY SHALL BE LIMITED TO SELLER’S ACTUAL DAMAGES). BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER IN THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED. THE PARTIES BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE BUYER’S DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, OR BREACH HEREUNDER IS ENTITLED TO LIQUIDATED DAMAGES IN THE AN AMOUNT OF MONEY EQUAL TO THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME WHICH SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND (IV) ALL TITLE COMPANY 1677 AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL NOT CONSTITUTE FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE 3275 OR 3369. THE FOREGOING SHALL BE CHARGED TO BUYER.SELLER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER. SELLERS INITIALS BUYERS INITIALS
Appears in 1 contract
Default by Buyer. IN IF THE EVENT THAT THE ESCROW AND CLOSING OF THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY OCCUR ON OR BEFORE THE CLOSING DATE AS A RESULT OF BUYER'S BREACH OF THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE BY INITIALING THIS AGREEMENT IN THE SPACE PROVIDED BELOW THAT:
(I) THE EARNEST MONEY DEPOSIT BEARS ▇ ▇▇▇▇ONABLE RELATIONSHIP TO THE DAMAGES WHICH THE PARTIES ESTIMATE MAY BE SUFFERED BY SELLER AS THE RESULT OF BUYER'S DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL WHICH DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX. , THAT THE PARTIES THEREFORE AGREE EARNEST MONEY DEPOSIT CONST▇▇▇▇▇▇ A REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH EVENT, AND THAT IN THE EVENT THAT ESCROW REMEDY PROVIDED FOR HEREIN IS NOT A PENALTY OR FORFEITURE AND THIS TRANSACTION FAIL TO CLOSE SOLELY IS A REASONABLE LIMITATION ON BUYER'S POTENTIAL LIABILITY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT SUCH DEFAULT; AND
(EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY II) AS A RESULT OF BUYER'S DEFAULTBREACH OF THIS AGREEMENT AND FAILURE OF THE CLOSING TO OCCUR ON OR BEFORE THE CLOSING DATE, THEN (I) SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND THE RIGHTS ESCROW BY WRITTEN NOTICE TO ESCROW AGENT, WHEREUPON SELLER AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THEREUPON BE RELEASED FROM THEIR RESPECTIVE OBLIGATIONS THEREUNDER TO SELL THE PROPERTY TO BUYER OR ITS PERMITTED ASSIGNEE, AND SELLER SHALL RETAIN THE EARNEST MONEY DEPOSIT (EXCLUSIVE OF O▇ ▇▇▇▇▇W AGENT SHALL RELEASE THE EARNEST MONEY DEPOSIT AND A▇▇ ▇▇▇▇UED INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT THEREON TO SELLER'S INSTRUCTIONS, AND TO THE SAME SHALL BE THE FULL, AGREED AND EXTENT NOT ALREADY SO RELEASED) AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE SELLER'S SOLE AND (IV) ALL TITLE COMPANY EXCLUSIVE REMEDY HEREUNDER IN THE EVENT OF SUCH BREACH, EXCEPT FOR SELLER'S RIGHTS AND ESCROW AGENT CANCELLATION CHARGESREMEDIES FOR A SEPARATE BREACH, IF ANY, SHALL BE CHARGED TO BUYER.ANY OF THE CONFIDENTIALITY AND INDEMNIFICATION PROVISIONS OF THIS AGREEMENT. /s/ JCM /s/ DC /s/ VJC Initials of Seller Initials of Buyer
Appears in 1 contract
Default by Buyer. IN THE EVENT THAT BUYER FAILS IN THE PERFORMANCE ---------------- OF ANY OF ITS OBLIGATIONS HEREUNDER FOLLOWING THE CONTINGENCY DATE BUT PRIOR TO THE CLOSE OF ESCROW, OR IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION SHALL FAIL TO CLOSE SOLELY AS OCCUR BY REASON OF A RESULT OF DEFAULT IN BUYER'S OBLIGATIONS HEREUNDER, THE DEFAULT OF PARTIES AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER IN THE PERFORMANCE OF FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION SHALL FAIL TO CLOSE SOLELY AS OCCUR BY REASON OF A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS BUYER'S OBLIGATIONS HEREUNDER, SELLERSELLER SHALL BE ENTITLED, AS SELLER'S ITS SOLE AND EXCLUSIVE REMEDYREMEDY FOR SUCH DEFAULT, IS TO IMMEDIATELY TERMINATE THIS AGREEMENT UPON SUCH DEFAULT, IN WHICH CASE THE AGGREGATE SUM OF THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000) SHALL BE DELIVERED TO SELLER (THE DEPOSIT TO BE PROMPTLY DELIVERED BY ESCROW HOLDER AND THE BALANCE TO BE DELIVERED WITHIN THREE (3) BUSINESS DAYS BY BUYER) AS LIQUIDATED DAMAGES AND BUYER SHALL NOT BE ENTITLED TO RECOVER ANY OF ITS DUE DILIGENCE EXPENSES PURSUANT TO ARTICLE 4 ABOVE. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676, AND 1677. