OCCUR BECAUSE
OF BUYER'S DEFAULT, BREACH OR FAILURE TO PERFORM (NOT DUE TO SELLER'S ACTS OR
OMISSIONS OR SELLER'S BREACH) HEREUNDER, THE DAMAGES TO SELLER WOULD BE
EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE, THE
DEPOSIT IS A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, SUCH DAMAGES
INCLUDING COSTS OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT, COSTS OF
COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER
UPON BUYER'S DEFAULT, OPPORTUNITY COSTS IN KEEPING THE PROPERTY OUT OF THE
MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH.
ACCORDINGLY,
BUYER AGREES THAT UPON BUYER'S RECEIPT OF NOTICE OF SUCH DEFAULT OR BREACH FROM
SELLER, WHICH NOTICE SHALL SPECIFY THE BREACH IN DETAIL, AND FAILURE BY BUYER TO
CURE SAID BREACH, DEFAULT OR FAILURE TO PERFORM WITHIN 30 DAYS AFTER RECEIPT OF
SUCH NOTICE, AND CLOSE OF ESCROW FAILS TO OCCUR BECAUSE OF SUCH BREACH, DEFAULT
OR FAILURE TO PERFORM, SELLER SHALL BE ENTITLED TO THE DEPOSIT AS LIQUIDATED
DAMAGES, AS SELLER'S SOLE REMEDY IN THE EVENT OF ANY SUCH MATERIAL BREACH OR
DEFAULT BY BUYER HEREUNDER. SELLER WAIVES ANY RIGHT TO SPECIFICALLY ENFORCE
BUYER'S OBLIGATION TO PURCHASE THE PROPERTY (INCLUDING THE PROVISIONS OF CIVIL
CODE SECTIONS 1680 AND 3389). THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH
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.
Initials of Buyer: TO/JR
Initials of Seller: TMT
17.
REAL ESTATE BROKERAGE COMMISSION.
SELLER HAS BEEN REPRESENTED BY
CB RICHARD ELLIS INC. ("BROKER") AND SHALL BE RESPONSIBLE FOR ALL COMPENSATION
THAT MAY DUE BROKER RELATED TO THIS TRANSACTION.
BUYER HAS NOT BEEN REPRESENTED
BY A BROKER IN RELATION TO THIS TRANSACTION.
EACH PARTY SHALL INDEMNIFY AND
HOLD THE OTHER FREE AND HARMLESS FROM AND AGAINST ALL COSTS AND LIABILITIES
INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND THE COSTS AND EXPENSES OF
LITIGATION, FOR CAUSES OF ACTION OR PROCEEDINGS WHICH MAY BE INSTITUTED BY ANY
BROKER, AGENT OR FINDER, LICENSED OR OTHERWISE, CLAIMING THROUGH, UNDER OR BY
REASON OF THE CONDUCT OF THE INDEMNIFYING PARTY IN CONNECTION WITH THIS
TRANSACTION.
THE PARTIES FURTHER AGREE THAT NO BROKER SHALL BE A PARTY TO OR A
THIRD PARTY BENEFICIARY OF THIS AGREEMENT OR THE ESCROW, AND THAT NO CONSENT OF
ANY BROKER SHALL BE NECESSARY FOR ANY AGREEMENT, AMENDMENT OR DOCUMENT WITH
RESPECT TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
18.
MISCELLANEOUS.
18.1
ASSIGNMENT.
NEITHER PARTY SHALL ASSIGN THIS AGREEMENT OR ITS
RIGHTS AND OBLIGATIONS HEREUNDER WITHOUT OBTAINING THE OTHER PARTY'S CONSENT,
WHICH CONSENT SHALL NOT UNREASONABLY BE WITHHELD.
HOWEVER, BUYER MAY ASSIGN ITS
RIGHTS AND DELEGATE ITS DUTIES UNDER THIS AGREEMENT WITHOUT SELLER'S CONSENT, TO
AN ENTITY OF WHICH BUYER OR ITS AFFILIATE, THE OLSON COMPANY, A CALIFORNIA
CORPORATION, IS THE MANAGER OR MANAGING MEMBER, PROVIDED THAT BUYER GIVES
WRITTEN NOTICE OF SUCH ASSIGNMENT TO SELLER AND ESCROW HOLDER AT LEAST FIVE