Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
Appears in 1 contract
Sources: Real Estate Sale Agreement (First Capital Institutional Real Estate LTD 2)
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PURCHASER PURSUANT TO SECTION 3.1.4 AND SECTION 3.1.7 HEREOF AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO PENALTY OR A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESFORFEITURE.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF AFTER THE EXPIRATION OF THE DUE DILIGENCE PERIOD, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) FAILS TO CLOSE THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE PURCHASE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FOR ANY REASON OTHER THAN SELLER’S DEFAULT, A FAILURE OF CLOSING A PURCHASER’S CONDITION PRECEDENT OR AS EXPRESSLY PROVIDED IN SECTION 18 HEREOF, SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO OCCUR DUE TO TERMINATE THIS AGREEMENT AND RECEIVE FROM ESCROW COMPANY THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT OF BY PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY THAT UNDER THIS AGREEMENT TO THE CIRCUMSTANCES EXISTING AS OF THE EXECUTION DATE THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN DEPOSIT REPRESENTS THE EVENT PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES. THIS AGREEMENT IS TERMINATED SECTION 19(b) WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT OF REASONABLE ATTORNEYS’ FEES OR COSTS, NOR WAIVE OR AFFECT PURCHASER’S INDEMNITY OBLIGATIONS AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.SELLER’S
Appears in 1 contract
Purchaser Default. If (i) Purchaser fails to perform in accordance with In the terms event of material non-performance, default or breach of this AgreementAgreement by Purchaser that results in the failure to consummate this Agreement (a “Purchaser Default”), (ii) Seller is not in material default hereunderthen Sellers may, at their sole option and (iii) as their sole remedy, take any of the Closing does not occur, following courses of action:
19.3.1 terminate this Agreement and draw upon the ▇▇▇▇▇▇▇ Money may be retained by Seller L/C as liquidated and agreed upon damages and damages, as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) abovefollows: IF PURCHASER DEFAULTS IN ITS OBLIGATIONS UNDER THIS AGREEMENT RESULTING IN A FAILURE TO CLOSE THE TRANSACTION ON OR BEFORE THE OUTSIDE CLOSING DATE, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this AgreementTHEN PURCHASER AGREES THAT SELLERS WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT WHICH ARE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN OR QUANTIFY. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS SELLERS, IN A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP EFFORT TO ASCERTAIN SELLERS’ DAMAGES, HAVE AGREED BY PLACING THEIR INITIALS BELOW THAT AN AMOUNT EQUAL TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE FULL AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY L/C SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLERS’ DAMAGES UNDER APPLICABLE LAW, INCLUDING CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1671. ACCORDINGLY, IF PURCHASER SO DEFAULTS IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER ITS OBLIGATIONS UNDER THIS AGREEMENT; AND (4) , SELLERS SHALL HAVE THE RIGHT TO DRAW DOWN THE FULL AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID L/C AS LIQUIDATED DAMAGES. Initials for Seller Initials for Purchaser; or
19.3.2 enforce specific performance of this Agreement and the transaction provided for herein according to the terms hereof by all means available at law or in equity.
Appears in 1 contract
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF PURCHASER DEFAULTS IN ITS OBLIGATION TO CLOSE THE PURCHASE OF THE PROPERTY ON THE CLOSING DATE, SELLER’S SOLE REMEDY (SUBJECT TO THE PROVISO IN SECTION 18(a)(iii)) SHALL BE TO RETAIN THE DEPOSIT AS FULL, AGREED AND LIQUIDATED DAMAGES, AND SELLER’S RETENTION OF THE DEPOSIT SHALL BE SELLER’S SOLE REMEDY WITH RESPECT TO SUCH PURCHASER DEFAULT.
(ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT IN THE EVENT OF A DEFAULT BY PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) IN ITS OBLIGATION TO CLOSE THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE PURCHASE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND ON THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE DATE, SELLER’S ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL OR IMPRACTICABLE TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO ASCERTAIN, THAT THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT REPRESENTS THE PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES, AND THAT SUCH AMOUNT IS NOT UNREASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS AGREEMENT WAS MADE WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: SELLER WILL INCUR ADMINISTRATIVE COSTS IN THE EVENT NEGOTIATION AND REVIEW OF THIS AGREEMENT AND OTHER DOCUMENTS RELATING TO THIS TRANSACTION, AND WILL INCUR DAMAGES BY WITHDRAWING THE PROPERTY FROM THE OPEN MARKET. THE PAYMENT OF SUCH AMOUNTS AS LIQUIDATED DAMAGES IS TERMINATED NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369.
(iii) IF PURCHASER DEFAULTS IN ITS OBLIGATION TO CLOSE THE PURCHASE OF THE PROPERTY ON THE CLOSING DATE AND TITLE COMPANY THEN HOLDS ANY PORTION OF THE TRANSACTION CONTEMPLATED DEPOSIT THEN, PROMPTLY UPON RECEIPT OF A WRITTEN NOTICE FROM SELLER (A COPY OF WHICH NOTICE SELLER SHALL SEND TO PURCHASER), TITLE COMPANY (NOTWITHSTANDING ANY CONFLICTING INSTRUCTION THAT PURCHASER MAY DELIVER TO TITLE COMPANY BUT SUBJECT TO TITLE COMPANY’S LEGAL RIGHTS OF INTERPLEADER) SHALL DISBURSE TO SELLER, IN IMMEDIATELY AVAILABLE FUNDS, SUCH AMOUNT THEN HELD BY TITLE COMPANY. SELLER SHALL HAVE NO OTHER REMEDY AT LAW FOR PURCHASER’S DEFAULT IN ITS OBLIGATION TO PURCHASE THE PROPERTY ON THE CLOSING DATE, PROVIDED THAT THE PROVISIONS OF THIS SECTION 18(a) SHALL NOT LIMIT ANY OF SELLER’S (A) EQUITABLE RIGHTS OR REMEDIES AGAINST PURCHASER FOR BREACH OF THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OR (B) RIGHTS AND REMEDIES AGAINST PURCHASER ARISING OUT OF PURCHASER UNDER PURCHASER’S INDEMNITY, RESTORATION OR CONFIDENTIALITY OBLIGATIONS CONTAINED IN THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.. SELLER’S INITIALS: PURCHASER’S INITIALS:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sunstone Hotel Investors, Inc.)
