suspected and
unsuspected. Buyer realizes and acknowledges that factual matters now unknown to
it may have given or may hereafter give rise to losses, damages, liabilities,
costs and expenses which are presently unknown, unanticipated and unsuspected,
and Buyer further agrees that the waivers and releases herein have been
negotiated and agreed upon in light of that realization and that Buyer
nevertheless hereby intends to release, discharge and acquit all Seller Parties
from any such unknown losses, damages, liabilities, costs and expenses. In
furtherance of this intention, Buyer hereby expressly waives any and all rights
and benefits conferred upon it by the provisions of California Civil Code
Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
Buyer acknowledges that the foregoing acknowledgments, releases and waivers,
including, without limitation, the waiver of the provisions of California Civil
Code Section 1542, were expressly bargained for.
10.Remedies.
(a)REMEDIES FOR BUYER'S BREACH. IN THE EVENT THE SALE OF THE PROPERTY IS NOT
CONSUMMATED BECAUSE OF A DEFAULT UNDER OR BREACH OF THIS AGREEMENT ON THE PART
OF BUYER, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY
DIFFICULT TO FIX THE ACTUAL DAMAGE TO SELLER. BUYER AND SELLER THEREFORE AGREE
THAT, IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS HEREIN PROVIDED
BY REASON OF BUYER'S BREACH OR DEFAULT, THE AMOUNT OF THE DEPOSIT IS A
REASONABLE ESTIMATE OF SELLER'S DAMAGES AND THAT SELLER SHALL BE ENTITLED TO
SAID SUM AS LIQUIDATED DAMAGES, WHICH SHALL BE SELLER'S SOLE AND EXCLUSIVE
REMEDY, EITHER AT LAW OR IN EQUITY, AND IN NO EVENT SHALL BUYER BE LIABLE FOR
LOSS OF BARGAIN, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES AS A
RESULT THEREOF. IN SUCH EVENT, THE ESCROW HOLDER SHALL, UPON WRITTEN DEMAND BY
SELLER WITHOUT JOINDER OF BUYER, IMMEDIATELY DELIVER THE DEPOSIT TO SELLER IN
CASH OR OTHER IMMEDIATELY AVAILABLE FUNDS. THE PAYMENT OF SUCH AMOUNT
22
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. THE FOREGOING DOES NOT LIMIT BUYER'S LIABILITY
UNDER ANY INDEMNITY OR OTHER PROVISION OF THIS AGREEMENT WHICH BY ITS TERMS
SURVIVES A TERMINATION OF THIS AGREEMENT OR IS TO BE PERFORMED AFTER CLOSING. TO
SIGNIFY THEIR AWARENESS AND AGREEMENT TO BE BOUND BY THE TERMS AND PROVISIONS OF
THIS PARAGRAPH 10(a), BUYER AND SELLER HAVE SEPARATELY INITIALED THIS PARAGRAPH.
SELLER INITIALS: /s/ MC
BUYER INITIALS: /s/ HS
(b)Remedies for Seller's Breach. In the event the sale of the Property is not
consummated because of default under or breach of this Agreement on the part of
Seller, Buyer shall have the