Common use of Defaults by Buyer Clause in Contracts

Defaults by Buyer. If there is any default by Buyer under this Agreement prior to the last Closing or if Buyer fails to timely construct the Access Improvements contemplated by the Access Easement Agreement in accordance with the provisions of Section 4 thereof, then Mission may, at Mission's option, (a) since damages may be difficult to ascertain, retain the Deposit as liquidated damages, and declare this Agreement terminated in which case each party shall be relieved of all further obligations hereunder, or (b) if such default is the failure of Buyer to comply with any obligations of Buyer hereunder (other than the obligation of Buyer to close hereunder, or the obligations set forth in Section 3.6 with respect to submittal of documents or obtaining approvals by set deadlines), including, without limitation, Buyer's failure to comply with any of its obligations which survive the termination of this Agreement, bring an action against Buyer for damages. In addition to any default by Buyer hereunder resulting from any failure by Buyer to comply with any of Buyer's obligations hereunder, Buyer shall be in default hereunder if Buyer shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any similar act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assign- ment for the benefit of creditors or if involuntary proceedings under any such bankruptcy or insolvency law or for the dissolution of Buyer shall be instituted against Buyer or a receiver or trustee shall be appointed for the interest of Buyer under this Agreement or for all or substantially all of the property of Buyer, and such proceedings shall not be dismissed or such receivership or trusteeship vacated within 60 days after such institution or appointment. The foregoing shall be the sole remedies of Mission, and Mission shall not be entitled to, and hereby waives all rights to seek, specific performance of this Agreement.

Defaults by Buyer. If there is any default by Buyer under this Agreement, following notice to Buyer and five (5) days, during which period Buyer may cure the default, Seller shall be entitled, as its sole remedy hereunder, to terminate this Agreement prior and to the last Closing or if Buyer fails to timely construct the Access Improvements contemplated by the Access Easement Agreement in accordance with the provisions of Section 4 thereof, then Mission may, at Mission's option, (a) since damages may be difficult to ascertain, receive and retain the Deposit as full liquidated damagesdamages for such default of Buyer, the parties hereto acknowledging that it is impossible to estimate more precisely the damages which might be suffered by Seller upon Buyer’s default, and declare that said Deposit is a reasonable estimate of Seller’s probable loss in the event of default by Buyer. Seller’s retention of said Deposit is intended not as a penalty, but as full liquidated damages pursuant to O.C.G.A. § 13-6-7. The right to retain the Deposit as full liquidated damages is Seller’s sole and exclusive remedy in the event of default hereunder by Buyer, and Seller hereby waives and releases any right to (and hereby covenants that it shall not) ▇▇▇ Buyer: (a) for specific performance of this Agreement terminated in which case each party shall be relieved of all further obligations hereunderAgreement, or (b) if such default is to recover actual damages in excess of the failure of Buyer Deposit. The foregoing liquidated damages provision shall not apply to comply with any or limit Buyer’s liability for Buyer’s indemnification obligations of Buyer hereunder (other than the obligation of Buyer to close hereunder, or the obligations set forth provided in Section 3.6 5.1 and Buyer’s obligations in Section 5.2.2. Subject to Buyer’s right to receive a refund of the Deposit deposited with respect Escrow Holder in accordance with the terms hereof, Buyer hereby waives and releases any right to submittal (and hereby covenants that it shall not) ▇▇▇ Seller or seek or claim a refund of documents said Deposit (or obtaining approvals any part thereof) on the grounds it is unreasonable in amount and exceeds Seller’s actual damages or that its retention by set deadlines), including, without limitation, Buyer's failure to comply with any of its obligations which survive the termination of this Agreement, bring an action against Buyer for Seller constitutes a penalty and not agreed upon as reasonable liquidated damages. In addition the event this Agreement is terminated due to any the default by of Buyer hereunder resulting from any failure by Buyer to comply with any of Buyer's obligations hereunder, Buyer shall be shall, in default hereunder if Buyer shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under addition, deliver to Seller, at no cost to Seller, the bankruptcy laws of the United States or under any similar act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assign- ment for the benefit of creditors or if involuntary proceedings under any such bankruptcy or insolvency law or for the dissolution of Buyer shall be instituted against Buyer or a receiver or trustee shall be appointed for the interest of Buyer under this Agreement or for all or substantially all of the property of Buyer, and such proceedings shall not be dismissed or such receivership or trusteeship vacated within 60 days after such institution or appointment. The foregoing shall be the sole remedies of Mission, and Mission shall not be entitled to, and hereby waives all rights to seek, specific performance of this AgreementDue Diligence Items.

