pursuant hereto;
ii.
Deduct (and disburse or credit to Buyer where appropriate) all
items chargeable to the account of Seller pursuant hereto (including, without
limitation, any credits and/or reimbursements to which Buyer is entitled where
expressly provided in this Agreement); and
iii.
Refund to Buyer any excess funds deposited by Buyer.
c.
Escrow Holder shall direct the Title Company to issue the Title
Policy to Buyer.
d.
Escrow Holder shall deliver to Buyer and Seller, originals of the
executed counterparts of the documents and instruments deposited by the parties
pursuant to Section 11 hereof that are not recorded, and copies of all recorded
documents; to Buyer only, the original of the Certification.
e.
Escrow Holder shall deliver to Buyer and Seller duplicate originals
or copies (as the case may be) of all documents delivered by Escrow Holder to
Buyer at Closing.
f.
Escrow Holder shall provide Buyer and Seller with a closing
statement covering the sale of the Property to Buyer.
Page 12
16.
Default.
a.
By Buyer.
IN THE EVENT THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT DOES NOT CLOSE DUE TO THE DEFAULT OF BUYER, THEN SELLER'S RETENTION OF
THE DEPOSIT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, AT
LAW OR IN EQUITY, FOR SUCH DEFAULT, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT
THAT EXPRESSLY SURVIVE A TERMINATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT
NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT SELLER'S RIGHTS OR DAMAGES
UNDER ANY INDEMNITIES GIVEN BY BUYER TO SELLER UNDER THIS AGREEMENT. SELLER AND
BUYER HAVE DISCUSSED THE POSSIBLE CONSEQUENCES TO SELLER IN THE EVENT THAT THE
ESCROW FAILS TO CLOSE AS A RESULT OF BUYER'S DEFAULT. SELLER AND BUYER HAVE
DETERMINED AND HEREBY AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT
TO FIX THE ACTUAL DAMAGES TO SELLER OCCURRING IN THE EVENT OF BUYER'S DEFAULT
UNDER THIS AGREEMENT. THE PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL
ATTEMPTS TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES SELLER WOULD SUFFER IN THE
EVENT OF BUYER'S NON-PERFORMANCE OF ANY OBLIGATION HEREUNDER, HEREBY AGREE THAT
A REASONABLE ESTIMATE OF SUCH DAMAGES IS AN AMOUNT EQUAL TO THE DEPOSIT, AND IN
THE EVENT THIS TRANSACTION FAILS TO CLOSE DUE TO BUYER'S DEFAULT UNDER THIS
AGREEMENT, SELLER SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT AS FULLY
AGREED LIQUIDATED DAMAGES. SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS
OR REMEDIES AGAINST BUYER, INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE.
IN THE EVENT THAT BUYER DISPUTES THE RELEASE FO THE DEPOSIT FROM ESCROW, THIS
PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECOVER ATTORNEYS' FEES AND COSTS
PURSUANT TO SECTION 25 HEREIN BELOW IN ADDITION TO THE DEPOSIT. THE PAYMENT AND
RETENTION OF THE 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 SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. SELLER HEREBY WAIVES THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389.