Purchaser Default. If (i) In the event Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto close or defaults under or breaches any other than those rights that survive a termination of obligations imposed on Purchaser under this Agreement as provided herein and Seller's rights or under the Confidentiality Agreement. If Purchaser is required Lease, then Seller shall be entitled to but does not deposit with the Escrowee (and shall) receive the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) abovefixed and liquidated damages, and Purchaser and Seller shall cause the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as Title Company to immediately deliver the ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights , and remedies provided in thereafter, this Agreement shall terminate and neither party shall have any further liability hereunder, except for those liabilities which expressly survive the termination of this Agreement. Seller shall have no other remedy for any default by Purchaser, including any right to damages. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT THAT: (1) THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR HAVE OCCURRED DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESDAMAGES FOR A DEFAULT OF PURCHASER UNDER THIS AGREEMENT. Purchaser and Seller agree that any remedies provided for pursuant to this Agreement for a default of Purchaser shall be in addition to any remedies of Seller set forth in the Lease, and any termination of this Agreement pursuant to the terms hereof shall not cause a termination of the Lease. In the event that Purchaser has defaulted pursuant to this Agreement or the Lease, then Purchaser shall have no further right to exercise the Purchase Option, notwithstanding any provision in the Lease. All of the foregoing shall be without limitation upon the rights and remedies of Seller hereunder, at law or in equity in the event of a default by Purchaser pursuant to Sections 5, 16, 17, 18, 22.8, and 22.9, or any covenant, agreement, indemnity, representation or warranty of Purchaser that survives the Closing or the termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cybex International Inc)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF PURCHASER FAILS TO ACQUIRE THE PROPERTIES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT FOR ANY REASON, (ii) Seller is not in material default hereunderEXCEPT SELLER'S DEFAULT IN ITS OBLIGATIONS TO SELL AND CONVEY THE PROPERTIES TO PURCHASER PURSUANT TO THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT BY PURCHASER OR SELLER PURSUANT TO SECTIONS 8 AND 9 OF THIS AGREEMENT, and (iii) the Closing does not occurRESPECTIVELY, the THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, MAY TERMINATE THIS AGREEMENT AND RECEIVE THE ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementMONEY AS LIQUIDATED DAMAGES BUT ONLY UPON SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 38. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND THE PARTIES AGREE THAT (1) SELLER WILL SUFFER DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES, AFTER DUE NEGOTIATION, AGREE THAT THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF SELLER'S LOSS IN THE EVENT OF PURCHASER'S DEFAULT. THUS, SELLER SHALL ACCEPT AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF RETAIN THE ▇▇▇▇▇▇▇ MONEY AS LIQUIDATED DAMAGES BUT NOT AS A PENALTY. SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY. IN THE EVENT THIS AGREEMENT SELLER IS TERMINATED AND ENTITLED TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) ▇▇▇▇▇▇▇ MONEY AS LIQUIDATED DAMAGES, THE ▇▇▇▇▇▇▇ MONEY SHALL BE PAID TO SELLER BY THE TITLE COMPANY ON THE NEXT BUSINESS DAY AFTER RECEIPT OF (1) WRITTEN NOTICE FROM SELLER THAT PURCHASER HAS DEFAULTED UNDER THIS AGREEMENT AND CONSTITUTE VALID (2) THE RELEASES REQUIRED BY SECTION 38 HEREOF, AND PURCHASER AGREES TO TAKE ALL SUCH ACTIONS AND EXECUTE AND DELIVER ALL SUCH DOCUMENTS NECESSARY OR APPROPRIATE TO EFFECT SUCH PAYMENT. BY PLACING THEIR INITIALS IMMEDIATELY BELOW, PURCHASER AND SELLER FURTHER AGREE THAT THE ▇▇▇▇▇▇▇ MONEY PAID HEREUNDER IS A REASONABLE SUM FOR LIQUIDATED DAMAGES.DAMAGES CONSIDERING ALL CIRCUMSTANCES AS OF THE DATE OF THIS AGREEMENT. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FOREFETURE OR PENALTY. NOTHING IN THIS SECTION 21(b) SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF ATTORNEYS’ FEES OR OTHER COSTS INCURRED BY SELLER PURSUANT TO SECTION 26 (BUT SPECIFICALLY EXCLUDING ATTORNEYS’ FEES INCURRED IN CONNECTION WITH NEGOTIATING THIS AGREEMENT PRIOR TO THE EFFECTIVE DATE) OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATIONS OF PURCHASER CONTAINED IN SECTIONS 13(d) AND 22(b) HEREOF. SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 21(b) AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. Seller’s Initials: _/s/ KH_ Purchaser’s Initials: _/s/ RL_
Appears in 1 contract
Sources: Purchase and Sale Agreement (NorthStar Healthcare Income, Inc.)
Purchaser Default. If IF PURCHASER SHALL DEFAULT IN ITS OBLIGATION TO ACQUIRE THE PROPERTY ON THE CLOSING DATE PURSUANT TO THIS AGREEMENT (i) Purchaser fails to perform in accordance with the terms of this AgreementA “PURCHASER CLOSING DEFAULT”), (ii) Seller is not in material default hereunderTHEN SO LONG AS SELLER IS NOT THEN IN DEFAULT UNDER THIS AGREEMENT, and (iii) the Closing does not occurTHE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE BOTH PARTIES SHALL BE RELIEVED OF AND BEARS A REASONABLE RELATIONSHIP TO RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE SURVIVING OBLIGATIONS. THE PARTIES HAVE DISCUSSED AND NEGOTIATED IN GOOD FAITH UPON THE QUESTION OF THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN IN THE PROPERTY FROM SALE AND EVENT THE FAILURE OF CLOSING TO DOES NOT OCCUR DUE TO A DEFAULT OF BECAUSE PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER BREACHES THIS AGREEMENT WOULD AND HAVE ENDEAVORED TO REASONABLY ESTIMATE SUCH DAMAGES AND THEY AGREE THAT (I) SUCH DAMAGES ARE AND WILL BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, AND IMPRACTICAL TO DETERMINE; (3II) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN DEPOSIT (AS IT MAY BE INCREASED FROM TIME TO TIME) ARE AND WILL BE REASONABLE. THE EVENT THIS AGREEMENT IS TERMINATED PARTIES ACKNOWLEDGE AND AGREE THAT THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT PAYMENT OF PURCHASER LIQUIDATED DAMAGES UNDER THIS AGREEMENT; SECTION 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 (4) 1677. IN ACCORDANCE WITH CALIFORNIA CIVIL CODE SECTION 1677, THE ▇▇▇▇▇▇▇ MONEY SHALL BE TEXT OF THIS LIQUIDATED DAMAGES PROVISION HAS BEEN PROVIDED IN BOLD TYPE, AND CONSTITUTE VALID LIQUIDATED DAMAGESA DULY AUTHORIZED REPRESENTATIVE OF EACH PARTY HAS INITIALED THIS PROVISION AS SHOWN IMMEDIATELY BELOW.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Purchaser Default. If IF PURCHASER DEFAULTS IN ITS OBLIGATIONS HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementDELIVER THE INITIAL DEPOSIT OR ADDITIONAL DEPOSIT (OR ANY OTHER DEPOSIT OR PAYMENT REQUIRED OF PURCHASER HEREUNDER), (iiB) Seller is not in material default hereunderDELIVER TO SELLERS THE DELIVERIES SPECIFIED UNDER SECTION 5.3 ON THE DATE REQUIRED THEREUNDER, and OR (iiiC) the Closing does not occurDELIVER THE PURCHASE PRICE FOR EACH PROPERTY AT THE TIME REQUIRED BY SECTION 2.2.4 AND CLOSE ON THE PURCHASE OF THE PROPERTIES ON THE CLOSING DATE, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementTHEN, IMMEDIATELY AND WITHOUT NOTICE OR CURE, PURCHASER SHALL FORFEIT THE DEPOSIT, AND THE ESCROW AGENT SHALL DELIVER THE APPLICABLE SHARE OF THE DEPOSIT TO THE APPLICABLE SELLER, AND NEITHER PARTY SHALL BE OBLIGATED TO PROCEED WITH THE PURCHASE AND SALE OF THE PROPERTIES. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) aboveIF PURCHASER DEFAULTS IN ANY OF ITS OTHER REPRESENTATIONS, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this AgreementWARRANTIES OR OBLIGATIONS UNDER THIS CONTRACT, AND SUCH DEFAULT CONTINUES FOR MORE THAN 10 DAYS AFTER WRITTEN NOTICE FROM SELLER'S REPRESENTATIVE, THEN PURCHASER SHALL FORFEIT THE DEPOSIT, AND THE ESCROW AGENT SHALL DELIVER THE APPLICABLE SHARE OF THE DEPOSIT TO THE APPLICABLE SELLER, AND NEITHER PARTY SHALL BE OBLIGATED TO PROCEED WITH THE PURCHASE AND SALE OF THE PROPERTIES. THE DEPOSIT IS LIQUIDATED DAMAGES AND RECOURSE TO THE DEPOSIT IS, EXCEPT FOR PURCHASER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, SELLERS' SOLE AND EXCLUSIVE REMEDY FOR PURCHASER'S FAILURE TO PERFORM ITS OBLIGATION TO PURCHASE THE PROPERTIES OR BREACH OF A REPRESENTATION OR WARRANTY. SELLERS EXPRESSLY WAIVE THE REMEDIES OF SPECIFIC PERFORMANCE AND ADDITIONAL DAMAGES FOR SUCH DEFAULT BY PURCHASER. SELLERS AND PURCHASER ACKNOWLEDGE THAT SELLERS' DAMAGES WOULD BE DIFFICULT TO DETERMINE, AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE SELLERS' DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY RESULTING FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF BY PURCHASER UNDER IN ITS OBLIGATION TO PURCHASE THE PROPERTIES. SELLERS AND PURCHASER FURTHER AGREE THAT THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED SECTION 10.1 IS INTENDED TO AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLERS, AND SHALL BE SELLERS' EXCLUSIVE REMEDY AGAINST PURCHASER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR RELATED TO A BREACH BY PURCHASER OF ITS OBLIGATION TO CONSUMMATE THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE CONTRACT, OTHER THAN WITH RESPECT TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; PURCHASER'S INDEMNITY AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.CONFIDENTIALITY OBLIGATIONS HEREUNDER. _________________________ _________________________ SELLER'S INITIALS PURCHASER'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Contract (Century Properties Growth Fund Xxii)
