and other legal
requirements, and (b) the disclaimers by Seller and the waivers and releases by
Purchaser
41
set forth in Section 7.9 and Section 7.10 above are an integral part of this
Agreement, that the Purchase Price has been adjusted to reflect the same and
that Seller would not have agreed to sell the Property to Purchaser for the
Purchase Price without the disclaimers by Seller and the waivers and releases by
Purchaser set forth in Section 7.9 and Section 7.10 above.
TG ZZ
Purchaser's Initials
7.11
Purchaser Represented by Counsel.
Purchaser hereby represents and
warrants to Seller that:
(a) Purchaser is not in a significantly disparate
bargaining position in relation to Seller; (b) Purchaser is represented by legal
counsel in connection with the transaction contemplated by this Agreement; and
(c) Purchaser is purchasing the Property for business, commercial, investment or
other similar purposes.
ARTICLE VIII
TERMINATION AND REMEDIES.
8.1
SELLER'S REMEDIES.
IF THE CLOSE OF ESCROW FAILS TO OCCUR AS A
RESULT OF A DEFAULT BY PURCHASER HEREUNDER, THEN SELLER SHALL BE RELEASED FROM
SELLER'S OBLIGATION TO SELL THE PROPERTY TO PURCHASER AND SELLER SHALL BE
ENTITLED TO RETAIN THE ENTIRE DEPOSIT AS LIQUIDATED DAMAGES.
PURCHASER AND
SELLER HEREBY ACKNOWLEDGE AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR
EXTREMELY DIFFICULT TO FIX OR ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY SELLER AS
A RESULT OF SUCH DEFAULT BY PURCHASER, AND AGREE THAT THE DEPOSIT AND THE
PAYMENT BY PURCHASER OF ALL ESCROW AND TITLE CANCELLATION CHARGES AND FEES IS A
REASONABLE APPROXIMATION THEREOF.
ACCORDINGLY, IN THE EVENT THAT PURCHASER
BREACHES THIS AGREEMENT BY DEFAULTING IN THE COMPLETION OF THE PURCHASE OF THE
PROPERTY, THE DEPOSIT AND THE PAYMENT BY PURCHASER OF ALL ESCROW AND TITLE
CANCELLATION CHARGES AND FEES SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED
AND LIQUIDATED DAMAGES OF SELLER, AND SHALL BE PAID BY PURCHASER TO SELLER AS
SELLER'S SOLE AND EXCLUSIVE REMEDY.
SELLER AGREES TO WAIVE ALL OTHER REMEDIES
AGAINST PURCHASER WHICH SELLER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY
REASON OF SUCH DEFAULT BY PURCHASER; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT
APPLY TO OR LIMIT SELLER'S RIGHTS OR REMEDIES, AND SHALL NOT LIQUIDATE
PURCHASER'S LIABILITY FOR, (A) ANY BREACH BY PURCHASER UNDER THIS AGREEMENT
OTHER THAN A BREACH BY PURCHASER WHICH CAUSES THE CLOSE OF ESCROW TO FAIL TO
OCCUR, (B) PURCHASER'S OBLIGATIONS TO PAY TO SELLER ALL ATTORNEYS' FEES AND
COSTS OF SELLER TO ENFORCE THE PROVISIONS OF THIS SECTION 8.1 AND/OR THE
SURVIVING OBLIGATIONS, AND (C) THE ABILITY AND RIGHT OF SELLER TO ENFORCE THE
SURVIVING OBLIGATIONS, INCLUDING INDEMNITY OBLIGATIONS.
THE PAYMENT OF THE
DEPOSIT AND THE
42
PAYMENT BY PURCHASER OF ALL ESCROW AND TITLE CANCELLATION CHARGES AND FEES AS
LIQUIDATED DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL
CODE SECTIONS 1671, 1676 AND 1677.
TG ZZ
JH
Purchaser's Initials
Seller's Initials
8.2
PURCHASER'S REMEDIES.
IF THE CLOSE OF
ESCROW FAILS