SECTION 2.3 (SOMETIMES REFERRED TO HEREIN AS THE
"LIQUIDATED DAMAGES PROVISION") SHALL NOT LIMIT SELLER'S RIGHT TO (i) RECEIVE
REIMBURSEMENT FOR OR RECOVER DAMAGES IN CONNECTION WITH BUYER'S INDEMNITY OF
SELLER AND/OR BREACH OF BUYER'S OBLIGATIONS PURSUANT TO SECTIONS 3.2, 3.4.2,
3.4.3, 12.2, and 12.16; (ii) RECOVER LITIGATION COSTS PURSUANT TO SECTION 12.9;
(iii) OBTAIN INJUNCTIVE RELIEF DUE TO BUYER'S BREACH OF ITS OBLIGATIONS UNDER
SECTIONS 3.2, 3.4.2, 3.4.3, AND 12.16, AND/OR (iv) PURSUE ANY AND ALL REMEDIES
AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT FOLLOWING ANY TERMINATION OF
THIS AGREEMENT, BUYER OR ANY PARTY RELATED TO OR AFFILIATED WITH BUYER ASSERT
ANY CLAIMS OR RIGHT TO THE PROPERTY THAT WOULD OTHERWISE DELAY OR PREVENT SELLER
FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY. THE
PARTIES ACKNOWLEDGE THAT THE PAYMENT OF THE DEPOSIT AS LIQUIDATED DAMAGES IS NOT
INTENDED AS A FORFEITURE OR
3
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. BY SIGNING THIS AGREEMENT AND BY
INITIALING BELOW, BUYER ACKNOWLEDGES AND AGREES THAT BUYER HAS FULLY CONSIDERED
THE PROVISIONS OF THIS LIQUIDATED DAMAGES PROVISION PRIOR TO ENTERING INTO THIS
AGREEMENT AND HAS HAD ADEQUATE OPPORTUNITY TO CONSULT WITH ITS OWN COUNSEL WITH
RESPECT THERETO, AND HEREBY WAIVES, AND RELEASES THE ESCROW HOLDER FROM, ANY AND
ALL CLAIMS AND LIABILITIES OF ANY KIND OR NATURE (WHETHER IN TORT OR IN
CONTRACT) ARISING FROM OR RELATING TO THE ESCROW HOLDER'S RELEASE OF THE DEPOSIT
TO SELLER.
BUYER'S INITIALS
SELLER'S INITIALS .
ARTICLE III
CONDITION OF PROPERTY: BUYER'S INSPECTION;
3.1 "AS IS" Sale. Buyer hereby acknowledges and agrees that, as of the
Close of Escrow, it shall have been afforded the opportunity to make such
investigations and inspections of the Property, Seller's records with respect to
the Property and matters related thereto as Buyer and its representatives
reasonably desire, and has entered into this Agreement on the basis of its own
investigation, prior to the Close of Escrow, of the applicable restrictions,
covenants, easements, conditions, zoning laws, building codes, environmental
matters and other land use regulations affecting the Property, including, but
not limited to, subsurface conditions and the Draft Development Documents (as
defined in subsection 3.4.1). Buyer further specifically acknowledges and agrees
that, except as set forth in Section 8.2, (i) Seller does not make any
representations or warranties of any kind whatsoever, either express or implied,
with respect to the Property (or any related matters), (ii) the Property is sold
to Buyer in an "AS IS," "WHERE IS" and "WITH ALL FAULTS" condition as of the
Closing Date, and (iii) Buyer assumes the risk that adverse legal and/or
physical conditions may not have been revealed by its investigation, including
but not limited to, any latent defects that may exist on the Property. Except as
set forth in Section 8.2, Seller makes no representations or warranties
whatsoever, including, but not limited to,