Defaults by Buyer. If there is any default by Buyer under this Agreement prior to and if, as a result, Buyer does not acquire the last Closing or if Buyer fails to timely construct the Access Improvements contemplated by the Access Easement Agreement in accordance with the provisions of Section 4 thereofProperty at Closing, then Mission following notice to Buyer and seven (7) days (or date of Closing, whichever is earlier), during which period Buyer may cure the default, then Seller may, at Mission's optionas its sole remedy, (a) since damages may be difficult to ascertain, retain the Deposit as liquidated damages, and declare this Agreement terminated terminated, in which case the Deposit shall be paid to Seller as liquidated damages and each party shall thereupon be relieved of all further obligations hereunderand liabilities, or (b) if such except any which survive termination. Notwithstanding the foregoing, the Buyer's right to cure shall not be applicable to a failure to close and the Closing shall in no event be extended pursuant to this Section. In the event this Agreement is terminated due to the default is the failure of Buyer to comply with any obligations of Buyer hereunder (other than the obligation of Buyer to close hereunder, or the obligations set forth in Section 3.6 with respect to submittal of documents or obtaining approvals by set deadlines), including, without limitation, Buyer's failure to comply with any of its obligations which survive the termination of this Agreement, bring an action against Buyer for damages. In addition to any default by Buyer hereunder resulting from any failure by Buyer to comply with any of Buyer's obligations hereunder, Buyer shall be in default hereunder if Buyer shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under deliver to Seller, at no cost to Seller, the bankruptcy laws of the United States or under any similar act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assign- ment for the benefit of creditors or if involuntary proceedings under any such bankruptcy or insolvency law or for the dissolution of Buyer shall be instituted against Buyer or a receiver or trustee shall be appointed for the interest of Buyer under this Agreement or for all or substantially Due Diligence Items and all of the property of Buyer's Reports. THE PARTIES ACKNOWLEDGE THAT THIS TRANSACTION FAILS TO CLOSE AS THE RESULT OF A MATERIAL DEFAULT BY BUYER OF ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT, and such proceedings shall not be dismissed or such receivership or trusteeship vacated within 60 days after such institution or appointmentSELLER'S DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO COMPUTE AND THAT THE DEPOSIT MADE BY BUYER UNDER SECTION 2.1 ABOVE REPRESENTS THE REASONABLE ESTIMATE OF SUCH DAMAGES ESTABLISHED BY THE PARTIES THROUGH GOOD FAITH CONSIDERATION OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT AS OF THE EFFECTIVE DATE, IN THE EVENT OF SUCH MATERIAL DEFAULT BY BUYER UNDER THIS AGREEMENT, SELLER SHALL RETAIN SUCH AMOUNT AS LIQUIDATED DAMAGES IN LIEU OF ANY OTHER CLAIM SELLER MAY HAVE AT LAW OR IN EQUITY (INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE) ARISING BY REASON OF SUCH DEFAULT. The foregoing shall be the sole remedies of Mission, and Mission shall not be entitled to, and hereby waives all rights to seek, specific performance of this Agreement.THE PARTIES HAVE INITIALED THIS SECTION 14.2 TO ESTABLISH THEIR INTENT SO TO LIQUIDATE DAMAGES. Seller: ARB; Buyer: CG