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PURCHASER THAT SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO PENALTY OR A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESFORFEITURE.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF PURCHASER’S DEFAULT HEREUNDER, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE THEN THIS AGREEMENT SHALL TERMINATE AND THE FAILURE RETENTION OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER THE DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, SUBJECT TO THE SURVIVING OBLIGATIONS; (2) THE ACTUAL PROVIDED, HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER’S RIGHTS OR DAMAGES SUFFERED AND COSTS INCURRED UNDER ANY INDEMNITIES GIVEN BY PURCHASER TO SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO AGREEMENT. IN CONNECTION WITH THE AMOUNT OF FOREGOING, THE ▇▇▇▇▇▇▇ MONEY PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN THE EVENT THIS AGREEMENT IS TERMINATED AND CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO A DEFAULT ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY PURCHASER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF PURCHASER’S BREACH OR DEFAULT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE. 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. FURTHERMORE, EXCEPT FOR PURCHASER’S RIGHT TO SPECIFICALLY ENFORCE THIS AGREEMENT PURSUANT TO SECTION 9.1, PURCHASER SHALL HAVE NO RIGHT TO SEEK DECLARATORY AND/OR INJUNCTIVE RELIEF AND/OR EQUITABLE RELIEF, OR TO RECORD A NOTICE OF THIS AGREEMENT OR ANY RIGHTS IT MAY HAVE HEREUNDER, OR TO RECORD OR FILE A NOTICE OF PENDENCY OF ANY ACTION OR PROCEEDINGS TO ENFORCE THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.. Initial here: /s/ EC Initial here: /s/ WP
Appears in 1 contract
Sources: Contract of Sale (Bebe Stores, Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with In the terms event of non-performance, default or breach of this AgreementAgreement by Purchaser that results in the failure to consummate this Agreement (a "PURCHASER DEFAULT"), (ii) then Seller is not in material default hereundermay, at its sole option and (iii) as its sole remedy, take any of the Closing does not occurfollowing courses of action:
13.1.1 terminate this Agreement and collect liquidated damages, the as follows: IF PURCHASER DEFAULTS IN ITS OBLIGATION TO PURCHASE THE ASSETS ON OR BEFORE THE OUTSIDE CLOSING DATE, THEN PURCHASER AGREES THAT SELLER WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT WHICH ARE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN OR QUANTIFY. PURCHASER AND SELLER, IN A REASONABLE EFFORT TO ASCERTAIN SELLER'S DAMAGES, HAVE AGREED BY PLACING THEIR INITIALS BELOW THAT AN AMOUNT EQUAL TO THE EARNEST MONEY DEPOSIT IN CASH SHALL BE DEEMED TO CONSTITUTE A REASONAB▇▇ ▇▇▇▇▇▇MATE OF SELLER'S DAMAGES UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1671. ACCORDINGLY, IF PURCHASER DEFAULTS IN ITS OBLIGATION TO PURCHASE THE ASSETS, SELLER 40 SHALL HAVE THE RIGHT TO RETAIN THE EARNEST MONEY DEPOSIT AS LIQUIDATED DAMAGES. /s/ MS▇ Money may be retained by /s/ SLL ------------------- ----------------------- Initials for Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination Initials for Purchaser; or
13.1.2 enforce specific performance of this Agreement as and the transaction provided for herein and Seller's rights under according to the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided terms hereof by all means available at law or in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESequity.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Valero Energy Corp/Tx)
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PURCHASER PURSUANT TO SECTION 3.1.4 AND SECTION 3.1.7 HEREOF AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER’S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT PENALTY OR A FORFEITURE. NOTWITHSTANDING THE FOREGOING, ANY CONFLICT BETWEEN THE PROVISIONS OF HAVING WITHDRAWN THE PROPERTY FROM SALE THIS SECTION AND THE FAILURE OF CLOSING TO OCCUR DUE SECTION 5.1.5 WITH REGARD TO A DEFAULT BREACH OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SELLER’S REPRESENTATIONS OR WARRANTIES SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESRESOLVED BY THE PROVISIONS OF SECTION 5.1.5.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Griffin Capital Essential Asset REIT, Inc.)
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PURCHASER PURSUANT TO SECTION 3.1.7 HEREOF AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO PENALTY OR A FORFEITURE. /s/ TW__________________ /s/ JP_________________ Purchaser's Seller's Initials 10.2 SELLER DEFAULT. IF SELLER SHALL BECOME IN BREACH OR DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE ▇▇▇▇▇▇▇ MONEY CURE PERIOD, IF ANY, PROVIDED IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.SECTION 11.6 HEREOF,
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF PURCHASER’S DEFAULT HEREUNDER, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE THEN THIS AGREEMENT SHALL TERMINATE AND THE FAILURE RETENTION OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER THE DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, SUBJECT TO THE SURVIVING OBLIGATIONS; (2) THE ACTUAL PROVIDED, HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER’S RIGHTS OR DAMAGES SUFFERED AND COSTS INCURRED UNDER ANY INDEMNITIES GIVEN BY PURCHASER TO SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO AGREEMENT. IN CONNECTION WITH THE AMOUNT OF FOREGOING, THE ▇▇▇▇▇▇▇ MONEY PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN THE EVENT THIS AGREEMENT IS TERMINATED AND CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO A DEFAULT ASCERTAIN THE EXTENT OF DETRIMENT TO SELLER CAUSED BY THE BREACH BY PURCHASER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF PURCHASER’S BREACH OR DEFAULT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE. 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. FURTHERMORE, EXCEPT FOR PURCHASER’S RIGHT TO SPECIFICALLY ENFORCE THIS AGREEMENT PURSUANT TO SECTION 9.1, PURCHASER SHALL HAVE NO RIGHT TO SEEK DECLARATORY AND/OR INJUNCTIVE RELIEF AND/OR EQUITABLE RELIEF, OR TO RECORD A NOTICE OF THIS AGREEMENT OR ANY RIGHTS IT MAY HAVE HEREUNDER, OR TO RECORD OR FILE A NOTICE OF PENDENCY OF ANY ACTION OR PROCEEDINGS TO ENFORCE THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.. Seller: Purchaser: Initial here: /s/ EC Initial here: /s/ WP
Appears in 1 contract
Sources: Contract of Sale
Purchaser Default. If NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF THE CLOSING FAILS TO OCCUR DUE TO PURCHASER’S DEFAULT UNDER THE TERMS OF THIS AGREEMENT, THE DEPOSIT SHALL BE PAID TO SELLER AS LIQUIDATED DAMAGES (i) Purchaser fails to perform in accordance with the terms of this AgreementWHICH SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST PURCHASER FOR PURCHASER’S FAILURE TO PURCHASE THE PROPERTY), (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAT WHICH TIME THIS AGREEMENT SHALL TERMINATE. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER SELLER ACKNOWLEDGES AND SELLER ACKNOWLEDGE AND AGREE AGREES THAT (1) THE ▇▇▇▇▇▇▇ MONEY AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR HAVE OCCURRED DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY AMOUNT OF THE DEPOSIT SHALL BE AND CONSTITUTE REASONABLE AND VALID LIQUIDATED DAMAGES. THE PARTIES AGREE THAT THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369 BUT SHALL BE TREATED AS LIQUIDATED DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO LIMIT PURCHASER’S LIABILITY TO SELLER, IF ANY, (A) WITH RESPECT TO ANY INDEMNIFICATION OR OTHER PROVISION OF THIS AGREEMENT THAT EXPRESSLY SURVIVES THE CLOSING OR TERMINATION OF THIS AGREEMENT (INCLUDING THE RIGHT TO REIMBURSEMENT FOR LEGAL AND OTHER COSTS OF ENFORCEMENT), AND SELLER SHALL RETAIN ALL RIGHTS AND REMEDIES, AT LAW OR IN EQUITY, WITH RESPECT TO THOSE PROVISIONS, AND (B) IN THE EVENT THAT, FOLLOWING ANY TERMINATION OF THIS AGREEMENT, PURCHASER OR ANY PARTY AFFILIATED WITH PURCHASER, ASSERTS ANY CLAIMS OR RIGHTS TO THE PROPERTY THAT MIGHT DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY OR OTHERWISE IMPEDE OR DELAY A SUBSEQUENT SALE OF THE PROPERTY.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Realty Trust, Inc.)
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 12.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR OBLIGATIONS OF PURCHASER THAT SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH OBLIGATIONS PURSUANT TO SECTION 12.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT PENALTY OR A FORFEITURE. NOTWITHSTANDING THE FOREGOING, ANY CONFLICT BETWEEN THE PROVISIONS OF HAVING WITHDRAWN THE PROPERTY FROM SALE THIS SECTION AND THE FAILURE OF CLOSING TO OCCUR DUE SECTION 5.1.2 WITH REGARD TO A DEFAULT BREACH OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SELLER’S REPRESENTATIONS OR WARRANTIES SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESRESOLVED BY THE PROVISIONS OF SECTION 5.1.2.