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION CONTAINED IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON)THIS SECTION. SELLER WAIVES ALL OTHER REMEDIES AGAINST BUYER FOR BUYER'S FAILURE TO CLOSE ESCROW, INCLUDING ANY RIGHT TO SPECIFIC PERFORMANCE UNDER CALIFORNIA CIVIL CODE SECTION 1680 OR ANY OTHER APPLICABLE LAW. IN THE EVENT ESCROW FAILS THAT THE ADDITIONAL AMOUNT OWED BY BUYER PURSUANT TO CLOSE SOLELY AS A RESULT THIS SECTION 6.2 IS NOT PAID WHEN DUE, IT SHALL THEREAFTER ACCRUE INTEREST AT THE RATE OF BUYER'S DEFAULT, THEN TEN PERCENT (I10%) THIS AGREEMENT PER ANNUM UNTIL PAID IN FULL AND SELLER SHALL HAVE THE RIGHTS RIGHT TO COLLECT FROM BUYER REASONABLE COLLECTION COSTS INCLUDING REASONABLE ATTORNEYS' FEES AND OBLIGATIONS OF COSTS. BUYER AND SELLER HEREUNDER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, PROVISIONS OF THIS SECTION 6.2 AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY BY THEIR INITIALS BELOW AGREE TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.BOUND BY ITS TERMS. /s/ SLM /s/ RES -------------- ---------------- Buyer's Initials Seller's Initials
Appears in 1 contract
Default by Buyer. IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION TRANSACTIONS SHALL FAIL TO CLOSE SOLELY BE CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THE DEPOSIT (INCLUDING ALL INTEREST EARNED FROM THE INVESTMENT THEREOF) SHALL BE PAID TO AND RETAINED BY SELLER AS A RESULT OF LIQUIDATED DAMAGES. THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW THE SALE IS NOT CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 7.1, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT AND THIS TRANSACTION FAIL TO CLOSE SOLELY ANY INTEREST THEREON HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS A RESULT THE PARTIES' REASONABLE ESTIMATE OF THE DEFAULT OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, AGAINST BUYER IN THE EVENT THE CLOSING DOES NOT OCCUR, INCLUDING ANY RIGHT IN EQUITY TO SEEK SPECIFIC PERFORMANCE OF ITS OBLIGATIONS HEREUNDERHEREOF, SELLERAND IS NOT INTENDED AS A FORFEITURE OR PENALTY, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, BUT IS ENTITLED INTENDED TO CONSTITUTE LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON)TO SELLER. IN THE EVENT ADDITION, BUYER SHALL PAY EIGHTY PERCENT (80%), AND SELLER SHALL PAY TWENTY PERCENT (20%), OF ALL ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULTCANCELLATION CHARGES. BY THEIR SEPARATELY EXECUTING THIS SECTION 7.1, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED. SELLER'S INITIALS BUYER.'S INITIALS
Appears in 1 contract
Sources: Sale, Purchase and Escrow Agreement (MPG Office Trust, Inc.)
Default by Buyer. IN IF BUYER FAILS TO PURCHASE THE EVENT THAT PROPERTY WHEN IT IS OBLIGATED TO DO SO UNDER THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT TERMS OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS “LIQUIDATED DAMAGES.” BUYER AND SELLER 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 SUCH DEFAULT BY BUYER. ACCORDINGLY, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND OF SUCH DEFAULT BY BUYER UNDER THIS TRANSACTION FAIL AGREEMENT, IT WOULD BE REASONABLE AT SUCH TIME TO CLOSE SOLELY AWARD SELLER THE DEPOSIT AS A RESULT LIQUIDATED DAMAGES. IN CONSIDERATION OF THE DEFAULT RIGHT TO RECEIVE PAYMENT OF BUYER IN THE PERFORMANCE LIQUIDATED DAMAGES, SELLER WILL BE DEEMED TO HAVE WAIVED ALL OF ITS OBLIGATIONS HEREUNDERCLAIMS AGAINST BUYER FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY. CONSEQUENTLY, THE LIQUIDATED DAMAGES SHALL BE SELLER, AS SELLER'S ’S SOLE AND EXCLUSIVE REMEDY IN LIEU OF ANY OTHER RELIEF, RIGHT OR REMEDY, IS AT LAW AND IN EQUITY, TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT BY REASON OF BUYER'S ’S DEFAULT, THEN (I) EXCEPT AS SET FORTH IN PARAGRAPH 13.2 HEREOF. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS AGREEMENT PARAGRAPH 7.5.1 AND BY THE RIGHTS AND OBLIGATIONS INITIALS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY THEIR REPRESENTATIVES IMMEDIATELY BELOW AGREE TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE BE BOUND BY ITS TERMS. INITIALS OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO ’S REPRESENTATIVE INITIALS OF BUYER.’S REPRESENTATIVE
Appears in 1 contract
Sources: Purchase Agreement (KBS Real Estate Investment Trust, Inc.)
