shall be promptly refunded to Buyer.
(c) Buyer's Failure/Liquidated Damages. If Buyer fails to deposit any required
sums or documents by the prescribed time or in the prescribed manner or to
perform any other covenant when due hereunder, or if Buyer commits any other
breach of this Agreement or the Entry Permit, then Seller, at its option, may
terminate this Agreement and Escrow by giving written notice to Buyer and
Escrowholder. Upon such notice, Escrow shall be cancelled, all instruments
deposited with Escrowholder for recordation or delivery at the Closing shall be
returned to the respective parties who deposited same, and Buyer shall pay all
title and escrow cancellation charges and fees.
IN ADDITION, SELLER AND BUYER AGREE THAT, BASED UPON THE CIRCUMSTANCES NOW
EXISTING, KNOWN OR UNKNOWN, IT WOULD BE EXCESSIVELY COSTLY AND IMPRACTICABLE TO
ESTABLISH SELLER'S DAMAGES BY REASON OF BUYER'S DEFAULT RESULTING IN A FAILURE
OF BUYER TO PURCHASE THE PROPERTY, AND, THEREFORE, BUYER AND SELLER AGREE THAT
IT WOULD BE REASONABLE TO AWARD SELLER LIQUIDATED DAMAGES IN THE AMOUNT OF THE
DEPOSIT SPECIFIED IN SECTION 4 PLUS ANY ACCRUED INTEREST ON SAID DEPOSIT. BY
THEIR RESPECTIVE INITIALS SET FORTH BELOW, SELLER AND BUYER ACKNOWLEDGE AND
AGREE THAT THE DEPOSIT, PLUS ANY INTEREST ACCRUED ON THE DEPOSIT, IS REASONABLE
AS LIQUIDATED DAMAGES FOR A DEFAULT OF BUYER THAT RESULTS IN A FAILURE OF BUYER
TO PURCHASE THE PROPERTY AND SHALL BE IN LIEU OF ANY OTHER RELIEF, RIGHT OR
REMEDY, AT LAW OR IN EQUITY, TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED BY A
REASON OF A BUYER'S DEFAULT THAT RESULTS IN A FAILURE OF BUYER TO PURCHASE THE
PROPERTY, BUT NOTHING CONTAINED HEREIN SHALL LIMIT SELLER'S RIGHTS AND REMEDIES
FOR BUYER'S DEFAULT OCCURRING AFTER THE CLOSE OF ESCROW, FOR BUYER'S DEFAULT
UNDER OBLIGATIONS WHICH ARE INTENDED TO SURVIVE A TERMINATION OF THIS AGREEMENT
OR FOR BUYER'S DEFAULT UNDER THE ENTRY PERMIT. FOLLOWING A DEFAULT BY BUYER THAT
RESULTS IN A FAILURE OF BUYER TO PURCHASE THE PROPERTY, ESCROWHOLDER SHALL
DISBURSE THE DEPOSIT PLUS ACCRUED INTEREST THEREON TO SELLER AS LIQUIDATED
DAMAGES UPON THE WRITTEN DEMAND OF SELLER ALONE. THE RETENTION OF THE DEPOSIT BY
SELLER PLUS ACCRUED INTEREST AS LIQUIDATED DAMAGES AS HEREIN PROVIDED 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.
11
Buyer's
Seller's
Initials
Initials
(d) Seller's Failure. Except as specifically provided in this Agreement with
regard to Buyer's right to terminate and receive a refund of the Deposit, in the
event of a default by Seller of its obligations under this Agreement, Buyer's
sole and exclusive remedy shall be an action for specific performance of this
Agreement, which action shall be brought, if at all, within ninety (90) days
following Seller's default, and Buyer hereby waives and relinquishes all claims
for damages, including but not limited to lost profits, arising by reason