IN THE EVENT OF A DEFAULT BY BUYER,
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE.
THEREFORE, BY
PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN
AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S
DAMAGES AND AS SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN
EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF
BUYER.
NOTWITHSTANDING THE FOREGOING, HOWEVER, IN ADDITION TO SUCH LIQUIDATED
DAMAGES
AMOUNT, SELLER SHALL BE ENTITLED TO RECOVER FROM BUYER THE FOLLOWING:
(1) REASONABLE, OUT-OF-POCKET LEGAL FEES AND COSTS INCURRED BY SELLER TO RECOVER
THE LIQUIDATED DAMAGES; AND (2) BUYER'S OBLIGATIONS UNDER ANY INDEMNITIES THAT
SURVIVE THE TERMINATION OF THIS AGREEMENT.
SELLER HEREBY WAIVES ANY AND ALL
BENEFITS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3389.
INITIALS:
Seller
/s/ JPC
Buyer
/s/ GOR
(b) SELLER'S DEFAULT.
IF ESCROW FAILS TO CLOSE DUE TO A DEFAULT BY SELLER, AND
SUCH DEFAULT IS NOT CURED WITHIN THREE BUSINESS DAYS AFTER WRITTEN NOTICE
THEREOF FROM BUYER, BUYER MAY EITHER (I) TERMINATE THIS AGREEMENT AND RECEIVE A
REFUND OF THE DEPOSIT TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND IF SUCH
DEFAULT BY SELLER WAS A MATERIAL DEFAULT OF A MATERIAL OBLIGATION OF SELLER
HEREUNDER, PURSUE AN ACTION FOR MONETARY DAMAGES AGAINST SELLER, BUT SUCH ACTION
SHALL BE LIMITED TO RECOVERY OF BUYER'S ACTUAL OUT OF POCKET DAMAGES UP TO
$100,000.00, AND BUYER HEREBY WAIVES THE RIGHT TO RECOVER CONSEQUENTIAL OR
PUNITIVE DAMAGES; OR (II) PURSUE AN ACTION FOR SPECIFIC PERFORMANCE.
EXCEPT AS
OTHERWISE PROVIDED ABOVE, BUYER MAY NOT PURSUE ANY OTHER RIGHTS OR REMEDIES AT
LAW OR IN EQUITY WITH RESPECT TO THIS AGREEMENT OR THE PROPERTY.
Notwithstanding anything herein to the contrary, buyer shall be deemed to have
elected to terminate this Agreement if buyer fails to deliver to Seller written
notice of its intent to file a claim or assert a cause of action for specific
performance against Seller on or before THIRTY (30) Days following the scheduled
Closing Date or, having given such notice, fails to file a lawsuit asserting
such claim or cause of action in the county in which the Property is located
within two months following the scheduled Closing Date.
IN NO EVENT SHALL
SELLER'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS OR
AFFILIATES, ANY OFFICER, MANAGER, DIRECTOR, EMPLOYEE OR AGENT OF THE FOREGOING,
OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY FOR ANY CLAIM,
CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR
OTHERWISE
INITIALS:
Seller
/s/ JPC
Buyer
/s/ GOR
14. Maintenance; Possession.
Between the Effective Date and the Closing, Seller
shall cause the Property to be maintained in substantially the condition
existing upon the Effective Date.
Prior to the Closing, Buyer may not
materially alter the Property in any way without Seller's written
authorization.
Possession of