Appears in 1 contract
Sources: Purchase and Sale Agreement (HC Government Realty Trust, Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with In the terms event of non-performance, default or breach of this AgreementAgreement by Purchaser that results in the failure to consummate this Agreement (a "PURCHASER DEFAULT"), (ii) then Seller is not in material default hereundermay, at its sole option and (iii) as its sole remedy, take any of the Closing does not occurfollowing courses of action:
13.1.1 terminate this Agreement and collect liquidated damages, the as follows: IF PURCHASER DEFAULTS IN ITS OBLIGATION TO PURCHASE THE ASSETS ON OR BEFORE THE OUTSIDE CLOSING DATE, THEN PURCHASER AGREES THAT SELLER WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT WHICH ARE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN OR QUANTIFY. PURCHASER AND SELLER, IN A REASONABLE EFFORT TO ASCERTAIN SELLER'S DAMAGES, HAVE AGREED BY PLACING THEIR INITIALS BELOW THAT AN AMOUNT EQUAL TO THE EARNEST MONEY DEPOSIT IN CASH SHALL BE DEEMED TO CONSTITUTE A REASONA▇▇▇ ▇▇▇▇▇▇▇ Money may be retained by IMATE OF SELLER'S DAMAGES UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1671. ACCORDINGLY, IF PURCHASER DEFAULTS IN ITS OBLIGATION TO PURCHASE THE ASSETS, SELLER 40 SHALL HAVE THE RIGHT TO RETAIN THE EARNEST MONEY DEPOSIT AS LIQUIDATED DAMAGES. /s/ MSC /s/ SLL ------------------- ----------------------- Initials for Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination Initials for Purchaser; or
13.1.2 enforce specific performance of this Agreement as and the transaction provided for herein and Seller's rights under according to the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided terms hereof by all means available at law or in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESequity.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Tesoro Petroleum Corp /New/)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND IF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES SHALL NOT CLOSE DUE BE CLOSED BY REASON OF PURCHASER’S DEFAULT UNDER THIS AGREEMENT, THEN THIS AGREEMENT SHALL TERMINATE AND THE RETENTION OF THE DEPOSIT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, SUBJECT TO A DEFAULT THE SURVIVING OBLIGATIONS, PROVIDED, HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER’S RIGHTS OR DAMAGES UNDER ANY INDEMNITIES GIVEN BY PURCHASER TO SELLER UNDER SECTIONS 4.2.1, 4.2.2, OR 10.1 OF THIS AGREEMENT. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLER WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROPERTY WILL 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 PURCHASER UNDER THIS AGREEMENT AND THE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OF PURCHASER’S BREACH OR DEFAULT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE. 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. EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM PURCHASER AND THE INDEMNIFICATION RIGHTS SET FORTH IN SECTION 8 OF THIS AGREEMENT; . PURCHASER FURTHER SPECIFICALLY ACKNOWLEDGES AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.AGREES THAT EXCEPT FOR PURCHASER’S RIGHT TO SPECIFICALLY ENFORCE THIS AGREEMENT PURSUANT TO SECTION 9.1, PURCHASER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO SEEK DECLARATORY AND/OR INJUNCTIVE RELIEF AND/OR EQUITABLE RELIEF, OR TO RECORD A NOTICE OF THIS AGREEMENT OR ANY RIGHTS IT MAY HAVE HEREUNDER, OR TO RECORD OR FILE A NOTICE OF PENDENCY OF ANY ACTION OR PROCEEDINGS TO ENFORCE THIS AGREEMENT. THIS SECTION 9 IS NOT INTENDED TO WAIVE EITHER SELLER OR PURCHASER’S RIGHTS UNDER SECTION 10.10. PURCHASER’S INITIAL: ____ SELLER’S INITIAL: ____
Appears in 1 contract
Sources: Contract of Sale (KBS Strategic Opportunity REIT II, Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF AFTER THE EXPIRATION OF THE DUE DILIGENCE PERIOD, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) FAILS TO CLOSE THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE PURCHASE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FOR ANY REASON OTHER THAN SELLER’S DEFAULT, A FAILURE OF CLOSING A PURCHASER’S CONDITION PRECEDENT OR AS EXPRESSLY PROVIDED IN SECTION 18 HEREOF, SELLER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO OCCUR DUE TO TERMINATE THIS AGREEMENT AND RECEIVE FROM ESCROW COMPANY THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT OF BY PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY THAT UNDER THIS AGREEMENT TO THE CIRCUMSTANCES EXISTING AS OF THE EXECUTION DATE THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN DEPOSIT REPRESENTS THE EVENT PARTIES’ REASONABLE ESTIMATE OF SUCH DAMAGES. THIS AGREEMENT IS TERMINATED SECTION 19(b) WILL NOT LIMIT SELLER’S RIGHT TO RECEIVE REIMBURSEMENT OF REASONABLE ATTORNEYS’ FEES OR COSTS, NOR WAIVE OR AFFECT PURCHASER’S INDEMNITY OBLIGATIONS AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE SELLER’S RIGHTS TO A DEFAULT OF PURCHASER THOSE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT; AND (4) . THE ▇▇▇▇▇▇▇ MONEY SHALL PAYMENT OF THE DEPOSIT TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED TO BE AND A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE VALID LIQUIDATED DAMAGESDAMAGES TO SELLER.
Appears in 1 contract
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THAT PURCHASER SHOULD FAIL TO CONSUMMATE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT BY PURCHASER, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, MAY TERMINATE THIS AGREEMENT BY NOTIFYING PURCHASER THEREOF AND RECEIVE OR RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLER WILL SUFFER DAMAGES IN THE EVENT OF PURCHASER’S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH DAMAGES IS DIFFICULT <<page ends>> OR IMPOSSIBLE TO DETERMINE, THE PARTIES AGREE THAT THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S LOSS IN THE EVENT OF PURCHASER’S DEFAULT. THUS, SELLER SHALL ACCEPT AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES BUT NOT AS A PENALTY. SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER’S SOLE AND EXCLUSIVE REMEDY. PURCHASER ACKNOWLEDGES AND AGREES THAT NO TECHNICAL OR NON-MATERIAL DEFAULT BY SELLER UNDER THIS AGREEMENT SHALL IN ANY WAY AFFECT ANY RIGHTS OR REMEDIES OF SELLER AGAINST PURCHASER HEREUNDER. IN THE EVENT SELLER IS ENTITLED TO THE DEPOSIT AS LIQUIDATED DAMAGES AND TO THE EXTENT SELLER HAS NOT ALREADY RECEIVED THE DEPOSIT, THE DEPOSIT SHALL BE IMMEDIATELY PAID TO SELLER BY THE ESCROW HOLDER UPON RECEIPT OF WRITTEN NOTICE FROM SELLER THAT PURCHASER HAS DEFAULTED UNDER THIS AGREEMENT; , AND (4) PURCHASER AGREES TO TAKE ALL SUCH ACTIONS AND TO EXECUTE AND DELIVER ALL SUCH DOCUMENTS NECESSARY OR APPROPRIATE TO EFFECT SUCH PAYMENT. IN CONSIDERATION OF SELLER RECEIVING THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES, SELLER WILL BE DEEMED TO HAVE WAIVED ALL OF ITS CLAIMS AGAINST PURCHASER FOR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 14.B., IF PURCHASER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, AND, IN CONNECTION WITH THAT ACTION, RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL OR TRANSFER THE PROPERTY ("PURCHASER’S ACTION") (OTHER THAN AS PERMITTED IN SECTION 14.A ABOVE), SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION 14.B. FROM SEEKING EXPUNGEMENT OR RELIEF FROM THAT LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND RECOVERING DAMAGES, COSTS OR EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF PURCHASER’S ACTION, AND THE AMOUNT OF ANY SUCH DAMAGES AWARDED TO SELLER SHALL NOT BE LIMITED TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. FURTHERMORE, IN NO EVENT SHALL THIS SECTION 14.B. HAVE ANY APPLICATION TO OR LIMIT SELLER’S RIGHTS AGAINST PURCHASER IN CONNECTION WITH ANY OF THE FOLLOWING: (i) SECTION 15 OF THIS AGREEMENT, (ii) SECTION 18 OF THIS AGREEMENT, (iii) SECTION 26 OF THIS AGREEMENT, (iv) ANY DUTY OR OBLIGATION OF PURCHASER TO INDEMNIFY SELLER AS PROVIDED IN THIS AGREEMENT, OR (v) ANY MISREPRESENTATIONS BY PURCHASER. IF PURCHASER FAILS TO COMPLETE THE PURCHASE AS PROVIDED IN THIS AGREEMENT, SELLER SHALL HAVE NO RIGHT TO SPECIFICALLY ENFORCE THE PROVISIONS OF THIS AGREEMENT.
