exercise the same but shall fail to do so
within the time and in the manner herein provided, such option shall
automatically terminate without further action by either party (except that such
option shall continue to be effective with respect to the exercise period
occurring at the end of each subsequent Extended Term, if any).
No failure by
Lessor to notify Guarantor of any defect in any attempted exercise of the
foregoing option shall be deemed a waiver by Lessor of the right to insist upon
Guarantor's exercise of such option in strict accordance with the provisions
hereof.
In the event that Guarantor shall properly and timely exercise such
option, then such transaction shall be consummated on or within ten (10) days
following the expiration of Fixed Term or Extended Term, as applicable (the
"Outside Closing Date").
(b)
Damages.
(i)
Liquidated Damages.
IF, FOLLOWING A
VALID AND PROPER EXERCISE OF ANY OPTION, GUARANTOR FAILS TO COMPLETE THE
PURCHASE OF THE APPLICABLE FACILITY AND SUCH FAILURE CONSTITUTES A BREACH
HEREOF, THEN LESSOR, AT ITS OPTION, MAY TERMINATE THE PURCHASE CONTRACT FORMED
BY GUARANTOR'S EXERCISE OF SUCH OPTION AND THE ESCROW BY GIVING WRITTEN NOTICE
TO GUARANTOR AND ESCROW HOLDER AND, THEREUPON, THE ESCROW SHALL BE CANCELLED,
ALL DOCUMENTS SHALL BE RETURNED TO THE RESPECTIVE PARTIES WHO DEPOSITED THE
SAME, AND GUARANTOR SHALL PAY ALL TITLE AND ESCROW CANCELLATION CHARGES AND ALL
OF LESSOR'S LEGAL FEES AND COSTS.
IN ADDITION, LESSOR AND GUARANTOR AGREE THAT,
BASED ON THE CIRCUMSTANCES NOW EXISTING, KNOWN OR UNKNOWN, IT WOULD BE
EXCESSIVELY COSTLY AND IMPRACTICABLE TO ESTABLISH LESSOR'S DAMAGES BY REASON OF
GUARANTOR'S DEFAULT RESULTING IN A FAILURE OF THE ESCROW TO CLOSE, AND,
THEREFORE, LESSOR AND GUARANTOR AGREE THAT IT WOULD BE REASONABLE TO AWARD
LESSOR LIQUIDATED DAMAGES IN THE AMOUNT OF THE OPENING DEPOSIT PLUS ANY ACCRUED
INTEREST ON THE OPENING DEPOSIT.
BY THEIR RESPECTIVE INITIALS SET FORTH BELOW,
LESSOR AND GUARANTOR ACKNOWLEDGE AND AGREE THAT THE OPENING DEPOSIT, PLUS ANY
INTEREST ACCRUED ON THE OPENING DEPOSIT, TOGETHER WITH PAYMENT OF LESSOR'S LEGAL
FEES AND COSTS, IS REASONABLE AS LIQUIDATED DAMAGES FOR A DEFAULT OF GUARANTOR
UNDER THE PURCHASE CONTRACT FORMED BY GUARANTOR'S EXERCISE OF SUCH OPTION THAT
RESULTS IN A FAILURE OF THE ESCROW TO CLOSE AND SHALL BE IN LIEU OF ANY OTHER
RELIEF, RIGHT OR REMEDY, AT LAW OR IN EQUITY, TO WHICH LESSOR MIGHT OTHERWISE BE
ENTITLED BY REASON OF GUARANTOR'S DEFAULT THAT RESULTS IN A FAILURE OF THE
ESCROW TO CLOSE, BUT NOTHING CONTAINED HEREIN SHALL LIMIT LESSOR'S RIGHTS AND
REMEDIES FOR GUARANTOR'S DEFAULT OCCURRING AFTER THE CLOSE OF ESCROW OR FOR
LESSEE'S DEFAULT UNDER THE LEASE, AS HEREBY AMENDED.
ESCROW HOLDER IS HEREBY
AUTHORIZED AND INSTRUCTED TO RELEASE THE OPENING DEPOSIT PLUS ACCRUED INTEREST
THEREON TO LESSOR UPON THE DELIVERY OF UNILATERAL WRITTEN INSTRUCTIONS THEREOF
TO ESCROW HOLDER BY LESSOR, AND ESCROW HOLDER IS HEREBY RELIEVED OF ALL
LIABILITY THEREFOR.
IF GUARANTOR WRONGFULLY ATTEMPTS TO INTERFERE WITH THE
RELEASE OF ANY SUCH SUMS BY ESCROW HOLDER TO LESSOR,