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12926447.1 <br />force and effect, or for obligations which expressly survive the termination of the <br />Purchase Option; or (ii) bring and pursue an action for specific performnnce of <br />the Purchase Option; or (iii) waive the default and proceed to close the <br />transaction contemplated herein. As a condition precedent to Lessee exercising <br />any right it may have to bring an action for specific performance hereunder, <br />Lessee must commence such an action within thirty (30) days after the <br />occurrence of Lessor's default. Lessee agrees that its failure to timely commence <br />such an action for specific performance within such thirty (30) day period shall <br />be deemed a wa.iver by it of its right to commence an action for speeitic <br />performance as well as a waiver by it of any right it may have to file or record a <br />notice oflis pendens or notice ofpendency of action or similar notice against the· <br />Premises. <br />b)If, following Lessee's timely ond proper exercise of the Purchase Option, the <br />Closing fails to occur as a result of Lessee's breach or default, and if Lessee <br />should remain in default in any material respect in the performance of any of <br />Lessee's obligations with respect to the purchase of die Premises after tho fifth <br />(5th) Business Day following the deliveiy by Lessor to Lessee of written notice <br />of such default, THEN AND IN SUCH EVENT, NOTWITHSTANDING <br />ANYTHING HEREIN TO nm CONTRARY, LESSEE AND LESSOR <br />AGREE THAT LESSOR WILL INCUR DAMAGES BY REASON OF SUCH <br />DEFAULT BY LESSEE, WHICH DAMAGES SHALL BE IMPRACTICAL <br />AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. <br />LESSEE AND LESSOR, IN A REASONABLE EFFORT TO ASCERTAIN <br />WHAT LESSOR'S DAMAGES WOULD BE IN THE EVENT OF SUCH <br />DEFAULT BY LESSEE HAVE AGREED BY PLACING THEIR INITIALS <br />BELOW THAT THE AMOUNT OF THE DEPOSIT SHALL BE DEEMED TO <br />CONSTITUTE A REASONABLE ESTIMATE OF LESSOR'S DAMAGES <br />UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA <br />CIVIL CODE AND THE PAYMENT AND RETENTION OF SUCH AMOUNT <br />AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR <br />PENAL TY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE <br />SECTIONS 3275 OR 3369. IN THE EVENT OF AND FOR SUCH DEFAULT <br />BY LESSEE; LESSOR SHALL RETAIN THE DEPOSIT AS LIQUIDATED <br />DAMAGES AS LESSOR'S SOLE REMEDY THEREFOR, UNLESS LESSEE <br />WRONGFULLY REFUSES TO CAUSE ESCROW HOLDER TO CANCEL <br />THE ESCROW OR TO RELEASE THE DEPOSIT TO LESSOR, IN WHICH <br />INSTANCE LESSOR SHALL ALSO BE ENTITLED TO ALL COSTS AND <br />EXPENSES, INCLUDING ACTUAL ATTORNEYS' FEES INCURRED BY <br />LESSOR WITH RESPECT TO THOSE CONSEQUENTIAL DAMAGES, IF <br />ANY, WHICH MAY BE INCURRED BY LBSSOR,AFTBR THE CLOSING <br />DATE OR OTHER TERMINATION OF THIS AGREEMENT OR <br />CANCELATION OF THE TRANSACTIONS HEREIN CONTEMPLATED BY <br />REASON OF THE CLOUD ON TITLE TO THE PROPERTY WHICH MAY <br />RESULT FROM LESSBE'S WRONGFUL FAILURE TO CANCEL THE <br />ESCROW AND THIS AGREEMENT. ESCROW HOLDER IS HEREBY <br />INSTRUCTED TO IMMEDIATELY RELEASE THE DEPOSIT TO LESSOR <br />IN THE EVENT OF A BREACH BY LESSEE HEREUNDER. IN ADDITION, <br />IF LESSEB WRONGFULLY FAILS TO CAUSE SUCH SUM TO BE <br />DELIVERED TO LBSSOR AS HERETOFORE PROVIDED, INTEREST <br />SHALL ACCRUE THEREON AT THE MAXIMUM RATE ALLOWED BY <br />l3 <br />EXHIBIT 1