Default by Buyer. In the event that Buyer fails to consummate this Contract for any reason, except Seller's default or the permitted termination of this Contract by Buyer as herein expressly provided, Seller shall be entitled, as its sole remedy, to terminate this Contract and receive the ▇▇▇▇▇▇▇ Money as liquidated damages for the breach of this Contract. In the event that Buyer closes under this Contract and then fails to fully and timely perform any of its other obligations under this Contract that survive or are performable after the Closing, Seller may seek all remedies available at law or in equity. IF THIS TRANSACTION FAILS TO CLOSE DUE TO BUYER'S DEFAULT, SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION FOR THOSE DAMAGES. SUCH DAMAGES WILL, HOWEVER, BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN FOR THE FOLLOWING REASONS: (A) THE DAMAGES TO WHICH SELLER WOULD BE ENTITLED IN A COURT OF LAW WILL BE BASED IN PART ON THE EVENT THAT DIFFERENCE BETWEEN THE ACTUAL VALUE OF THE PROPERTY AT THE TIME SET FOR THE CLOSE OF ESCROW AND THE PURCHASE PRICE FOR THE PROPERTY AS SET FORTH IN THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT CONTRACT; (B) PROOF OF THE DEFAULT AMOUNT OF SUCH DAMAGES WILL BE BASED ON OPINIONS OF VALUE OF THE PROPERTY, WHICH CAN VARY IN SIGNIFICANT AMOUNTS; AND (C) IT IS IMPOSSIBLE TO PREDICT AS OF THE DATE ON WHICH THIS AGREEMENT IS MADE WHETHER THE VALUE OF THE PROPERTY WILL INCREASE OR DECREASE AS OF THE DATE SET FOR THE CLOSING. FURTHERMORE, BUYER ACKNOWLEDGES SELLER HAD OTHER OPPORTUNITIES TO SELL THE PROPERTY AND RELIED UPON THE REPRESENTATIONS OF BUYER IN THAT IT WOULD PERFORM AND PURCHASE THE PERFORMANCE PROPERTY FROM SELLER. BUYER DESIRES TO LIMIT THE AMOUNT OF ITS OBLIGATIONS UNDER DAMAGES FOR WHICH BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT, . BUYER AND SELLER AGREE THAT WISH TO AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD RESULT IF SELLER FILED A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, THE SUM REPRESENTED BY THE BUYER'S ▇▇▇▇▇▇▇ MONEY SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. UNDER THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT PROVISIONS OF SECTION 1671 OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS CALIFORNIA CIVIL CODE AND SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). REMEDY IN THE EVENT ESCROW FAILS OF THE FAILURE TO CLOSE SOLELY AS A RESULT OF ESCROW DUE TO BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO . THE PARTIES WHO DEPOSITED ACKNOWLEDGE THAT PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE SAMEMEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SELLER'S INSTRUCTIONSCALIFORNIA CIVIL CODE SECTIONS 1671, 1676, AND 1677. IN CONSIDERATION OF THE SAME SHALL BE THE FULL, AGREED AND PAYMENT OF LIQUIDATED DAMAGES, SELLER WILL BE DEEMED TO HAVE WAIVED ALL OTHER CLAIMS FOR DAMAGES OR RELIEF AT LAW OR IN EQUITY INCLUDING ANY RIGHTS SELLER MAY HAVE PURSUANT TO SECTION 1680 OR SECTION 3389 OF THE CALIFORNIA CIVIL CODE. BY INITIALING THIS PROVISION IN THE SPACES BELOW, SELLER AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER EACH SPECIFICALLY AFFIRM THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS SECTION. _______________ BUYER.'S INITIALS ________________ SELLER'S INITIALS
Appears in 1 contract
Default by Buyer. IN IF THE EVENT THAT CLOSING AND THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT CONSUMMATION OF THE TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR ON OR BEFORE THE CLOSING DATE AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTBUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIXESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. THE PARTIES THEREFORE THEREFORE, BUYER AND SELLER HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT ESCROW BUYER DEFAULTS AND THIS TRANSACTION FAIL FAILS TO CLOSE SOLELY AS A RESULT COMPLETE THE PURCHASE OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLERPROPERTY IS AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE REMEDYREMEDY (WHETHER AT LAW OR IN EQUITY), IS ENTITLED AN AMOUNT EQUAL TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF AND ALL INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SAID AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREIN EXPRESSLY WAIVED BY SELLER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND (IV) ALL TITLE COMPANY 1677. BUYER AND SELLER HEREBY WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON DEFAULT BY BUYER, THIS AGREEMENT SHALL TERMINATE AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND/OR ESCROW AGENT CANCELLATION CHARGESHOLDER. NOTWITHSTANDING THE FOREGOING, IF ANY, THE PROVISIONS OF THIS SECTION 13.2 SHALL BE CHARGED TO NOT LIMIT BUYER.'S OBLIGATIONS UNDER SECTION 14.2 BELOW OR SELLER'S RIGHTS UNDER SECTION 14.8 BELOW. ________________ _________________ BUYER'S INITIALS SELLER'S INITIALS
