ANY OF THE TRANSACTIONS PROVIDED
FOR HEREUNDER SHALL FAIL TO CLOSE BY REASON OF BUYER'S DEFAULT, SELLER SHALL
HAVE FULLY PERFORMED OR HAVE TENDERED FULL PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER AND SHALL BE READY, WILLING AND ABLE TO CLOSE AND SELLER HAS GIVEN
BUYER WRITTEN NOTICE TO BUYER OF ITS ELECTION TO PROCEED UNDER THIS SENTENCE
WITHIN THIRTY (30) DAYS AFTER SUCH DEFAULT, THEN SELLER SHALL BE ENTITLED TO
SPECIFICALLY ENFORCE THIS AGREEMENT (AND SELLER SHALL NOT, AS TO THE PENDING
TRANSFER OF AN INTEREST IN THE PROPERTY, BE ENTITLED TO THE FOREGOING LIQUIDATED
DAMAGES BY REASON OF SUCH DEFAULT OF BUYER, OR TO BRING ANY OTHER ACTION, FOR
DAMAGES OR OTHERWISE, EXCEPT FOR DAMAGES CUSTOMARILY AVAILABLE IN SPECIFIC
PERFORMANCE ACTIONS RESULTING FROM A DELAY IN THE CLOSING, PROVIDED, FURTHER,
THAT SUCH SPECIFIC PERFORMANCE ACTION SHALL BE FILED AND PROSECUTED PURSUANT TO
AN ARBITRATION PROCEEDING UNDER SECTION 10 OF THIS AGREEMENT.
/s/ SD
/s/ KT Seller's Initials
Buyer's Initials
14
9.3 In the event the transaction herein provided shall close, the Escrow Deposit
shall be applied as a partial payment of the Purchase Price or Installment
Purchase Price, in accordance with the provisions of Section 3.1 hereof, if
applicable.
9.4 Notwithstanding anything to the contrary in this Agreement, in no event
shall Buyer or Seller be liable to the other for any consequential or punitive
damages with respect to defaults under this Agreement.
10. ARBITRATION OF DISPUTES. ANY CONTROVERSY OR CLAIM ARISING UNDER OR RELATING
TO THIS AGREEMENT OR ANY OF THE EXHIBITS ATTACHED TO IT, AND ANY PROCEEDINGS TO
ENFORCE THIS AGREEMENT OR RIGHTS UNDER (OR RELATING TO) THIS AGREEMENT AND ITS
EXHIBITS OTHER THAN THE "EXCLUDED MATTERS" (AS HEREINAFTER DEFINED) SHALL BE
SETTLED BY ARBITRATION IN THE CITY OF SAN FRANCISCO, CALIFORNIA, IN ACCORDANCE
WITH THE THEN EXISTING RULES ("RULES") OF PRACTICE AND PROCEDURE OF THE JUDICIAL
ARBITRATION & MEDIATION SERVICES ("JAMS"). NOTWITHSTANDING ANYTHING CONTAINED IN
THIS SECTION 10 TO THE CONTRARY, THE PARTIES AGREE THAT ANY ARBITRATION
HEREUNDER SEEKING SPECIFIC PERFORMANCE SHALL BE FILED, PROSECUTED AND A FINAL
DECISION OR AWARD MADE THEREIN ON AN EXPEDITED BASIS TO THE EXTENT NECESSARY TO
PROTECT THE SELLER FROM BEING UNABLE, DUE TO THE PASSAGE OF TIME, TO COMPLETE A
REVERSE, A SIMULTANEOUS OR A DEFERRED EXCHANGE OF THE SELLER'S INTEREST IN THE
PROPERTY BEING SOLD, AS MAY BE REQUIRED TO COMPLY WITH INTERNAL REVENUE CODE
SECTION 1031 AND RELATED SECTIONS AND REGULATIONS. THE PARTIES SHALL USE GOOD
FAITH EFFORTS TO SELECT A SINGLE ARBITRATOR WITHIN TEN (10) DAYS OF A REQUEST BY
ANY PARTY. IF THE PARTIES FAIL TO AGREE ON A SINGLE ARBITRATOR DURING SUCH
10-DAY PERIOD, THEN EITHER PARTY MAY REQUEST THAT JAMS APPOINT AN ARBITRATOR. AT
THE TIME OF HIS OR HER APPOINTMENT, THE ARBITRATOR WILL BE REQUESTED TO HOLD AN
ARBITRATION HEARING WITHIN THIRTY (30) DAYS. AS SOON AS PRACTICABLE AFTER
SELECTION OF THE ARBITRATOR, THE ARBITRATOR SHALL DETERMINE A REASONABLE
ESTIMATE OF THE ANTICIPATED FEES AND COSTS OF THE ARBITRATOR, AND SHALL RENDER