the term "Buyer's Due Diligence Expenses") shall
mean Buyer's third party actual out-of-pocket expenses incurred by Buyer and
paid (x) to Buyer's attorneys in connection with the negotiation of this
Agreement, and (y) to unrelated and unaffiliated third party consultants in
connection with the performance of examinations, inspection and/or
investigations of the Real Property.
Default by Buyer
. IN THE EVENT THAT EITHER CLOSING DOES NOT OCCUR IN ACCORDANCE WITH THE TERMS
OF THIS AGREEMENT BY REASON OF ANY DEFAULT OF BUYER AND BUYER FAILS TO CURE SUCH
DEFAULT WITHIN FIVE (5) BUSINESS DAYS AFTER WRITTEN NOTICE FROM SELLER (OTHER
THAN MONETARY DEFAULTS, FOR WHICH THERE SHALL BE NO CURE PERIOD), BUYER AND
SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE
THE DAMAGES WHICH SELLER MAY SUFFER. THEREFORE BUYER AND SELLER DO HEREBY AGREE
THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER
IN THE EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE
PROPERTY IS AND SHALL BE AN AMOUNT EQUAL TO THE DEPOSIT (WHICH DEPOSIT, FOR
PURPOSES OF LIQUIDATED DAMAGES PAYABLE TO SELLER PURSUANT TO THIS SECTION 16.2
IN THE EVENT THAT THE SECOND CLOSING DOES NOT OCCUR AS A RESULT OF A BREACH OF
THIS AGREEMENT BY BUYER FROM AND AFTER THE FIRST CLOSING DATE, SHALL BE EQUAL TO
SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($7,500,000.00) OF THE
SECOND CLOSING FUNDS), TOGETHER WITH THE ACCRUED INTEREST THEREON; AND, AS
SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) FOR BUYER'S
BREACH OF ITS OBLIGATION TO CLOSE ESCROW AND PURCHASE THE PROPERTY, SAID AMOUNT
SHALL BE DISBURSED TO SELLER AS THE FULL, AGREED AND LIQUIDATED DAMAGES FOR A
BREACH OF THIS AGREEMENT BY BUYER WHICH RESULTS IN EITHER CLOSING NOT OCCURRING.
THE PARTIES ACKNOWLEDGE THAT SUCH PAYMENT OF THE DEPOSIT 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 UNDER
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
SUCH PAYMENT OF THE DEPOSIT
IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES FOR SUCH BREACH.
NOTHING CONTAINED IN THIS SECTION 16.2 SHALL LIMIT SELLER'S RIGHT TO RECEIVE
REIMBURSEMENT FOR COSTS AND EXPENSES PURSUANT TO SECTION 18.5 BELOW, NOR WAIVE
OR AFFECT BUYER'S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS.
________/s/ JKB_____________ ___________/s/ DR___________
SELLER'S INITIALS BUYER'S INITIALS
-35-
Indemnities; Defaults after Closing or Termination
. The limitations on the parties' remedies set forth in Sections 16.1 and 16.2
above will not be deemed to prohibit either party from (i) specifically seeking
indemnification from the other for any matter with respect to which such other
party has agreed hereunder to provide indemnification or from seeking damages
from such other party in the event it fails or refuses to provide such
indemnification; (ii) subject to the terms, conditions and limitations of this
Agreement, seeking damages incurred during the period of time after Closing that
a