FEES, AND
THE DELIVERY TO SELLER BY BUYER OF THE DUE DILIGENCE MATERIALS AS LIQUIDATED
DAMAGES IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER.
SELLER'S INITIALS:
BUYER'S
INITIALS:
5.2 Seller's Default.
IF SELLER FAILS TO COMPLETE THE SALE OF THE PROPERTY AS
PROVIDED IN THIS AGREEMENT BY REASON OF ANY MATERIAL DEFAULT OF SELLER, BUYER
SHALL BE RELEASED FROM BUYER'S OBLIGATION TO PURCHASE THE PROPERTY FROM SELLER,
AND BUYER MAY EITHER (A) PROCEED AGAINST SELLER 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 SELLER AND SHALL BE
DILIGENTLY PROSECUTED BY BUYER TO COMPLETION), OR (B) TERMINATE THIS AGREEMENT
IN WHICH EVENT SELLER SHALL REIMBURSE BUYER FOR BUYER'S ACTUAL, DOCUMENTED AND
REASONABLE OUT-OF-POCKET DUE DILIGENCE COSTS AND EXPENSES NOT TO EXCEED
TWENTY-FIVE THOUSAND DOLLARS ($25,000) AND THE DEPOSIT SHALL BE RETURNED TO
BUYER.
UPON SUCH TERMINATION, BUYER SHALL PROMPTLY RETURN TO SELLER ANY
SELLER'S DOCUMENTS DELIVERED BY OR ON BEHALF OF SELLER TO BUYER, AND THEREAFTER
NEITHER PARTY SHALL HAVE ANY OBLIGATIONS OR LIABILITY UNDER THIS AGREEMENT OTHER
THAN THE BUYER'S SURVIVING OBLIGATIONS.
BUYER AND SELLER HEREBY ACKNOWLEDGE AND
AGREE THAT IT WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO FIX OR
ESTABLISH THE ACTUAL DAMAGE SUSTAINED BY BUYER AS A RESULT OF SUCH MATERIAL
DEFAULT BY SELLER, AND AGREE THAT THE REMEDY SET FORTH IN CLAUSE (B) ABOVE IS A
REASONABLE APPROXIMATION THEREOF.
ACCORDINGLY, IN THE EVENT THAT SELLER
BREACHES THIS AGREEMENT BY MATERIALLY DEFAULTING IN THE COMPLETION OF THE SALE,
AND BUYER 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 BUYER
WHICH IS NOT INTENDED TO BE A FORFEITURE OR PENALTY, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO BUYER.
SELLER'S INITIALS:
BUYER'S
INITIALS:
-13-
6. Closing and Escrow.
6.1 Escrow Instructions.
Upon execution of this Agreement by both Buyer and
Seller, 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 purchase and sale
contemplated by 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 Seller and Buyer (the "Opening of Escrow").
Escrow Holder shall notify
Buyer and Seller in writing of the date of the Opening of Escrow.
Seller and
Buyer 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