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AZREB.com | Real Estate Clauses
ARTICLE
14.
Default
.
14.1. Buyer's Default.
(a)
If Buyer fails to perform one or more of its obligations under Article 12
or 13 that are to be performed at Closing, then Seller's sole remedy for such
default shall be to terminate this Agreement by giving notice of such
termination to Buyer (with a copy to Closing Agent).
If Seller does so terminate this Agreement, then Closing Agent is hereby
instructed to pay the Deposit to Seller in accordance with Exhibit
"J".
(b)
If Buyer fails to perform any of Buyer's obligations under this Agreement
other than those set forth in Article 12 or 13, then Seller may give notice to
Buyer (with a copy to Closing Agent) specifying the nature of the default.
Buyer shall have thirty (30) days after receiving such notice, but in no
event beyond the Closing Date, within which to cure the default.
If Buyer fails to cure the default within that period, then Seller shall
have the right, exercisable only by giving notice to Buyer (with a copy to
Closing Agent) within thirty (30) days thereafter, to terminate this Agreement.
If Seller duly exercises that right, then Closing Agent is hereby
instructed to pay the Deposit to Seller in accordance with Exhibit
"J". If Seller
has the right to terminate this Agreement under the foregoing provisions of this
Section 14.1(b) and the Closing Date would otherwise occur during the foregoing
thirty (30)-day termination period, then Seller may extend the Closing Date to a
date that is within thirty (30) days after said termination period.
(c)
SELLER AND BUYER AGREE THAT PAYMENT OF THE DEPOSIT TO SELLER UNDER THIS
SECTION 14.1 SHALL BE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
Buyer is directed to the provisions of Article 27 concerning such payment
of the Deposit.
14.2.
Seller's Default. If
Buyer tenders to Closing Agent the Cash Portion of the Purchase Price and the
other moneys and the documents required of Buyer at Closing but Seller fails to
perform one or more of its obligations under Article 12 or 13 that are to be
performed at Closing, or if Seller shall otherwise be in material default of any
of Seller's obligations under this Agreement that are to be performed at or
before Closing, then Buyer shall give notice to Seller (with a copy to Closing
Agent) within five (5) Business Days thereafter specifying the nature of the
default. Seller shall have thirty
(30) days after receiving such notice within which to cure the specified
default; provided, however, that, if at the end of that thirty (30)-day period
Seller is diligently pursuing such cure but the default still has not been
cured, then Seller shall have an additional thirty (30)-day period within which
to cure the default. If Seller
fails to cure the default within the applicable period, then Buyer shall have
the right, exercisable only by giving notice to Seller (with a copy to Closing
Agent) within five (5) Business Days after the applicable period, to terminate
this Agreement; however, Buyer shall give Seller such a notice of termination if
the uncured default is a failure by Seller to close. Nevertheless no notice of termination given by Buyer
hereunder shall be of any force or effect if Seller cures the default before
Seller receives that notice. If
Buyer duly gives Seller a notice of termination hereunder and such notice is
effective, then (a) Closing Agent is hereby instructed to return the Deposit to
Buyer in accordance with Exhibit "J", and (b) Buyer may
seek actual damages against Seller with respect to the default.
Buyer specifically waives any and all right (a) to file or record any lis
pendens or any other lien or encumbrance against the Property, or (b) to
seek specific performance or other equitable relief or consequential or punitive
damages. If Buyer does not duly
notify Seller of the default, or if Buyer does not duly give Seller a notice of
termination and is not required to do so hereunder, then (a) the default shall
be treated as waived by Buyer, and (b) at Closing, Buyer shall accept the
Property subject to the default without any reduction in the Purchase Price or
Claims against Seller on account of the default.
If Seller timely cures the default or if the default is treated as
waived, then the Closing Date shall be the later of a date selected by Seller
[which date shall be within thirty (30) days after such cure or waiver] or the
date that would otherwise be the Closing Date under the terms of this Agreement.
14.3. Attendance at Closing.
Neither Buyer's nor Seller's attendance or appearance at Closing shall
affect the foregoing provisions of this Article.
14.4. Attorneys' Fees.
Attorneys' fees and costs incurred by any party seeking to enforce the
provisions of this Agreement (whether incurred in preparation for or in pursuit
of litigation, or both) shall be paid by the losing party.
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