RECOVERY AGAINST BUYER FOR ATTORNEYS' FEES AND COSTS INCURRED BY SELLER IN
CONNECTION WITH SELLER'S EXERCISE OF ITS RIGHTS UNDER THIS AGREEMENT.
THE
PAYMENT OF THE DEPOSIT AS LIQUIDATED DAMAGES 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.
SELLER HEREBY WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 3389.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS
OF THIS SECTION, AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY
ITS TERMS.
/s/
TG
/s/ CH
BUYER
SELLER
(B)
SELLER DEFAULT.
THE TERM "PERMITTED EVENT"
SHALL MEAN THE OCCURRENCE OF ALL OF THE FOLLOWING ON THE CLOSING DATE:
(1) BUYER SHALL BE READY, WILLING AND ABLE TO COMPLETE CLOSING IN ACCORDANCE
WITH THIS AGREEMENT, AND (2) SELLER, NOTWITHSTANDING THE FOREGOING, SHALL HAVE
REFUSED TO COMPLETE CLOSING IN ACCORDANCE WITH THIS AGREEMENT AND SUCH REFUSAL
CONSTITUTED A DEFAULT ON THE PART OF SELLER UNDER THIS AGREEMENT.
EXCEPT UPON
THE OCCURRENCE OF A PERMITTED EVENT, BUYER AGREES THAT IT SHALL NOT (AND HEREBY
WAIVES ANY RIGHT TO) COMMENCE OR MAINTAIN ANY ACTION AGAINST SELLER FOR SPECIFIC
PERFORMANCE UNDER THIS AGREEMENT OR FOR A DECLARATORY JUDGMENT AS TO BUYER'S
RIGHTS UNDER THIS AGREEMENT.
BUYER FURTHER WAIVES ANY RIGHT TO FILE OR ASSERT
ANY LIS PENDENS AGAINST ANY PORTION OF THE PREMISES EXCEPT IN CONNECTION WITH AN
ACTION FOR SPECIFIC PERFORMANCE COMMENCED AND MAINTAINED BY BUYER IN ACCORDANCE
WITH THIS PARAGRAPH.
IF THE ONLY REASON THE SALE OF THE PREMISES IS NOT
CONSUMMATED IS BECAUSE OF THE OCCURRENCE OF THE PERMITTED EVENT, THEN AS ITS
SOLE AND EXCLUSIVE REMEDY, BUYER MAY EITHER (I) TERMINATE THIS AGREEMENT IN ITS
ENTIRETY BY DELIVERY OF NOTICE OF TERMINATION TO SELLER, WHEREUPON THE DEPOSIT
14
SHALL BE IMMEDIATELY RETURNED TO BUYER (IN WHICH CASE BUYER SHALL ALSO BE
ENTITLED TO REIMBURSEMENT FOR OUT-OF-POCKET DUE DILIGENCE COSTS AND ATTORNEYS'
FEES REASONABLY INCURRED BY BUYER IN CONNECTION WITH THIS AGREEMENT, UP TO A
MAXIMUM REIMBURSEMENT OF THIRTY FIVE THOUSAND AND 00/100 DOLLARS ($35,000.00)),
OR (II) CONTINUE THIS AGREEMENT PENDING BUYER'S ACTION FOR SPECIFIC PERFORMANCE
HEREUNDER PROVIDED APPROPRIATE PROCEEDINGS ARE COMMENCED BY BUYER NO LATER THAN
THIRTY (30) DAYS AFTER THE CLOSING DATE ORIGINALLY SCHEDULED HEREUNDER AND
PROSECUTED WITH DILIGENCE AND CONTINUITY.
NOTWITHSTANDING THE FOREGOING OR
ANYTHING SET FORTH HEREIN TO THE CONTRARY, (X) THE NON-SATISFACTION OF THE
CLOSING CONDITION SET FORTH IN SECTIONS 12(A)(I) SHALL NOT BE DEEMED TO BE A
DEFAULT BY SELLER HEREUNDER EXCEPT TO THE EXTENT CAUSED BY SELLER'S FAILURE TO
PERFORM ITS OBLIGATION TO CURE MANDATORY CURE LIENS OR ANY CONSENSUAL MORTGAGE
OR DEED OF TRUST WHICH HAVE BEEN EXECUTED BY SELLER, AND (Y) IN THE EVENT OF A
FAILURE OF ANY SUCH CLOSING CONDITIONS, BUYER'S SOLE AND EXCLUSIVE REMEDY SHALL
BE TO TERMINATE THIS AGREEMENT IN ITS ENTIRETY BY DELIVERY OF NOTICE OF
TERMINATION TO SELLER, WHEREUPON THE DEPOSIT