retain the Deposit as liquidated damages
for any and all claims for defaults, indemnification or otherwise hereunder, IT
BEING AGREED BY SELLERS AND PURCHASER THAT, THE DAMAGES BY REASON OF ANY SUCH
DEFAULT BY PURCHASER ARE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN, AND THE
AMOUNT OF THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE
DAMAGES SELLER WOULD SUFFER. ACCORDINGLY, THE PARTIES AGREE THAT, IN SUCH EVENT,
THE DEPOSIT SHALL BE PAID BY THE ESCROW AGENT TO SELLERS AS LIQUIDATED DAMAGES,
AND THAT SUCH PAYMENT IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE
EFFECTIVE DATE, AND UPON THE DELIVERY OF THE DEPOSIT TO SELLERS, THIS AGREEMENT
SHALL BE DEEMED CANCELED AND OF NO FURTHER FORCE OR EFFECT, AND NO PARTY SHALL
HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT THOSE ARISING UNDER
PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE THE TERMINATION HEREOF.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SELLERS'
SOLE AND EXCLUSIVE REMEDIES FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT
LIMITATION, ANY DEFAULT OR BREACH BY PURCHASER OF ANY REPRESENTATION, WARRANTY,
COVENANT OR OBLIGATION SET FORTH IN THIS AGREEMENT, SHALL BE (1) THE RIGHT,
SOLELY TO THE EXTENT EXPRESSLY PERMITTED IN THIS SECTION 20(a), TO TERMINATE
THIS AGREEMENT AND RETAIN THE DEPOSIT, (2) SOLELY TO THE EXTENT EXPRESSLY
PERMITTED IN SECTION 20(b), THE RIGHT TO PURSUE DAMAGES AGAINST PURCHASER, AND
(3) THE RIGHT TO PURSUE INJUNCTIVE RELIEF PREVENTING BREACHES OF THE
CONFIDENTIALITY PROVISIONS OF SECTION 29, AND NO SELLER MAY OTHERWISE OBTAIN ANY
DAMAGES, AN INJUNCTION, SPECIFIC PERFORMANCE OR ANY OTHER LEGAL OR EQUITABLE
RELIEF OR REMEDY AGAINST ANY PURCHASER RELATED PARTY IN CONNECTION WITH ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. SELLERS' RETENTION OF THE DEPOSIT AS LIQUIDATED DAMAGES IS
NOT INTENDED AS A FORFEITURE OR PENALTY UNDER CALIFORNIA CIVIL CODE
SECTIONS 3275 OR 3369, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES
TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE.
BY THEIR SEPARATELY EXECUTING THIS SECTION 20(a) BELOW, PURCHASER AND SELLERS
ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTOOD THE ABOVE PROVISION COVERING
LIQUIDATED DAMAGES, AND THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED
THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT
WAS EXECUTED.
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DOC ID - 21031260.28
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PURCHASER'S INITIALS
SELLERS' INITIALS
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DOC ID - 21031260.28
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(b)
If Seller validly terminates this Agreement pursuant to a right given to
it hereunder after the expiration of the Due Diligence Period and Purchaser
files any lis pendens or other form of attachment against any portion of the
Properties (other than in connection with (i) a legal action timely commenced by
Purchaser in good faith contesting Sellers' right to terminate this Agreement or
(ii) pursuing