IN THIS AGREEMENT, IF THE
SALE OF THE PROPERTY TO BUYER IS NOT CONSUMMATED DUE TO BUYER'S UNCURED MATERIAL
DEFAULT UNDER THIS AGREEMENT, SELLER SHALL BE ENTITLED TO RETAIN AND SHALL
RECEIVE THE DEPOSIT AS SELLER'S LIQUIDATED DAMAGES; PROVIDED, HOWEVER, THE
AMOUNT OF THE LIQUIDATED DAMAGES UNDER THIS SECTION SHALL BE LIMITED TO THE
AMOUNT OF THE INITIAL DEPOSIT UNLESS AND UNTIL BUYER HAS PROVIDED THE APPROVAL
NOTICE.
THE PARTIES AGREE THAT IT WOULD BE EXTREMELY IMPRACTICABLE AND DIFFICULT TO
ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER'S FAILURE
TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND THAT
UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE
LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENTS A REASONABLE ESTIMATE
OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE. 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 SECTION 3275
OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676, AND 1677. THE PARTIES HAVE SET FORTH
THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES
PROVISION CONTAINED IN THIS SECTION.
/s/ SK
/s/ MP
SELLER'S INITIALS
BUYER'S INITIALS
7.2 No Contesting Liquidated Damages.
As material consideration to each party's agreement to the liquidated damages
provisions stated above, each party hereby agrees to waive any and all rights
whatsoever to contest the validity of the liquidated damage provisions for any
reason whatsoever, including, but not limited to, that such provision was
unreasonable under circumstances existing at the time this Agreement was made.
7.3 Seller's Default.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, BUYER HEREBY
EXPRESSLY WAIVES, RELINQUISHES AND RELEASES ANY RIGHT, CONDITION PRECEDENT OR
REMEDY AVAILABLE TO BUYER AT LAW, IN EQUITY OR UNDER THIS AGREEMENT, UPON WHICH
TO (A) TERMINATE THE AGREEMENT, (B) REFUSE TO CLOSE THE TRANSACTION CONTEMPLATED
HEREBY, OR (C) MAKE ANY CLAIM AGAINST SELLER FOR DAMAGES, IN EACH CASE BY REASON
OF ANY OF SELLER'S REPRESENTATIONS OR WARRANTIES BEING UNTRUE, INACCURATE OR
INCORRECT IN ANY RESPECT, IF EITHER (X) BUYER HAD ACTUAL KNOWLEDGE THAT SUCH
REPRESENTATION OR WARRANTY WAS UNTRUE, INACCURATE OR INCORRECT PRIOR TO THE
EFFECTIVE DATE OR (Y) BUYER REASONABLY ESTIMATES ITS ACTUAL DAMAGES AS A RESULT
THEREOF ARE IN THE AGGREGATE AMOUNT OF LESS THAN $100,000. THE PARTIES
ACKNOWLEDGE THAT THE REMEDY OF SPECIFIC PERFORMANCE SHALL BE AVAILABLE TO BUYER
UNDER THIS AGREEMENT.
/s/ SK
/s/ MP
SELLER'S INITIALS
BUYER'S INITIALS
7.4 Right to Cure.
In the event of a breach of this Agreement by Buyer or Seller, the non-breaching
party shall provide the breaching party with written notice of such breach. The
breaching party shall then have a commercially reasonable time from receipt of
such notice to cure said breach, not to exceed ten (10) days, in which case such
party shall not be in default of this Agreement;