Appears in 1 contract
Sources: Participation and Put Option Agreement (Inktomi Corp)
Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT THAT THE CLOSE OF ESCROW AND THIS TRANSACTION FAIL FAILS TO OCCUR DUE TO A BUYER DEFAULT (ALL OF THE CONDITIONS TO BUYER’S OBLIGATIONS TO CLOSE SOLELY AS A RESULT HAVING BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT WHICH WILL, DUE TO THE SPECIAL NATURE OF THE DEFAULT TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIXASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON THE PARTIES THEREFORE AGREE THAT POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THAT THE CLOSE OF ESCROW FAILS TO OCCUR DUE TO A BUYER DEFAULT, AND THIS TRANSACTION FAIL WISHES TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER INDUCE SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE PERFORMANCE EVENT OF ITS OBLIGATIONS HEREUNDER, A BUYER DEFAULT. BUYER AND SELLER, AS SELLER'S SOLE AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN AGREE THAT THE AMOUNT OF THE DEPOSIT (EXCLUSIVE REPRESENTS A REASONABLE ESTIMATE OF INTEREST AND DIVIDENDS EARNED THEREON). THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT THE CLOSE OF ESCROW FAILS TO CLOSE SOLELY AS OCCUR DUE TO A RESULT OF BUYER'S BUYER DEFAULT, THEN (I) TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO BUYER AND ESCROW HOLDER, CANCEL THE RIGHTS ESCROW AND RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES. SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY. NOTHING IN THIS SECTION 13.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SECTION 12.4 HEREOF. SELLER HEREUNDER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE ESCROW CREATED HEREBY PROVISIONS OF THIS SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. Seller’s Initials: C.J.S. NOTHING IN THIS SECTION 13.1 SHALL TERMINATE, (IIA) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE PREVENT OR PRECLUDE ANY RECOVERY OF INTEREST AND DIVIDENDS EARNED THEREON) TO ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SELLER'S INSTRUCTIONS, SECTION 15.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF BUYER CONTAINED IN SECTION 4.3.1 AND SECTION 12.4 HEREOF. SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE SAME SHALL PROVISIONS OF THIS SECTION 13.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.BOUND BY ITS TERMS. Buyer’s Initials: M.P.O.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
Default by Buyer. IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIXFIX AND THAT THE AMOUNT OF THE DEPOSIT REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES. THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER AND SELLER IS READY, WILLING, AND ABLE TO PERFORM ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULTDEFAULT AND SELLER IS READY, WILLING, AND ABLE TO PERFORM ITS OBLIGATIONS HEREUNDER, THEN (I1) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II2) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO BUYER.,
Appears in 1 contract
