CIVIL CODE, WHICH PROVIDES THAT:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor
[Remainder of page intentionally blank.]
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AND, BEING AWARE THAT SAID SECTION 1542 MIGHT OTHERWISE APPLY TO AND LIMIT THE
EFFECT OF PURCHASER'S WAIVER AND RELEASE HEREIN, KNOWINGLY WAIVES THE BENEFITS
OF SUCH STATUTE AND INTENDS THAT IT NOT BE APPLICABLE HERE.
Sellers have given Purchaser material concessions regarding this transaction in
exchange for Purchaser agreeing to the provisions of this Section
9.2.
Purchaser initialed this Section 9.2 to further indicate their awareness
and acceptance of each and every provision hereof.
INITIALS:
PURCHASER ________
9.2.7THE TERMS AND PROVISIONS OF THIS SECTION 9.2 SHALL SURVIVE EACH CLOSING.
10.DEFAULT AND REMEDIES.
10.1.Default by Purchaser.
PURCHASER AND SELLERS HEREBY ACKNOWLEDGE AND AGREE
THAT, IN THE EVENT THAT PURCHASER FAILS TO CONSUMMATE ANY CLOSING
FOR ANY
REASON OTHER THAN A SELLER'S DEFAULT, A FAILURE OF A CONDITION PRECEDENT TO
PURCHASER'S OBLIGATION TO PROCEED TO CLOSING (THAT WAS NOT CAUSED BY PURCHASER
OR ITS REPRESENTATIVES OR AFFILIATES), OR THE PERMITTED TERMINATION OF THIS
AGREEMENT BY EITHER SELLER OR PURCHASER AS HEREIN EXPRESSLY PROVIDED (A
"PURCHASER DEFAULT"), THE APPLICABLE SELLER(S) WILL SUFFER DAMAGES IN AN AMOUNT
WHICH WILL, DUE TO THE SPECIAL NATURE OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT AND THE SPECIAL NATURE OF THE NEGOTIATIONS WHICH PRECEDED THIS
AGREEMENT, BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ASCERTAIN.
IN ADDITION,
PURCHASER WISHES TO HAVE A LIMITATION PLACED UPON THE POTENTIAL LIABILITY OF
PURCHASER TO SELLERS IN THE EVENT OF A DEFAULT BY PURCHASER, AND WISHES TO
INDUCE SELLERS TO WAIVE OTHER REMEDIES WHICH SELLERS MAY HAVE IN THE EVENT OF A
PURCHASER DEFAULT.
PURCHASER AND SELLERS, AFTER DUE NEGOTIATION, HEREBY
ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF THE EARNEST MONEY REPRESENTS A
REASONABLE ESTIMATE OF THE DAMAGES WHICH THE APPLICABLE SELLER(S) WILL SUSTAIN
IN THE EVENT OF SUCH PURCHASER DEFAULT.
PURCHASER AND SELLERS HEREBY AGREE THAT
IN THE EVENT OF A PURCHASER DEFAULT, SELLERS MAY, AS SELLERS' SOLE AND EXCLUSIVE
REMEDY FOR PURCHASER'S DEFAULT, TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO
PURCHASER AND ESCROW AGENT PRIOR TO THE CLOSING TO WHICH THE PURCHASER'S DEFAULT
RELATES, RECEIVE THE EARNEST MONEY THEN BEING HELD BY ESCROW AGENT AS LIQUIDATED
DAMAGES AND ESCROW AGENT IMMEDIATELY SHALL DELIVER SUCH EARNEST MONEY TO SAID
SELLER(S).
SUCH RETENTION OF THE EARNEST MONEY BY SELLERS IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLERS AND SHALL NOT BE DEEMED TO CONSTITUTE A
FORFEITURE OR PENALTY.
47
NOTHING IN THIS SECTION 10.1 SHALL (A) PREVENT OR PRECLUDE ANY RECOVERY OF
ATTORNEYS' FEES OR OTHER COSTS INCURRED BY SELLERS PURSUANT TO SECTIONS 4.3, 4.5
or 12.5 OR (B) IMPAIR OR LIMIT THE EFFECTIVENESS OR ENFORCEABILITY OF THE
INDEMNIFICATION OBLIGATIONS OF PURCHASER CONTAINED IN SECTIONS 4.3, 7.5.4,
8.8.2, 11 AND 12.2 OR IN THE PURCHASER'S CLOSING DOCUMENTS.
10.2.Default