("INDEPENDENT
CONSIDERATION") FROM THE PROCEEDS OF THE EARNEST MONEY DELIVERED TO THE ESCROW
AGENT BY THE PURCHASER IN THE EVENT THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 7.2 HEREOF.
3.3
FORM; FAILURE TO DEPOSIT.
THE EARNEST MONEY SHALL BE IN THE FORM
OF A CERTIFIED OR CASHIER'S CHECK OR THE WIRE TRANSFER TO ESCROW AGENT OF
IMMEDIATELY AVAILABLE U.S. FEDERAL FUNDS.
IF PURCHASER FAILS TO TIMELY DEPOSIT
ANY PORTION OF THE EARNEST MONEY WITHIN THE TIME PERIOD REQUIRED, SELLER MAY
TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO PURCHASER, IN WHICH EVENT ANY
EARNEST MONEY THAT HAS PREVIOUSLY BEEN DEPOSITED BY PURCHASER WITH ESCROW AGENT
SHALL BE DELIVERED TO SELLER AND THEREAFTER THE PARTIES HERETO SHALL HAVE NO
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EXCEPT FOR RIGHTS AND OBLIGATIONS
WHICH, BY THEIR TERMS, SURVIVE THE TERMINATION HEREOF.
3.4
DISPOSITION OF EARNEST MONEY.
THE EARNEST MONEY SHALL BE APPLIED
AS A CREDIT TO THE PURCHASE PRICE AT CLOSING.
IN THE EVENT OF A TERMINATION OF
THIS AGREEMENT BY EITHER SELLER OR PURCHASER FOR ANY REASON, ESCROW AGENT IS
AUTHORIZED TO DELIVER THE EARNEST MONEY TO THE PARTY HERETO ENTITLED TO SAME
PURSUANT TO THE TERMS HEREOF ON OR BEFORE THE TENTH (10TH) BUSINESS DAY
FOLLOWING RECEIPT BY ESCROW AGENT AND THE NON-TERMINATING PARTY OF WRITTEN
NOTICE OF SUCH TERMINATION FROM THE TERMINATING PARTY, UNLESS THE OTHER PARTY
HERETO NOTIFIES ESCROW AGENT THAT IT DISPUTES THE RIGHT OF THE OTHER PARTY TO
RECEIVE THE EARNEST MONEY.
IN SUCH EVENT, ESCROW AGENT MAY INTERPLEAD THE
EARNEST MONEY INTO A COURT OF COMPETENT JURISDICTION IN THE COUNTY IN WHICH THE
EARNEST MONEY HAS BEEN DEPOSITED.
ALL REASONABLE ATTORNEYS' FEES AND COSTS AND
ESCROW AGENT'S COSTS AND EXPENSES INCURRED IN CONNECTION WITH SUCH INTERPLEADER
SHALL BE ASSESSED AGAINST THE PARTY THAT IS NOT AWARDED THE EARNEST MONEY OR, IF
THE EARNEST MONEY IS DISTRIBUTED IN PART TO BOTH PARTIES, THEN IN THE INVERSE
PROPORTION OF SUCH DISTRIBUTION.
ARTICLE 4.
DUE DILIGENCE
4.1
DUE DILIGENCE MATERIALS TO BE DELIVERED. PURCHASER ACKNOWLEDGES
RECEIPT OF ALL ITEMS LISTED ON EXHIBIT "C" ATTACHED HERETO (COLLECTIVELY, THE
"PROPERTY DOCUMENTS").
4.2
PHYSICAL DUE DILIGENCE.
COMMENCING ON THE EFFECTIVE DATE AND
CONTINUING UNTIL THE CLOSING, PURCHASER SHALL HAVE REASONABLE ACCESS TO THE
PROPERTY AT ALL REASONABLE TIMES DURING
NORMAL BUSINESS HOURS, UPON REASONABLE
NOTICE TO SELLER WITH A REPRESENTATIVE OF SELLER PRESENT AT THE PROPERTY, AND
UPON APPROPRIATE NOTICE TO TENANTS AS PERMITTED OR REQUIRED UNDER THE LEASES,
FOR THE PURPOSE OF CONDUCTING REASONABLY NECESSARY TESTS, INCLUDING SURVEYS AND
ARCHITECTURAL, ENGINEERING, GEOTECHNICAL AND ENVIRONMENTAL INSPECTIONS AND
TESTS, PROVIDED THAT (I) PURCHASER MUST GIVE SELLER TWENTY-FOUR (24) HOURS'
PRIOR TELEPHONE OR WRITTEN NOTICE OF ANY SUCH INSPECTION OR TEST, AND WITH
RESPECT TO ANY INTRUSIVE INSPECTION OR TEST (I.E., CORE SAMPLING) MUST OBTAIN
SELLER'S PRIOR WRITTEN CONSENT (WHICH CONSENT MAY BE GIVEN, WITHHELD OR
CONDITIONED IN SELLER'S REASONABLE DISCRETION), AND (II) ALL SUCH TESTS SHALL BE
CONDUCTED BY PURCHASER IN COMPLIANCE WITH PURCHASER'S RESPONSIBILITIES SET FORTH
IN SECTION 4.9 BELOW.
PURCHASER SHALL BEAR THE