connection and concurrently with the filing of such
specific performance action.
The provisions of this Section 24.1 shall not be
deemed to waive or limit Buyer's rights and remedies for Seller's failure to
perform its obligations which, by the express terms of this Agreement, survive
the Close of Escrow.
28
24.2
Default by Buyer.
IN THE EVENT THE CLOSING AND THE CONSUMMATION OF THE
TRANSACTION HEREIN CONTEMPLATED DOES NOT OCCUR AS HEREIN PROVIDED BY REASON OF
ANY DEFAULT OF BUYER, BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES SUFFERED BY SELLER AS A RESULT OF
BUYER'S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS
AGREEMENT, AND THAT THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION (I.E.,
THE DEPOSIT IN THE AMOUNT OF $500,000 PLUS ANY ACCRUED INTEREST THEREON)
REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A
RESULT OF SUCH FAILURE AND SUCH LIQUIDATED DAMAGES SHALL BE SELLER'S SOLE REMEDY
AS A RESULT OF ANY DEFAULT OF BUYER; PROVIDED, HOWEVER THAT THIS PROVISION WILL
NOT LIMIT SELLER'S RIGHTS UNDER SECTION 26.6, NOR WAIVE OR AFFECT BUYER'S
INDEMNITY OBLIGATIONS AND SELLER'S RIGHTS TO THOSE INDEMNITY OBLIGATIONS UNDER
THIS AGREEMENT, NOR WAIVE OR AFFECT SELLER'S RIGHT TO SPECIFICALLY ENFORCE
(WITHOUT DAMAGES) BUYER'S OBLIGATIONS TO RETURN OR PROVIDE TO SELLER DOCUMENTS,
REPORTS OR OTHER INFORMATION PROVIDED TO OR PREPARED BY OR FOR BUYER PURSUANT TO
APPLICABLE PROVISIONS OF THIS AGREEMENT.
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 AN AMOUNT EQUAL TO THE DEPOSIT (I.E., $500,000 PLUS ANY ACCRUED
INTEREST THEREON).
SAID AMOUNT WILL BE THE FULL, AGREED AND LIQUIDATED DAMAGES
FOR THE BREACH OF THIS AGREEMENT BY BUYER.
THE PAYMENT OF SUCH AMOUNT 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.
UPON DEFAULT BY BUYER, THIS AGREEMENT WILL BE TERMINATED AND,
EXCEPT FOR BUYER'S INDEMNITY AND OTHER SPECIFIC OBLIGATIONS EXPRESSLY SET FORTH
ABOVE WHICH MAY BE ENFORCED BY SELLER (IN ADDITION TO COLLECTION AND RETENTION
BY SELLER OF BUYER'S DEPOSIT AS PROVIDED HEREUNDER), NEITHER PARTY WILL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER EXCEPT FOR THE RIGHT
OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER AND ESCROW HOLDER.
Buyer's Initials: /s/ JK
Seller's Initials: /s/ PB
25.
Assignment:
Buyer will not assign this Agreement without
obtaining Seller's prior written consent, which consent may be withheld by
Seller in its sole and absolute discretion for any reason whatsoever; provided,
however, that Buyer may assign this Agreement, without Seller's consent, to an
Affiliate (as hereinafter defined).
For purposes hereof, (a) "Affiliate"