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DIFFICULT AND IMPRACTICAL TO ASCERTAIN THE EXTENT OF THE DET NT TO SELLER. THE PARTIES HAVE DETERMINED AND AGREED THAT THE ACTUAL AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY SELLER AS A RESULT OF ANY SUCH DEFAULT IS DIFFICULT OR IMPRACTICABLE TO DETERMINE AS OF THE DATE OF THIS AGREEMENT AND THAT THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF THE AMOUNT OF SUCH DAMAGES. FOR THESE REASONS,THE PARTIES AGREE THAT IF THE PURCHASE AND SALE IS NOT CONSUMMATED BECAUSE OF BUYER'S DEFAULT, SELLER SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES. SELLER AGREES THAT THESE LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER MONETARY RELIEF OR OTHER REMEDY INCLUDING, WITHOUT LIMITATION, SPECIFIC PERFORMANCE, TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED UNDER THIS AGREEMENT, AT LAW OR IN EQUITY, AND SHALL BE SELLER'S SOLE AND EXCLUSIVE RIGHT AND REMEDY. NOTHING CONTAINED HEREIN SHALL IN ANY MANNER LIMIT THE AMOUNT OF DAMAGES OBTAINABLE PURSUANT TO AN ACTION UNDER ANY HOLD HARMLESS OR INDEMNIFICATION PROVISION HEREOF OR ATTORNEYS' FEES RECOVERABLE PURSUANT TO THIS AGREEMENT. Seller Buyer 16. Seller's Default. If Seller is unable to convey title to the Property in accordance with the conditions set forth in this Agreement, or if there has occurred a material breach of any of Seller's representations, warranties,and/or covenants, Buyer may, at Buyer's option, terminate this Agreement by written notice forwarded to Seller and Escrow Officer, in which event the Deposit shall be returned to Buyer,or, in the alternative, Buyer may continue to respect and abide by the terms of the Agreement. If Seller fails to consummate this Agreement for any reason(other than Buyer's default or a termination of this Agreement by Buyer pursuant to a right to do so expressly provided for in the Agreement),Buyer may elect to enforce,by an action for specific performance, this Agreement, and seek damages against Seller, and seek any other remedies available at law or in equity. The exercise of one or more of said rights or remedies shall not impair Buyer's right to exercise any other right or remedy provided for in this Agreement. All remedies are cumulative and no delay or omission in the exercise of any right or remedy accruing to Buyer upon the breach by Seller shall impair such right or remedy or be construed as a waiver of any such breach theretofore or thereafter accruing. 17. Covenants of Seller. Seller hereby covenants with Buyer as follows that from the Effective Date through the CIosing of Escrow or termination of this Agreement,that: (a) Seller shall not(i) amend cr waive any right related to the Property or(ii) create any new encumbrances or enter into any lease or other agreement of any type affecting the Property that would survive the Close of Escrow,without Buyer's prior written consent in each instance. (b) Seller, at its sole cost and expense, will operate and use the Property in substantially the same manner as it has operated the Property before the Effective Date and will not change the use thereof, and will not make any material or permanent alterations or modifications to the Property without Buyer's prior written consent. (c) Buyer and Buyer's representatives, agents, and designees shall have the right at all reasonable times until Close of Escrow to enter the Property as provided in Section 6(a)(iR). (d) Seller shall promptly notify Buyer of any material change in any condition with respect to the Property or of any material event or circumstance that makes any representation or warranty of Seller under this Agreement untrue or misleading. -9- PSA Stockton-Facn»ngton Sanchez Final 05.30.07