Appears in 1 contract
Sources: Agreement to Sell and Purchase (Maguire Properties Inc)
Purchaser Default. If (i) Purchaser fails to perform in accordance with In the terms event of material non-performance, default or breach of this AgreementAgreement by Purchaser that results in the failure to consummate this Agreement (a “Purchaser Default”), (ii) Seller is not in material default hereunderthen Sellers may, at their sole option and (iii) as their sole remedy, take any of the Closing does not occur, following courses of action:
19.3.1 terminate this Agreement and draw upon the ▇▇▇▇▇▇▇ Money may be retained by Seller L/C as liquidated and agreed upon damages and damages, as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) abovefollows: IF PURCHASER DEFAULTS IN ITS OBLIGATIONS UNDER THIS AGREEMENT RESULTING IN A FAILURE TO CLOSE THE TRANSACTION ON OR BEFORE THE OUTSIDE CLOSING DATE, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this AgreementTHEN PURCHASER AGREES THAT SELLERS WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT WHICH ARE IMPRACTICAL AND EXTREMELY DIFFICULT TO ASCERTAIN OR QUANTIFY. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS SELLERS, IN A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP EFFORT TO ASCERTAIN SELLERS’ DAMAGES, HAVE AGREED BY PLACING THEIR INITIALS BELOW THAT AN AMOUNT EQUAL TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE FULL AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY L/C SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLERS’ DAMAGES UNDER APPLICABLE LAW, INCLUDING CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1671. ACCORDINGLY, IF PURCHASER SO DEFAULTS IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER ITS OBLIGATIONS UNDER THIS AGREEMENT; AND (4) , SELLERS SHALL HAVE THE RIGHT TO DRAW DOWN THE FULL AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID L/C AS LIQUIDATED DAMAGES. or
19.3.2 enforce specific performance of this Agreement and the transaction provided for herein according to the terms hereof by all means available at law or in equity.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Pacific Energy Partners Lp)
Purchaser Default. If (i1) Purchaser fails to perform is in accordance with the terms material default or material ----------------- breach of its obligations under this Agreement, (ii2) Seller is not otherwise in material default or material breach hereunder, and (iii3) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreementherein. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Three Hundred Fifty Thousand and No/100 Dollars ($200,000300,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreementremedies. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A MATERIAL DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A MATERIAL DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A MATERIAL DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.. IN ADDITION, IN THE EVENT THAT SELLER FILES SUIT TO PURSUE PAYMENT OF SUCH ▇▇▇▇▇▇▇ MONEY AMOUNT AND SELLER IS THE PREVAILING PARTY AFTER ISSUANCE OF A FINAL, NON-APPEALABLE ORDER OF A COURT OF COMPETENT JURISDICTION, SELLER SHALL BE ENTITLED TO RECOVER FROM PURCHASER THE REASONABLE COSTS AND EXPENSES INCURRED BY SELLER TO FILE SUCH SUIT. IN THE EVENT THAT SELLER FILES SUIT TO PURSUE SUCH CLAIM AND SELLER IS NOT THE PREVAILING PARTY AFTER ISSUANCE OF A FINAL, NON-APPEALABLE ORDER OF A COURT OF COMPETENT JURISDICTION, PURCHASER SHALL BE ENTITLED TO RECOVER FROM SELLER THE REASONABLE COSTS AND EXPENSES INCURRED BY PURCHASER TO DEFEND SUCH SUIT. PURCHASER INITIALS: SELLER INITIALS: ___________________ _________________
Appears in 1 contract
Sources: Purchase and Sale Agreement (First Capital Income Properties LTD Series Viii)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THAT PURCHASER SHOULD FAIL TO CONSUMMATE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT BY PURCHASER, THEN SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, MAY TERMINATE THIS AGREEMENT BY NOTIFYING PURCHASER THEREOF AND RECEIVE OR RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. THE PARTIES AGREE THAT SELLER WILL SUFFER DAMAGES IN THE EVENT OF PURCHASER’S DEFAULT ON ITS OBLIGATIONS. ALTHOUGH THE AMOUNT OF SUCH DAMAGES IS DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE PARTIES AGREE THAT THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S LOSS IN THE EVENT OF PURCHASER’S DEFAULT. THUS, SELLER SHALL ACCEPT AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES BUT NOT AS A PENALTY. SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER’S SOLE AND EXCLUSIVE REMEDY. PURCHASER ACKNOWLEDGES AND AGREES THAT NO TECHNICAL OR NON-MATERIAL DEFAULT BY SELLER UNDER THIS AGREEMENT SHALL IN ANY WAY AFFECT ANY RIGHTS OR REMEDIES OF SELLER AGAINST PURCHASER HEREUNDER. IN THE EVENT SELLER IS ENTITLED TO THE DEPOSIT AS LIQUIDATED DAMAGES AND TO THE EXTENT SELLER HAS NOT ALREADY RECEIVED THE DEPOSIT, THE DEPOSIT SHALL BE IMMEDIATELY PAID TO SELLER BY THE ESCROW HOLDER UPON RECEIPT OF WRITTEN NOTICE FROM SELLER THAT PURCHASER HAS DEFAULTED UNDER THIS AGREEMENT; , AND (4) PURCHASER AGREES TO TAKE ALL SUCH ACTIONS AND TO EXECUTE AND DELIVER ALL SUCH DOCUMENTS NECESSARY OR APPROPRIATE TO EFFECT SUCH PAYMENT. IN CONSIDERATION OF SELLER RECEIVING THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES, SELLER WILL BE DEEMED TO HAVE WAIVED ALL OF ITS CLAIMS AGAINST PURCHASER FOR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 14.B., IF PURCHASER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED BREACH OR DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, AND, IN CONNECTION WITH THAT ACTION, RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER’S ABILITY TO SELL OR TRANSFER THE PROPERTY (“PURCHASER’S ACTION”) (OTHER THAN AS PERMITTED IN SECTION 14.A ABOVE), SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION 14.B. FROM SEEKING EXPUNGEMENT OR RELIEF FROM THAT LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND RECOVERING DAMAGES, COSTS OR EXPENSES (INCLUDING ATTORNEYS’ FEES) WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF PURCHASER’S ACTION, AND THE AMOUNT OF ANY SUCH DAMAGES AWARDED TO SELLER SHALL NOT BE LIMITED TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. FURTHERMORE, IN NO EVENT SHALL THIS SECTION 14.B. HAVE ANY APPLICATION TO OR LIMIT SELLER’S RIGHTS AGAINST PURCHASER IN CONNECTION WITH ANY OF THE FOLLOWING: (i) SECTION 15 OF THIS AGREEMENT, (ii) SECTION 18 OF THIS AGREEMENT, (iii) SECTION 26 OF THIS AGREEMENT, (iv) ANY DUTY OR OBLIGATION OF PURCHASER TO INDEMNIFY SELLER AS PROVIDED IN THIS AGREEMENT, OR (v) ANY MISREPRESENTATIONS BY PURCHASER. IF PURCHASER FAILS TO COMPLETE THE PURCHASE AS PROVIDED IN THIS AGREEMENT, SELLER SHALL HAVE NO RIGHT TO SPECIFICALLY ENFORCE THE PROVISIONS OF THIS AGREEMENT.