Default by Buyer. IN THE EVENT THAT THE ESCROW CLOSING AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT THE CONSUMMATION OF THE TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENTBUYER, BUYER AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES IT WOULD BE IMPRACTICABLE OR IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX. ESTIMATE THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY SUFFERED BY SELLER AS A RESULT OF BUYER'S DEFAULT’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, THEN (I) AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE; PROVIDED, HOWEVER THAT THIS PROVISION WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES, NOR WAIVE OR AFFECT OR LIMIT BUYER’S RELEASE OR INDEMNITY OBLIGATIONS AND THE SELLER’S RIGHTS TO THOSE RELEASE AND INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, NOR WAIVE OR AFFECT BUYER’S OBLIGATIONS TO RETURN OR PROVIDE TO SELLER DOCUMENTS, REPORTS OR OTHER INFORMATION PROVIDED TO OR PREPARED BY OR FOR BUYER PURSUANT TO APPLICABLE PROVISIONS OF THIS AGREEMENT. THEREFORE, BUYER AND SELLER HEREUNDER DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND PURCHASE OF THE PROPERTY IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY AN AMOUNT EQUAL TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF WHICH INCLUDES ANY ACCRUED INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL ). SAID AMOUNT WILL BE THE FULL, AGREED AND LIQUIDATED DAMAGESDAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA. CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON DEFAULT BY BUYER, THIS AGREEMENT WILL BE TERMINATED AND, EXCEPT FOR BUYER’S INDEMNITY AND OTHER SPECIFIC OBLIGATIONS REFERRED TO HEREIN WHICH MAY BE ENFORCED BY SELLER (IV) ALL TITLE COMPANY IN ADDITION TO COLLECTION AND RETENTION BY SELLER OF BUYER’S DEPOSIT AS PROVIDED HEREUNDER), NEITHER PARTY WILL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW AGENT CANCELLATION CHARGESHOLDER, IF ANY, SHALL BE CHARGED OR TO BUYER.EXERCISE ITS RIGHTS AND REMEDIES UNDER SURVIVING INDEMNITY PROVISIONS. Buyer’s Initials: Stephen Coree Seller’s Initials: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Appears in 1 contract
Sources: Purchase and Sale Agreement (TNP Strategic Retail Trust, Inc.)
Default by Buyer. IN THE EVENT THE SALE OF THE PROPERTY AS CONTEMPLATED HEREUNDER IS NOT CONSUMMATED DUE TO ANY DEFAULT BY BUYER HEREUNDER, THE DEPOSIT (INCLUDING ALL INTEREST EARNED FROM THE INVESTMENT THEREOF) SHALL BE PAID TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT THAT THE ESCROW SALE IS NOT CONSUMMATED WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY SEPARATELY EXECUTING THIS SECTION 6.1, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT AND THIS TRANSACTION FAIL TO CLOSE SOLELY ANY INTEREST THEREON HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS A RESULT THE PARTIES’ REASONABLE ESTIMATE OF THE DEFAULT OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, AGAINST BUYER IN THE EVENT THE CLOSING DOES NOT OCCUR, INCLUDING ANY RIGHT IN EQUITY TO SEEK SPECIFIC PERFORMANCE HEREOF, AND IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 6.1
(1) LIMIT THE DAMAGES RECOVERABLE BY MPG UNDER THE FRAMEWORK AGREEMENT OR MPG’S RIGHT TO EXERCISE ANY AND ALL OF ITS OBLIGATIONS UNDER REMEDIES THEREUNDER; OR (2) LIMIT THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER PARTY DUE TO (A) THE OTHER PARTY’S OBLIGATION TO INDEMNIFY SUCH PARTY IN ACCORDANCE HEREWITH, OR (B) THIRD PARTY CLAIMS. IN ADDITION, BUYER SHALL PAY ALL TITLE, SURVEY AND ESCROW CANCELLATION CHARGES. BY THEIR SEPARATELY EXECUTING THIS AGREEMENTSECTION 6.1, BUYER AND SELLER AGREE ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX. THEY HAVE READ AND UNDERSTOOD THE PARTIES THEREFORE AGREE THAT IN THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY AS A RESULT OF THE DEFAULT OF BUYER IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY, IS ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON). IN THE EVENT ESCROW FAILS TO CLOSE SOLELY AS A RESULT OF BUYER'S DEFAULT, THEN (I) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER HEREUNDER AND THE ESCROW CREATED HEREBY SHALL TERMINATE, (II) ESCROW AGENT SHALL, AND IS HEREBY AUTHORIZED AND INSTRUCTED TO, RETURN PROMPTLY TO BUYER AND SELLER ALL DOCUMENTS AND INSTRUMENTS TO THE PARTIES WHO DEPOSITED THE SAME, (III) ESCROW AGENT SHALL DELIVER THE DEPOSIT (EXCLUSIVE OF INTEREST AND DIVIDENDS EARNED THEREON) TO SELLER PURSUANT TO SELLER'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND ABOVE PROVISION COVERING LIQUIDATED DAMAGES, AND (IV) ALL TITLE COMPANY AND ESCROW AGENT CANCELLATION CHARGES, IF ANY, SHALL BE CHARGED TO THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS EXECUTED. SELLER’S INITIALS BUYER.’S INITIALS /s/ JLA /s/ JB
Appears in 1 contract
Sources: Purchase and Sale Agreement (MPG Office Trust, Inc.)