TO OCCUR SOLELY BY REASON OF SUCH
DEFAULT, THEN UPON SELLER'S INSTRUCTION ESCROW HOLDER SHALL CANCEL THE ESCROW
AND DELIVER THE DEPOSIT TO SELLER AND SELLER SHALL THEREUPON BE RELEASED FROM
ITS OBLIGATIONS HEREUNDER. BUYER AND SELLER AGREE THAT BASED UPON THE
CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO ESTABLISH SELLER'S DAMAGE BY REASON OF BUYER'S DEFAULT.
ACCORDINGLY, BUYER AND SELLER AGREE THAT IT WOULD BE REASONABLE AT SUCH TIME TO
AWARD SELLER "LIQUIDATED DAMAGES" EQUAL TO THE AMOUNT OF THE DEPOSIT PREVIOUSLY
PLACED INTO ESCROW BY BUYER PURSUANT TO PARAGRAPH 3 HEREOF.
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SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT THE FOREGOING AMOUNT IS REASONABLE
AS LIQUIDATED DAMAGES AND SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY IN LIEU OF
ANY OTHER RELIEF, RIGHT OR REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MIGHT
OTHERWISE BE ENTITLED BY REASON OF BUYER'S DEFAULT UNDER THIS AGREEMENT.
ACCORDINGLY, IF BUYER COMMITS A DEFAULT UNDER THIS AGREEMENT AND THE CLOSE OF
ESCROW FAILS TO OCCUR SOLELY BY REASON OF SUCH DEFAULT, SELLER MAY INSTRUCT THE
ESCROW HOLDER TO CANCEL THE ESCROW, WHEREUPON SELLER SHALL BE RELIEVED FROM ALL
LIABILITY HEREUNDER, AND, PROMPTLY FOLLOWING ESCROW HOLDER'S RECEIPT OF SUCH
INSTRUCTION, ESCROW HOLDER SHALL (i) CANCEL THE ESCROW, AND (ii) DISBURSE TO
SELLER THE DEPOSIT. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH,
SELLER WAIVES ANY AND ALL RIGHTS THAT SELLER OTHERWISE WOULD HAVE HAD UNDER
CALIFORNIA CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. IF
THE CLOSE OF ESCROW FAILS TO OCCUR FOR ANY REASON OTHER THAN BUYER'S DEFAULT
UNDER THIS AGREEMENT, THEN ESCROW HOLDER SHALL IMMEDIATELY RETURN TO BUYER THE
DEPOSIT, TOGETHER WITH ALL INTEREST ACCRUED THEREON. SELLER AND BUYER
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS PARAGRAPH
16 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
Seller's Initials
_______________
Buyer's Initials
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(b)
Seller's Alternative Remedy. Seller shall have available to it the right
to specifically enforce this Agreement if after the Contingency Period, Buyer
defaults in its obligation to purchase the Property from Seller; provided,
however, that if Seller elects to specifically enforce this Agreement pursuant
to this Paragraph 16(b), then Seller will waive its right to receive the
liquidated damages set forth in Paragraph 16(a) above and must return
immediately to Buyer any amounts received from Escrow Holder in accordance with
the terms contained therein.
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(c)
Buyer's Remedies. Buyer and Seller hereby agree that, if the sale
contemplated by this Agreement is not completed as herein provided by reason of
any default of Seller hereunder, then in addition to the return of the Deposit
and all interest accrued thereon, Buyer shall be entitled to (1) pursue any
remedy available under this Agreement or available at law or in equity,
including, without limitation, the right to specifically enforce this Agreement
and (2) reimbursement by Seller of all of Buyer's costs and expenses (including,
without limitation, reasonable attorneys' fees, costs and