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER SHOULD BE ENTITLED TO COMPENSATION FOR ANY DETRIMENT SUFFERED IF PURCHASER FAILS TO CONSUMMATE THE PURCHASE OF THE PROPERTY IF AND WHEN REQUIRED TO DO SO UNDER THE TERMS OF THIS AGREEMENT, BUT AGREE THAT IT WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN THE EXTENT OF THE ACTUAL DETRIMENT SELLER WOULD SUFFER AS A RESULT OF SUCH FAILURE. CONSEQUENTLY, IF PURCHASER FAILS TO CONSUMMATE THE PURCHASE OF THE PROPERTY ON THE CLOSING DATE OR FAILS TO PERFORM ANY OF ITS OTHER COVENANTS HEREUNDER IN ANY MATERIAL RESPECT, OR OTHERWISE FAILS TO PERFORM ITS OBLIGATIONS HEREUNDER WITHOUT LEGAL EXCUSE, THEN SELLER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO PURCHASER AND ESCROW AGENT PRIOR TO OR ON THE CLOSING DATE (1) SUBJECT TO PURCHASER’S RIGHTS IN SECTION 7.3.1), IN WHICH EVENT THE ▇▇▇▇▇▇▇ MONEY IS DEPOSIT SHALL BE PAID TO SELLER AS FIXED, AGREED, AND LIQUIDATED DAMAGES (AND NOT AS A REASONABLE ESTIMATE PENALTY), AND, AFTER THE PAYMENT OF AND BEARS A REASONABLE RELATIONSHIP THE DEPOSIT TO SELLER, NEITHER SELLER NOR PURCHASER WILL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT FOR ANY OBLIGATIONS THAT EXPRESSLY SURVIVE TERMINATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY 7 This term varied to reflect the specifics for the property covered by each respective agreement. The dollar amount shown here reflects the aggregate amount across all agreements. CONTAINED IN THIS SECTION 10.3, SELLER AND PURCHASER AGREE THAT THIS LIQUIDATED DAMAGES THAT WOULD PROVISION IS NOT INTENDED AND SHOULD NOT BE SUFFERED DEEMED OR CONSTRUED TO LIMIT IN ANY WAY PURCHASER’S INDEMNITY OBLIGATIONS UNDER SECTION 11.2 OF THIS AGREEMENT NOR LIMIT SELLER’S RECOVERY AGAINST PURCHASER FOR ATTORNEYS’ FEES AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING PURSUANT TO OCCUR DUE TO A DEFAULT OF SECTION 14.13. IN NO EVENT SHALL PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED LIABLE FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES.. Seller’s Initials: Purchaser’s Initials:
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser Default. If NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF THE CLOSING FAILS TO OCCUR DUE TO PURCHASER’S DEFAULT UNDER THE TERMS OF THIS AGREEMENT, THE DEPOSIT SHALL BE PAID TO SELLER AS LIQUIDATED DAMAGES (i) Purchaser fails to perform in accordance with the terms of this AgreementWHICH SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST PURCHASER FOR PURCHASER’S FAILURE TO PURCHASE THE PROPERTY), (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAT WHICH TIME THIS AGREEMENT SHALL BE NULL AND VOID AND NEITHER PARTY SHALL HAVE ANY RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT EXCEPT FOR THOSE THAT EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR HAVE OCCURRED DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY AMOUNT OF THE DEPOSIT SHALL BE AND CONSTITUTE REASONABLE AND VALID LIQUIDATED DAMAGES.. THE PARTIES AGREE THAT THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369 BUT SHALL BE TREATED AS LIQUIDATED DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO LIMIT PURCHASER’S LIABILITY TO SELLER (A) WITH RESPECT TO ANY INDEMNIFICATION OR OTHER PROVISION OF THIS AGREEMENT THAT SURVIVES THE CLOSING OR TERMINATION OF THIS AGREEMENT, AND SELLER SHALL RETAIN ALL RIGHTS AND REMEDIES, AT LAW OR IN EQUITY, WITH RESPECT TO THOSE PROVISIONS, AND (B) IN THE EVENT THAT, FOLLOWING ANY TERMINATION OF THIS AGREEMENT, PURCHASER OR ANY PARTY AFFILIATED WITH PURCHASER ASSERTS ANY CLAIMS OR RIGHTS TO THE PROPERTY THAT MIGHT DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY. Initials of Seller: Initials of Purchaser:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hudson Pacific Properties, Inc.)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this AgreementIF THE CLOSING FAILS TO OCCUR DUE TO PURCHASER’S DEFAULT UNDER THIS AGREEMENT, (ii) Seller is not in material default hereunderSELLER, and (iii) the Closing does not occurAS ITS SOLE AND EXCLUSIVE REMEDY, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) SHALL BE ENTITLED TO RETAIN THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF DEPOSIT AS “LIQUIDATED DAMAGES”. SELLER AND BEARS A REASONABLE RELATIONSHIP TO PURCHASER AGREE THAT BASED UPON THE DAMAGES THAT WOULD BE SUFFERED CIRCUMSTANCES NOW EXISTING, KNOWN AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT UNKNOWN, IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) ASCERTAIN SELLER’S DAMAGES BY REASON OF SUCH DEFAULT. PURCHASER SEEKS AND SELLER WISH TO LIMIT AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD RESULT IF SELLER FILED A LAWSUIT TO COLLECT ITS LIABILITY DAMAGES FOR A BREACH OF THIS AGREEMENT. THEREFORE, IF CLOSING FAILS TO OCCUR DUE TO A DEFAULT UNDER THIS AGREEMENT BY PURCHASER, AS SELLER’S SOLE AND EXCLUSIVE REMEDY, THE ▇▇▇▇▇▇▇ MONEY DEPOSIT SHALL BE RELEASED TO SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE AMOUNT OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT AS PROVIDED HEREIN (THE “SURVIVING OBLIGATIONS”) AND THE PARTIES’ RIGHTS UNDER SECTION 11.8. SUCH RETENTION OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT BY SELLER, TOGETHER WITH THE SURVIVING OBLIGATIONS AND SELLER’S RIGHTS UNDER SECTION 11.8, SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF PURCHASER’S FAILURE TO PURCHASE THE EVENT THIS AGREEMENT IS TERMINATED PROPERTY AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR PURCHASER’S BREACH OF PURCHASER UNDER THIS AGREEMENT; AND (4) . SUCH RETENTION OF THE ▇▇▇▇▇▇▇ MONEY DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY. OTHER THAN THE SPECIFIC REMEDY EXPRESSLY SET FORTH IN THIS SECTION 10.1, TOGETHER WITH THE SURVIVING OBLIGATIONS AND CONSTITUTE VALID LIQUIDATED DAMAGES.SELLER’S RIGHTS UNDER SECTION 11.8, SELLER HEREBY WAIVES ANY AND ALL RIGHT AND REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MAY OTHERWISE HAVE BEEN ENTITLED BY REASON OF PURCHASER’S DEFAULT, INCLUDING ANY RIGHT IN EQUITY TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT BY PURCHASER AND ANY RIGHT AT LAW TO SEEK DAMAGES FROM PURCHASER. /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇ Seller’s initials Purchaser’s initials
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Purchaser Default. If (i) Purchaser materially fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided for in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) 250,000 shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreementremedies. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.. PURCHASER INITIALS: SELLER INITIALS: ___________________ ________________
Appears in 1 contract
Sources: Real Estate Sale Agreement (First Capital Income & Growth Fund Series Xii)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER THE PARTIES ACKNOWLEDGE AND AGREE THAT SELLER SHOULD BE ENTITLED TO COMPENSATION FOR ANY DETRIMENT SUFFERED IF PURCHASER FAILS TO CONSUMMATE THE PURCHASE OF THE PROPERTY IF AND WHEN REQUIRED TO DO SO UNDER THE TERMS OF THIS AGREEMENT, BUT AGREE THAT IT WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN THE EXTENT OF THE ACTUAL DETRIMENT SELLER WOULD SUFFER AS A RESULT OF SUCH FAILURE. CONSEQUENTLY, IF PURCHASER FAILS TO CONSUMMATE THE PURCHASE OF THE PROPERTY ON THE CLOSING DATE OR FAILS TO PERFORM ANY OF ITS OTHER COVENANTS HEREUNDER IN ANY MATERIAL RESPECT, OR OTHERWISE FAILS TO PERFORM ITS OBLIGATIONS HEREUNDER WITHOUT LEGAL EXCUSE, THEN SELLER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO PURCHASER AND ESCROW AGENT PRIOR TO OR ON THE CLOSING DATE (1) SUBJECT TO PURCHASER’S RIGHTS IN SECTION 7.3.1), IN WHICH EVENT THE ▇▇▇▇▇▇▇ MONEY IS DEPOSIT SHALL BE PAID TO SELLER AS FIXED, AGREED, AND LIQUIDATED DAMAGES (AND NOT AS A REASONABLE ESTIMATE PENALTY), AND, AFTER THE PAYMENT OF AND BEARS A REASONABLE RELATIONSHIP THE DEPOSIT TO SELLER, NEITHER SELLER NOR PURCHASER WILL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT FOR ANY OBLIGATIONS THAT EXPRESSLY SURVIVE TERMINATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 10.3, SELLER AND PURCHASER AGREE THAT THIS LIQUIDATED DAMAGES THAT WOULD PROVISION IS NOT INTENDED AND SHOULD NOT BE SUFFERED DEEMED OR CONSTRUED TO LIMIT IN ANY WAY PURCHASER’S INDEMNITY OBLIGATIONS UNDER SECTION 11.2 OF THIS AGREEMENT NOR LIMIT SELLER’S RECOVERY AGAINST PURCHASER FOR ATTORNEYS’ FEES AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING PURSUANT TO OCCUR DUE TO A DEFAULT OF SECTION 14.13. IN NO EVENT SHALL PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED LIABLE FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES.
