THE CONSUMMATION OF
THE TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON
OF ANY DEFAULT OF SELLER, PURCHASER AND SELLER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH PURCHASER MAY
SUFFER. THEREFORE, PURCHASER AND SELLER DO HEREBY AGREE THAT, IN THE EVENT OF
SUCH DEFAULT, IN ADDITION TO ATTORNEYS' FEES AND COSTS PURSUANT TO SECTION 12.2
HEREOF, PURCHASER MAY, AS ITS SOLE RECOURSE AND REMEDY (AT LAW OR IN EQUITY),
EITHER: (a) PURSUE AN ACTION AGAINST SELLER FOR SPECIFIC PERFORMANCE; OR
(b) RECEIVE THE RETURN OF THE EARNEST MONEY DEPOSIT THEN PAID PLUS AN AMOUNT
EQUAL TO PURCHASER'S ACTUAL OUT-OF-POCKET COSTS TO UNRELATED AND INDEPENDENT
THIRD PARTY VENDORS, INCLUDING ATTORNEYS' FEES (EXCEPT IN-HOUSE ATTORNEYS), WITH
REGARD TO THIS TRANSACTION (SUCH OUT-OF-POCKET COSTS NOT TO EXCEED ONE HUNDRED
THOUSAND DOLLARS ($100,000) IN THE AGGREGATE). ALL OTHER CLAIMS TO DAMAGES OR
OTHER REMEDIES IN CONNECTION WITH SELLER'S FAILURE TO CLOSE AND CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREIN (OTHER THAN AS SPECIFIED IN (a) AND (b) HEREOF)
ARE EXPRESSLY WAIVED BY PURCHASER. THE REFUND OF THE EARNEST MONEY DEPOSIT 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 PURCHASER PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671.
PURCHASER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389.
UPON DEFAULT BY SELLER, IF THIS AGREEMENT IS TERMINATED BY PURCHASER, NEITHER
PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER,
EXCEPT ANY INDEMNIFICATION OBLIGATIONS, THE RIGHTS OF PURCHASER RESERVED HEREIN,
AND FOR THE RIGHT OF PURCHASER TO COLLECT SUCH LIQUIDATED DAMAGES FROM SELLER.
SELLER'S INITIALS
PURCHASER'S INITIALS
X.
BROKERS
Seller and Purchaser each agree to indemnify, protect, defend and hold the other
harmless from and against any claims, actions, suits or demands for payment of
any commission, finder's fee or other sum initiated by any broker, commission
agent or other person which such party or its representatives has engaged or
retained or with which it has had discussions concerning, in connection with the
transaction contemplated by this Agreement or the sale of the Property by
Seller. Purchaser shall specifically be responsible for any fees or commissions
owed Jordan Richman and Grubb & Ellis.
XI.
NOTICES
Except as otherwise expressly provided in this Agreement, all notices, requests,
demands and other communications hereunder ("Notice") shall be in writing and
shall be deemed delivered by (i) hand delivery upon receipt, (ii) registered
mail or certified mail, return receipt requested, postage prepaid, upon delivery
to the address indicated in the Notice, (iii) by confirmed telecopy or facsimile
transmission when sent, or (iv) overnight courier (next business day delivery)
on the next business day at 12:00 noon, whichever shall occur first, as follows:
To Seller:
KALPANA, LLC
Attention: Renee Molloy
620 Newport Center Drive
Fourteenth Floor
Newport Beach, CA 92660
Telecopier: (949) 610-8210
With a Copy to:
TARSADIA HOTELS
Attention: Edward G. Coss, Esq.
620