Default by Buyer IF THE SUB-ESCROW FAILS TO CLOSE BECAUSE OF A DEFAULT BY BUYER, THEN BUYER INSTRUCTS ESCROW HOLDER TO DELIVER THE DEPOSIT TO SELLER, AND SELLER SHALL BE ENTITLED TO RETAIN THE DEPOSIT AS FULL COMPENSATION AND AS LIQUIDATED DAMAGES FOR BUYER'S BREACH OF THIS AGREEMENT, WITHOUT THE NECESSITY OF GIVING NOTICE TO BUYER, WITHOUT FURTHER INSTRUCTIONS FROM BUYER, AND NOTWITHSTANDING CONFLICTING INSTRUCTIONS FROM BUYER OR CONTRARY INSTRUCTIONS CONTAINED IN ESCROW COMPANY'S GENERAL PROVISIONS. SELLER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND RECOVER AND RETAIN THE DEPOSIT PLUS ALL COSTS OF ENFORCING AND DEFENDING SELLER'S RIGHTS UNDER THIS SECTION AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST BUYER HEREUNDER. IN THE EVENT OF A DEFAULT OR BREACH BY BUYER IN THE PERFORMANCE OF BUYER'S OBLIGATIONS HEREUNDER PRIOR TO CLOSING, SELLER'S DAMAGES WOULD BE EXTREMELY DIFFICULT OR IMPOSSIBLE TO DETERMINE, THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO BE CONSUMMATED, AND THUS SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF BUYER BRINGS AN ACTION AGAINST SELLER FOR AN ALLEGED DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT, DISPUTES SELLER'S RIGHT TO RECEIVE OR RETAIN THE DEPOSIT, AND/OR RECORDS A LIS PENDENS OR OTHERWISE ENJOINS OR RESTRICTS SELLER'S ABILITY TO SELL AND TRANSFER THE LOT (EACH, A "BUYER'S ACTION"), SELLER SHALL NOT BE RESTRICTED BY THE PROVISIONS OF THIS SECTION FROM BRINGING AN ACTION AGAINST BUYER SEEKING EXPUNGEMENT OR RELIEF FROM THAT LIS PENDENS, INJUNCTION OR OTHER RESTRAINT, AND/OR RECOVERING FEES, COSTS OR EXPENSES (INCLUDING ATTORNEYS' FEES), WHICH SELLER MAY SUFFER OR INCUR AS A RESULT OF BUYER'S ACTION SHOULD SELLER BE THE PREVAILING PARTY IN THAT ACTION, AND THE AMOUNT OF ANY SUCH FEES, COSTS OR EXPENSES AWARDED TO SELLER, AS PROVIDED IN SECTION 10.1, SHALL BE IN ADDITION TO THE LIQUIDATED DAMAGES SET FORTH HEREIN. WITHOUT LIMITING THE FOREGOING, SELLER AND BUYER WAIVE ANY AND ALL RIGHTS WHICH SELLER OR BUYER WOULD OTHERWISE HAVE TO SPECIFICALLY ENFORCE THIS AGREEMENT UNDER CALIFORNIA CIVIL CODE SECTION 3389, EXCEPT AS SET FORTH IN SECTION 10.2. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, THIS SECTION SHALL NOT LIMIT ANY RECOVERY BY SELLER OF ATTORNEYS' FEES AND OTHER COSTS UNDER THIS AGREEMENT AND SELLER OR MMB SHALL GIVE WRITTEN NOTICE ("SELLER’S NOTICE"), IN THE MANNER PRESCRIBED BY SECTION 116.340 OF THE CODE OF CIVIL PROCEDURE FOR SERVICE IN A SMALL CLAIMS ACTION, TO ESCROW HOLDER AND TO BUYER THAT BUYER IS IN DEFAULT UNDER THIS AGREEMENT AND THAT MMB OR SELLER IS DEMANDING THAT ESCROW HOLDER REMIT 3% OF THE PURCHASE PRICE FROM THE DEPOSIT TO MMB OR SELLER AS LIQUIDATED DAMAGES UNLESS, WITHIN 20 DAYS, BUYER GIVES ESCROW HOLDER BUYER'S WRITTEN OBJECTION TO DISBURSEMENT OF THE DEPOSIT AS LIQUIDATED DAMAGES. BUYER SHALL HAVE A PERIOD OF 20 DAYS FROM THE DATE OF RECEIPT OF SELLER'S NOTICE WITHIN WHICH TO GIVE ESCROW HOLDER BUYER'S WRITTEN OBJECTION TO DISBURSEMENT OF THE DEPOSIT AS LIQUIDATED DAMAGES. BUYER'S FAILURE TO TIMELY GIVE THE ESCROW HOLDER THE AFORESAID WRITTEN OBJECTION SHALL NOT BE A WAIVER OF ANY CAUSE OF ACTION, OTHER THAN A WAIVER OF THE RIGHT TO SPECIFIC PERFORMANCE OF THE AGREEMENT, THAT THE BUYER MAY HAVE AGAINST MMB OR SELLER UNDER THIS AGREEMENT UNLESS THE WAIVER IS CONDITIONED UPON SERVICE OF THE SELLER'S NOTICE AND DEMAND IN A MANNER PRESCRIBED BY SECTION 116.340 OF THE CODE OF CIVIL PROCEDURE FOR SERVICE IN A SMALL CLAIMS ACTION. Seller Initials Buyer Initials
