immediately
available funds on account of the Purchase Price,
together with an unconditional written instruction to proceed
to the Closing,
and (3) Seller thereafter fails or refuses to deliver to Escrow Agent within
three (3) Business Days thereafter the documents and instruments required to be
delivered by Seller at the
Closing,
then Buyer may, in lieu of exercising the
remedy provided for in subsection
12.2(b)(I)
(but
not
in addition thereto),
commence
appropriate
legal
proceedings
seeking
to
enforce
Seller's
obligation to
convey the Assets through specific performance (including the right to
file/record a !is pendens); provided, however, that no such proceeding for
specific
performance
shall
require
Seller to do any of the following (unless
otherwise expressly required of Seller by this Agreement): (x) change the
physical condition of the Assets or restore the same after fire, casualty or
condemnation; (y) expend money or post a bond to remove
a title objection
or
other title defect or correct
any
matter
shown on the Survey (EXCEPT AS SET
FORTH IN SUBSECTION 8.3(c)); or (z) secure any permit, approval, consent or
other agreement or instrument from any third party not affiliated
with
Seller
with respect to the Assets or Seller's conveyance of the Assets; provided,
further, that the remedy provided for in this subsection 12.2(6)(II) shall be
available to
Buyer
only
if Buyer
commences
such proceeding within not more
than NINETY (90)
DAYS
AFTER
THE
SCHEDULED CLOSING DATE. FAILURE TO FILE A
SUIT FOR SPECIFIC PERFORMANCE WITHIN NINETY (90) DAYS AFTER THE SCHEDULED
CLOSING DATE SHALL BE DEEMED A WAIVER OF SUCH REMEDY. 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
DEFAULT BY SELLER, AND AGREE THAT THE REMEDY SET FORTH IN CLAUSE (I) ABOVE IS A
REASONABLE APPROXIMATION THEREOF. ACCORDINGLY,
IN
THE EVENT THAT SELLER
BREACHES THIS AGREEMENT BY DEFAULTING IN THE COMPLETION OF THE SALE, AND BUYER
DOES NOT EXERCISE THE REMEDY SET FORTH IN CLAUSE (II)
ABOVE,
THEREBY
LIMITING
IT TO THE
REMEDY
SET FORTH
IN
CLAUSE
(I)
ABOVE,
THE
DELIVERY
OF
THE
DEPOSIT
TO
BUYER
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. BUYER AGREES TO, AND DOES HEREBY, WAIVE ALL OTHER
REMEDIES AGAINST SELLER WHICH BUYER MIGHT OTHERWISE HAVE AT LAW OR IN EQUITY BY
REASON OF SUCH DEFAULT BY SELLER. FOR THE AVOIDANCE OF DOUBT, THESE REMEDIES FOR
SELLER DEFAULT ARE ONLY AVAILABLE IF SELLER REFUSES TO CURE OR REFUSES TO BEGIN
A PROCESS TO CURE IF A DEFAULT OR BREACH CANNOT BE CURED WITHIN FIVE (5)
BUSINESS DAYS UNDER 12.2(a).
Picture 210 [lfr20191231ex10571d59b009.jpg]
BUYER'S INITIALS:
ARTICLE XIII
REAL
PROPERTY
TAXTI.EDUCTION PROCEED INGS
SECTION
13.1.Prosecution
end
Settlement
<>f Proceedin
gs.
Seller
reserves
unto itself and shall have the right to initiate,
prosecute and/or settle any tax reduction proceedings in respect of