WILLFUL AND INTENTIONAL MATERIAL DEFAULT BY SELLER, THEN SELLER SHALL
REIMBURSE BUYER FOR ANY AND ALL BUYER'S COSTS (AS HEREINAFTER DEFINED) ACTUALLY
INCURRED AS OF THE DATE OF SUCH TERMINATION UP TO A MAXIMUM AMOUNT OF $75,000
AND, IF SUCH WILLFUL AND INTENTIONAL MATERIAL DEFAULT OCCURS WITHIN 2 BUSINESS
DAYS PRIOR TO THE DATE ON WHICH CLOSING IS SCHEDULED TO OCCUR, SELLER SHALL
REIMBURSE BUYER FOR ALL REIMBURSABLE RATE LOCK FEES (HEREINAFTER DEFINED)
ACTUALLY INCURRED OR (B) BRING A SUIT FOR SPECIFIC PERFORMANCE PROVIDED THAT ANY
SUIT FOR SPECIFIC PERFORMANCE MUST BE BROUGHT ON OR BEFORE FORTY-FIVE (45) DAYS
AFTER THE OUTSIDE CLOSING DATE; PROVIDED, HOWEVER, THE FOREGOING SHALL NOT LIMIT
(1) THE PROVISIONS OF SECTION 20 OF THIS AGREEMENT OR (2) THE ABILITY AND RIGHT
OF BUYER TO ENFORCE THE SURVIVING OBLIGATIONS. SHOULD BUYER ELECT THE REMEDY IN
SECTION 5.2(A) ABOVE, THEN UPON THE TERMINATION, BUYER SHALL PROMPTLY RETURN TO
SELLER (OR CERTIFY TO SELLER THE DESTRUCTION OF) ANY MATERIALS, DATA AND OTHER
INFORMATION 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 SURVIVING OBLIGATIONS. 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 BREACH BY SELLER. FOR PURPOSES OF THIS AGREEMENT, "BUYER'S COSTS"
SHALL MEAN THE ACTUAL OUT-OF-POCKET EXPENSES INCURRED BY BUYER AND PAID (A) TO
BUYER'S ATTORNEYS (INCLUDING IN-HOUSE ATTORNEYS) IN CONNECTION WITH THE
NEGOTIATION OF THIS AGREEMENT OR THE PROPOSED PURCHASE OF THE PROPERTY, (B) TO
THIRD PARTY CONSULTANTS IN CONNECTION WITH THE PERFORMANCE OF
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EXAMINATIONS, INSPECTIONS AND/OR INVESTIGATIONS PURSUANT TO SECTION 4 AND (C) TO
ANY POTENTIAL LENDER IN CONNECTION WITH ANY PROPOSED FINANCING OF THE PROPERTY.
THE PROVISIONS OF THIS SECTION 5.2 SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT FOR A PERIOD OF NINE (9) MONTHS. FOR PURPOSES OF THIS AGREEMENT,
"REIMBURSABLE RATE LOCK FEES" SHALL MEAN ALL NON-REFUNDABLE RATE LOCK OR SPREAD
LOCK FEES ACTUALLY PAID BY BUYER TO BUYER'S PROPOSED LENDER IN CONNECTION WITH A
RATE LOCK OF A LOAN BY BUYER THAT ACTUALLY OCCURS ON OR AFTER THE DATE THAT IS
TWO BUSINESS DAYS BEFORE CLOSING WITH PRIOR WRITTEN NOTICE TO SELLER (EMAIL IS
SUFFICIENT); PROVIDED HOWEVER THAT SELLER'S OBLIGATION HEREUNDER WITH RESPECT TO
REIMBURSABLE RATE LOCK FEES SHALL NOT EXCEED THREE HUNDRED THOUSAND DOLLARS
($300,000.00). IN THE EVENT THE CLOSING DOES NOT OCCUR UNDER THE PARALLEL
AGREEMENT PURSUANT TO THE PROVISIONS OF SECTION 5.2 THEREOF, THIS AGREEMENT
SHALL AUTOMATICALLY TERMINATE AND THE PARTIES SHALL APPLY THE PROVISIONS OF THIS
SECTION 5.2 IN THE SAME MANNER AS SECTION 5.2 OF THE PARALLEL AGREEMENT.
SELLER'S INITIALS:
MCT
BUYER'S INITIALS:
AMDR
6.
Closing and Escrow.
6.1
Escrow Instructions. Upon execution of this Agreement by both Buyer and
Seller, the parties hereto shall open an escrow with Escrow Holder (the
"Escrow") by depositing a fully-executed counterpart of this Agreement with
Escrow Holder. This Agreement shall serve as the instructions