IF LGI DE FAILS TO COMPLETE THE CONVEYANCE OF THE
PROPERTY AS PROVIDED IN THIS AGREEMENT BY REASON OF ANY MATERIAL DEFAULT OF LGI
DE, NETREIT SHALL BE RELEASED FROM NETREIT'S OBLIGATIONS TO CAUSE THE
PARTNERSHIP TO ACQUIRE THE PROPERTY FROM LGI DE, AND NETREIT MAY EITHER
(A) PROCEED AGAINST LGI DE BY BRINGING AN ACTION FOR SPECIFIC PERFORMANCE UNDER
THIS AGREEMENT WITHOUT ANY RIGHT TO SEEK DAMAGES OF ANY KIND OR NATURE
(WHICH ACTION FOR SPECIFIC PERFORMANCE SHALL BE BROUGHT (IF AT ALL) NO LATER
THAN SIXTY (60) DAYS AFTER SUCH DEFAULT BY LGI DE AND SHALL BE DILIGENTLY
PROSECUTED BY NETREIT TO COMPLETION), OR (B) TERMINATE THIS AGREEMENT IN WHICH
EVENT LGI DE SHALL REIMBURSE NETREIT FOR NETREIT'S ACTUAL, DOCUMENTED AND
REASONABLE OUT-OF-POCKET DUE DILIGENCE COSTS AND EXPENSES NOT TO EXCEED ONE
HUNDRED FIFTY THOUSAND DOLLARS ($150,000) AND THE DEPOSIT SHALL BE RETURNED TO
NETREIT. UPON SUCH TERMINATION, NETREIT SHALL PROMPTLY RETURN TO LGI DE ANY LGI
DE'S DOCUMENTS DELIVERED BY OR ON BEHALF OF LGI DE TO NETREIT, AND THEREAFTER
NEITHER PARTY SHALL HAVE ANY OBLIGATIONS OR LIABILITY UNDER THIS AGREEMENT OTHER
THAN NETREIT'S SURVIVING OBLIGATIONS.
NETREIT AND LGI DE HEREBY ACKNOWLEDGE AND
AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR
ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY NETREIT AS A RESULT OF SUCH MATERIAL
DEFAULT BY LGI DE, AND AGREE THAT THE REMEDY SET FORTH IN CLAUSE (B) ABOVE IS A
REASONABLE APPROXIMATION THEREOF. ACCORDINGLY, IN THE EVENT THAT LGI DE BREACHES
THIS AGREEMENT BY MATERIALLY DEFAULTING IN THE COMPLETION OF THE CONVEYANCE OF
THE PROPERTY, AND NETREIT ELECTS NOT TO EXERCISE THE REMEDY SET FORTH IN
CLAUSE (A) ABOVE BUT INSTEAD ELECTS THE REMEDY SET FORTH IN CLAUSE (B) ABOVE,
SUCH SUMS IN CLAUSE (B) SHALL CONSTITUTE AND BE DEEMED TO BE THE AGREED AND
LIQUIDATED DAMAGES OF NETREIT WHICH IS NOT INTENDED TO BE A FORFEITURE OR
PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO NETREIT.
LGI DE'S INITIALS:
NETREIT'S
INITIALS:
6. Closing and Escrow.
6.1 Escrow Instructions.
Upon execution of this Agreement by both NetREIT and
LGI De, the Parties hereto shall deposit a copy of a fully-executed counterpart
of this Agreement with Escrow Holder and this Agreement shall serve as the
instructions to Escrow Holder for consummation of the conveyance of the Property
provided for in this Agreement.
For purposes of this Agreement, the Escrow
shall be deemed opened on the date Escrow Holder shall have received a fully
executed original or originally executed counterparts of this Agreement from
both LGI De and NetREIT (the "Opening of Escrow"). Escrow Holder shall notify
NetREIT and LGI De in writing of the date of the Opening of Escrow. LGI De and
NetREIT agree to execute such reasonable additional and supplementary escrow
instructions as may be appropriate to enable the Escrow Holder to comply with
the terms of this Agreement; provided, however, that in the event of any
conflict between the provisions of this Agreement and any such additional or