Appears in 1 contract
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR OBLIGATIONS OF PURCHASER THAT SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) SELLER'S DAMAGES RESULTING FROM PURCHASER'S DEFAULT ARE DIFFICULT, IF NOT IMPOSSIBLE, TO DETERMINE, AND THAT THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT PENALTY OR A FORFEITURE. NOTWITHSTANDING THE FOREGOING, ANY CONFLICT BETWEEN THE PROVISIONS OF HAVING WITHDRAWN THIS SECTION AND SECTION 5.1.2 WITH REGARD TO A BREACH OF SELLER'S REPRESENTATIONS OR WARRANTIES SHALL BE RESOLVED BY THE PROVISIONS OF SECTION 5.1.2. FURTHER, NOTWITHSTANDING ANYTHING IN THIS SECTION 10.1 TO THE CONTRARY, IN THE EVENT OF PURCHASER'S DEFAULT OR TERMINATION OF THIS AGREEMENT, SELLER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IF PURCHASER OR ANY PARTY RELATED TO OR AFFILIATED WITH PURCHASER IS ASSERTING ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER FROM SALE HAVING CLEAR AND MARKETABLE TITLE TO THE FAILURE OF PROPERTY. IF CLOSING IS CONSUMMATED, THEN SELLER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY IF PURCHASER FAILS TO OCCUR DUE TO A DEFAULT PERFORM ANY POST-CLOSING OBLIGATION OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGES.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Purchaser Default. If IF PURCHASER SHALL BECOME IN BREACH OF OR DEFAULT UNDER THIS AGREEMENT AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, SELLER SHALL ELECT AS ITS SOLE REMEDY HEREUNDER TO (iA) Purchaser fails to perform in accordance with the terms of this AgreementTERMINATE THIS AGREEMENT WHEREIN THE DEPOSIT SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF PURCHASER PURSUANT TO SECTION 3.1.7 HEREOF AND THE PAYMENT OF LEGAL FEES IN CONNECTION WITH ANY ENFORCEMENT OF SUCH INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11.9 HEREOF; OR (iiB) Seller is not in material default hereunderWAIVE THE DEFAULT, and (iii) the Closing does not occurPRIOR TO OR AT THE CLOSING, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality AgreementAND PROCEED TO CLOSE THE TRANSACTION CONTEMPLATED HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. SELLER AND PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY DEPOSIT IS A FAIR AND REASONABLE ESTIMATE AMOUNT TO BE RETAINED BY SELLER AS AGREED AND LIQUIDATED DAMAGES IN LIGHT OF SELLER'S REMOVAL OF THE PROPERTY FROM THE MARKET AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS AND SHALL NOT CONSTITUTE A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO PENALTY OR A FORFEITURE. /s/ TW__________________ /s/ JP_________________ Purchaser's Seller's Initials 10.2 SELLER DEFAULT. IF SELLER SHALL BECOME IN BREACH OR DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD AND THE BREACH OR DEFAULT CONTINUES BEYOND THE EXPIRATION OF THE CURE PERIOD, IF ANY, PROVIDED IN SECTION 11.6 HEREOF, PURCHASER MAY, AS PURCHASER’S SOLE OPTION, ELECT EITHER TO: (I) BY WRITTEN NOTICE TO SELLER AND THE TITLE COMPANY, CANCEL THIS AGREEMENT WHEREUPON THE DEPOSIT SHALL BE EXTREMELY DIFFICULT PAID IMMEDIATELY BY THE TITLE COMPANY TO PURCHASER, SELLER SHALL PROMPTLY REIMBURSE TO PURCHASER ITS REASONABLE OUT-OF-POCKET AND IMPRACTICAL THIRD-PARTY PROPERTY DILIGENCE EXPENSES IN AN AMOUNT NOT TO DETERMINEEXCEED $65,000.00 AND, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER OF THE PARTIES SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION HEREUNDER; OR, (II) EXTEND THE DATE SCHEDULED FOR CLOSING FOR SUCH REASONABLE PERIOD OF TIME AS MAY BE REQUIRED TO PERMIT SELLER TO CURE OR REMEDY SUCH BREACH IN ACCORDANCE WITH SECTION 11.6; (3III) PURCHASER SEEKS WAIVE, PRIOR TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT OR AT THE CLOSING, THE APPLICABLE OBJECTION OR CONDITION AND PROCEED TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND CLOSE THE TRANSACTION CONTEMPLATED BY HEREBY IN ACCORDANCE WITH THE REMAINING TERMS HEREOF; OR (IV) SEEK SPECIFIC PERFORMANCE OF SELLER’S OBLIGATIONS HEREUNDER. NOTWITHSTANDING THE FOREGOING, IF SPECIFIC PERFORMANCE IS UNAVAILABLE AS A REMEDY TO PURCHASER BECAUSE OF SELLER’S AFFIRMATIVE ACT OR INTENTIONAL OMISSION, PURCHASER SHALL BE ENTITLED TO PURSUE ALL RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY; PROVIDED, IN ANY SUIT FOR DAMAGES, SELLER SHALL NOT BE LIABLE TO PURCHASER FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES. NOTWITHSTANDING THE FOREGOING, ANY CONFLICT BETWEEN THE PROVISIONS OF THIS AGREEMENT DOES NOT CLOSE DUE SECTION AND SECTION 5.1.5 WITH REGARD TO A DEFAULT BREACH OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE ▇▇▇▇▇▇▇ MONEY SELLER’S REPRESENTATIONS OR WARRANTIES SHALL BE AND CONSTITUTE VALID LIQUIDATED DAMAGESRESOLVED BY THE PROVISIONS OF SECTION 5.1.5.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cole Corporate Income Trust, Inc.)
