THE DELIVERY
TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS 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.
SELLER'S INITIALS:
BUYER'S INITIALS:
5.2
SELLER'S DEFAULT.
IF SELLER FAILS TO COMPLETE
THE SALE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY DEFAULT
OF SELLER (AND NOT DUE TO A FAILURE OF A CONDITION PRECEDENT), BUYER SHALL BE
RELEASED FROM ITS OBLIGATION TO PURCHASE THE PROPERTY FROM SELLER, AND BUYER MAY
EITHER (I) PROCEED AGAINST SELLER BY BRINGING AN ACTION FOR SPECIFIC PERFORMANCE
UNDER THIS AGREEMENT WITHOUT ANY RIGHT TO SEEK DAMAGES OF ANY KIND OR NATURE, OR
(II) TERMINATE THIS AGREEMENT IN WHICH EVENT SELLER SHALL REIMBURSE BUYER FOR
ITS ACTUAL, VERIFIABLE THIRD-PARTY OUT-OF-POCKET COSTS ACTUALLY INCURRED IN
CONNECTION WITH THIS TRANSACTION UP TO A MAXIMUM OF ONE HUNDRED THOUSAND DOLLARS
($100,000), THE DEPOSITS SHALL BE RETURNED TO BUYER AND BUYER SHALL PROMPTLY
RETURN TO SELLER THE SELLER' S DOCUMENTS. BUYER AND SELLER HEREBY ACKNOWLEDGE
AND AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR
ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY BUYER AS A RESULT OF SUCH MATERIAL
DEFAULT BY SELLER, AND AGREE THAT THE REMEDY SET FORTH IN CLAUSE (II) ABOVE IS A
REASONABLE APPROXIMATION THEREOF. ACCORDINGLY, IN THE EVENT THAT SELLER BREACHES
THIS AGREEMENT BY MATERIALLY DEFAULTING IN THE COMPLETION OF THE SALE, AND BUYER
ELECTS NOT TO EXERCISE THE REMEDY SET FORTH IN CLAUSE (I) ABOVE BUT INSTEAD
ELECTS THE REMEDY SET FORTH IN CLAUSE (II) ABOVE, SUCH SUMS SHALL CONSTITUTE AND
BE DEEMED TO BE THE AGREED AND LIQUIDATED DAMAGES OF BUYER WHICH IS NOT INTENDED
TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES
TO BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THE
FOREGOING SHALL NOT LIMIT SELLER' S OBLIGATION TO PAY TO BUYER ALL ATTORNEYS'
FEES AND COSTS OF BUYER TO ENFORCE THE PROVISIONS OF THIS SECTION5.2.
BUYER
AGREES TO, AND DOES HEREBY, WAIVE ALL OTHER REMEDIES AGAINST SELLER WHICH BUYER
MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY REASON OF SUCH DEFAULT BY SELLER.
SELLER'S INITIALS:
BUYER'S INITIALS:
6.
CLOSING AND ESCROW.
6.1
Escrow Instructions. Upon execution of this
Agreement, the parties hereto shall deposit a copy of an executed counterpart of
this Agreement with Escrow Holder and this instrument shall serve as the
instructions to Escrow Holder for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such additional and
supplementary escrow instructions as may be appropriate to enable the Escrow
Holder to comply with the terms of this Agreement; provided, however, that in
the event of any conflict between the provisions of this Agreement and any
supplementary escrow instructions, the terms of this Agreement shall control.
11
6.2
Date of Closing. Unless otherwise agreed to in
writing by the parties and subject