Purchaser Default. If IF (iI) Purchaser fails to perform in accordance with the terms of this AgreementPURCHASER SHALL FAIL TO CONSUMMATE THE PURCHASE OF THE PROPERTY FOR ANY REASON OTHER THAN SELLER’S DEFAULT, THE CONDITIONS TO PURCHASER’S OBLIGATIONS SET FORTH IN SECTION 11 HAVING BEEN SATISFIED OR WAIVED, OR (iiII) Seller is not in material default hereunderIF PURCHASER SHALL OTHERWISE FAIL IN ANY MATERIAL RESPECT TO PERFORM ANY OF ITS MATERIAL OBLIGATIONS OR AGREEMENTS AS AND WHEN REQUIRED HEREUNDER, and (iii) the Closing does not occurTHEN SELLER SHALL HAVE THE RIGHT, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) aboveAS SELLER’S SOLE AND EXCLUSIVE REMEDY, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. TO TERMINATE THIS AGREEMENT ON NOTICE TO PURCHASER AND SELLER ACKNOWLEDGE ESCROW AGENT AND AGREE TO RECEIVE, DRAW UPON AND KEEP THE DEPOSIT, AND THE PROCEEDS THEREOF, WITH ANY INTEREST EARNED THEREON, AS AND FOR LIQUIDATED DAMAGES AND FURTHER CONSIDERATION FOR ENTERING INTO THIS AGREEMENT, AND, THEREUPON, THIS AGREEMENT SHALL BECOME NULL AND VOID AND NEITHER PARTY TO THIS AGREEMENT SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EXCEPT FOR THOSE EXPRESSLY STATED TO SURVIVE THE TERMINATION HEREUNDER, IT BEING THE UNDERSTANDING AND AGREEMENT OF THE PARTIES HERETO THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF ACTUAL DAMAGES, COSTS AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED EXPENSES SUSTAINED BY SELLER AS A RESULT IN THE EVENT OF HAVING WITHDRAWN PURCHASER’S DEFAULT ARE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. ESCROW AGENT SHALL IMMEDIATELY DELIVER THE PROPERTY FROM SALE DEPOSIT (AND THE FAILURE OF CLOSING ANY PROCEEDS THEREOF OR INTEREST THEREON) TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT UPON RECEIPT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A NOTICE OF TERMINATION. NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY DEFAULT OF BY PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT BREACH AFTER CLOSING OR ANY TERMINATION HEREOF OF PURCHASER UNDER THIS AGREEMENT; ANY COVENANT, REPRESENTATION, INDEMNITY OR OTHER OBLIGATION WHICH SURVIVES THE CLOSING OR ANY TERMINATION HEREOF, SELLER SHALL HAVE ANY AND (4) THE ▇▇▇▇▇▇▇ MONEY SHALL BE ALL RIGHTS AND CONSTITUTE VALID LIQUIDATED DAMAGESREMEDIES AVAILABLE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Hotel Capital Inc)
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement’s Remedies. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. IF PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP FAILS IN ANY MATERIAL RESPECT TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED , SUCH FAILURE REMAINS UNCURED AFTER DELIVERY OF WRITTEN NOTICE BY SELLER AND THE EXPIRATION OF A FIVE (5) DAY CURE PERIOD (PROVIDED THAT NO CURE PERIOD SHALL APPLY TO PURCHASER’S PAYMENT OF THE PURCHASE PRICE AND/OR DELIVERY OF THE DOCUMENTS REFERENCED IN SECTION 6.4 ON OR BEFORE THE CLOSING DATE) AND SELLER DOES NOT WAIVE SUCH FAILURE OF PERFORMANCE IN WRITING, SELLER SHALL BE ENTITLED AS ITS SOLE REMEDY TO TERMINATE THIS AGREEMENT AND RECOVER THE DEPOSIT UNDER THIS AGREEMENT AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, IN FULL SATISFACTION OF ANY CLAIMS AGAINST PURCHASER; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT SELLER’S RIGHTS TO RECEIVE REIMBURSEMENT FOR COSTS, FEES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) PURSUANT TO SECTION 15.3 BELOW IN ADDITION TO THE DEPOSIT IN THE EVENT OF A DISPUTE REGARDING THE DISPOSITION OF THE DEPOSIT, NOR SHALL THIS PROVISION BE DEEMED TO WAIVE OR AFFECT SELLER’S RIGHTS AND PURCHASER’S INDEMNITY OBLIGATIONS UNDER OTHER SECTIONS OF THIS AGREEMENT. SELLER AND PURCHASER AGREE THAT SELLER’S DAMAGES RESULTING FROM PURCHASER’S DEFAULT ARE DIFFICULT TO DETERMINE AND ASCERTAIN AND THE AMOUNT OF THE DEPOSIT IS A FAIR ESTIMATE OF THOSE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH WITHDRAWAL FAILURE, PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT SELLER’S RIGHTS TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES PURSUANT TO SECTION 15.3, NOR WAIVE OR AFFECT SELLER’S RIGHTS AND FAILURE TO CLOSE DUE TO A DEFAULT PURCHASER’S INDEMNITY OBLIGATIONS UNDER OTHER SECTIONS OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) . THE ▇▇▇▇▇▇▇ MONEY SHALL BE AND PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH AMOUNTS IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT IS INTENDED TO CONSTITUTE VALID LIQUIDATED DAMAGES.. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION CONTAINED IN THIS SECTION. Seller’s Initials: /s/CWH Purchaser’s Initials: /s/MM (Remainder of this page is intentionally blank; text continues on following page)
Appears in 1 contract
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND IF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES SHALL NOT CLOSE DUE BE CLOSED BY REASON OF PURCHASER’S FAILURE TO A DEFAULT CONSUMMATE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT, THEN THIS AGREEMENT SHALL TERMINATE AND THE RETENTION OF PURCHASER THE DEPOSIT SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF SELLERS UNDER THIS AGREEMENT, SUBJECT TO THE SURVIVAL OBLIGATIONS; AND (4) THE ▇▇▇▇▇▇▇ MONEY PROVIDED, HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT THE RIGHTS OF SELLERS TO DAMAGES UNDER ANY INDEMNITIES GIVEN BY PURCHASER TO SELLERS UNDER THIS AGREEMENT. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLERS WILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND THAT THE PROJECT ASSETS WILL BE REMOVED FROM THE MARKET; FURTHER, THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OF DETRIMENT TO SELLERS CAUSED BY PURCHASER’S FAILURE TO CONSUMMATE THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR THE AMOUNT OF COMPENSATION SELLERS SHOULD RECEIVE AS A RESULT OF PURCHASER’S BREACH OR DEFAULT. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE, 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 VALID LIQUIDATED DAMAGESDAMAGES TO SELLERS PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. PURCHASER FURTHER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR PURCHASER’S RIGHT TO SPECIFICALLY ENFORCE THIS AGREEMENT PURSUANT TO SECTION 9.1, PURCHASER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO SEEK DECLARATORY AND/OR INJUNCTIVE RELIEF AND/OR EQUITABLE RELIEF PRIOR TO THE CLOG, OR TO RECORD A NOTICE OF THIS AGREEMENT OR ANY RIGHTS IT MAY HAVE HEREUNDER, OR TO RECORD OR FILE A NOTICE OF PENDENCY OF ANY ACTION OR PROCEEDINGS TO ENFORCE THIS AGREEMENT.
Appears in 1 contract
Purchaser Default. If (i) Purchaser fails to perform in accordance with the terms of this Agreement, (ii) Seller is not in material default hereunder, and (iii) the Closing does not occur, the ▇▇▇▇▇▇▇ Money may be retained by Seller as liquidated and agreed upon damages and as Seller's sole and exclusive remedy with respect thereto other than those rights that survive a termination of this Agreement as provided herein and Seller's rights under the Confidentiality Agreement. If Purchaser is required to but does not deposit with the Escrowee the ▇▇▇▇▇▇▇ Money as provided in Section 2(A)(i) above, the sum of Two Hundred Fifty Thousand and No/100 Dollars ($200,000) shall nonetheless be recoverable by Seller from Purchaser as ▇▇▇▇▇▇▇ Money and without prejudice to Seller's other rights and remedies provided in this Agreement. PURCHASER AND SELLER ACKNOWLEDGE AND AGREE THAT (1) IF THE ▇▇▇▇▇▇▇ MONEY IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING FAILS TO OCCUR DUE TO A PURCHASER’S DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) , SELLER, AS ITS SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO RETAIN THE ACTUAL DAMAGES SUFFERED DEPOSIT AS “LIQUIDATED DAMAGES”. SELLER AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL PURCHASER AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT UNKNOWN, IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) ASCERTAIN SELLER’S DAMAGES BY REASON OF SUCH DEFAULT. PURCHASER SEEKS AND SELLER WISH TO LIMIT AVOID THE COSTS AND LENGTHY DELAYS WHICH WOULD RESULT IF SELLER FILED A LAWSUIT TO COLLECT ITS LIABILITY UNDER DAMAGES FOR A BREACH OF THIS AGREEMENT AGREEMENT. THEREFORE, IF CLOSING FAILS TO THE AMOUNT OF THE ▇▇▇▇▇▇▇ MONEY IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE OCCUR DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AGREEMENT BY PURCHASER, AS SELLER’S SOLE AND (4) EXCLUSIVE REMEDY, THE ▇▇▇▇▇▇▇ MONEY DEPOSIT SHALL BE AND CONSTITUTE VALID RELEASED TO SELLER AS LIQUIDATED DAMAGES., AND BOTH PARTIES SHALL BE RELIEVED OF AND RELEASED FROM ANY FURTHER LIABILITY HEREUNDER EXCEPT FOR THE OBLIGATIONS WHICH EXPRESSLY SURVIVE TERMINATION OF THIS AGREEMENT AS PROVIDED HEREIN (THE “SURVIVING OBLIGATIONS”) AND THE PARTIES RIGHTS UNDER SECTION 11.8. SUCH RETENTION OF THE DEPOSIT BY SELLER SHALL BE IN LIEU OF ANY OTHER RELIEF TO WHICH SELLER MIGHT BE ENTITLED BY VIRTUE OF PURCHASER’S FAILURE TO PURCHASE THE PROPERTY AND SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY FOR PURCHASER’S BREACH OF THIS AGREEMENT. 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 THE SPECIFIC REMEDY EXPRESSLY SET FORTH IN THIS SECTION 10.1, SELLER HEREBY WAIVES ANY AND ALL RIGHT AND REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MAY OTHERWISE HAVE BEEN ENTITLED BY REASON OF PURCHASER’S DEFAULT, INCLUDING ANY RIGHT IN EQUITY TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT BY PURCHASER AND ANY RIGHT AT LAW TO SEEK DAMAGES FROM PURCHASER. Seller’s initials Purchaser’s initials
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Sources: Purchase and Sale Agreement (GreenHunter Resources, Inc.)