and credited towards the Contribution Amount at Closing.
(b) The balance of the Contribution Amount (i.e., the Contribution Amount, minus
the Deposit and any interest earned on the Deposit), together with RREEF's share
of all closing costs, shall be deposited with Escrow Holder by wire transfer or
in immediately available funds not later than the time required in order to
close the transaction contemplated hereby at 11:59 P.M. Pacific Daylight Time on
the Closing Date.
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(c) In the event RREEF rightfully terminates this Agreement at or prior to the
end of the Contingency Period, the Deposit and all interest earned thereon,
without any deductions whatsoever, shall be returned to RREEF, and neither party
shall have any further rights or obligations hereunder, except as provided in
Sections 3.02, 9.03, 9.15 and 9.17 hereof.
(d) AFTER RREEF'S ELECTION TO PROCEED HEREUNDER AT THE CLOSE OF THE CONTINGENCY
PERIOD, IF THE CLOSING FAILS TO OCCUR DUE TO A BREACH OF ANY COVENANTS OF RREEF
HEREUNDER, INCLUDING, WITHOUT LIMITATION, RREEF'S WRONGFUL FAILURE TO CLOSE (BUT
NOT IF THE CLOSING FAILS TO OCCUR AS A CONSEQUENCE OF THE FAILURE OF ANY
CONDITION PRECEDENT SPECIFIED IN SECTION 4.01(a) OR ELSEWHERE HEREIN)
CARRAMERICA SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT (INCLUDING ALL
INTEREST EARNED THEREON) AS LIQUIDATED DAMAGES AND NOT A FORFEITURE OR PENALTY
WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL
CODE SECTIONS 1671, 1676 AND 1677. THE PARTIES ACKNOWLEDGE THAT CARRAMERICA'S
ACTUAL DAMAGES IN THE EVENT OF SUCH A DEFAULT BY RREEF WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE AMOUNT OF THE
DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES' REASONABLE
ESTIMATE OF CARRAMERICA'S DAMAGES IN SUCH EVENT. THE PARTIES FURTHER ACKNOWLEDGE
THAT THE DEPOSIT HAS BEEN AGREED UPON AS CARRAMERICA'S SOLE AND EXCLUSIVE REMEDY
AT LAW OR IN EQUITY AGAINST RREEF EXCEPT FOR ANY RIGHTS CARRAMERICA MAY HAVE
UNDER SECTIONS 3.02, 9.03, 9.15 AND 9.17 HEREOF.
RREEF's Initials
CarrAmerica's Initials
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(e) If the Closing fails to occur due to a breach of any material covenants of
CarrAmerica hereunder, including, without limitation, CarrAmerica's wrongful
failure to close (but not if the Closing fails to occur as a consequence of the
failure of any condition precedent specified in Section 4.01(b) or elsewhere
herein), RREEF shall be entitled to receive back the Deposit and all interest
thereon, and commence an action against CarrAmerica for breach of this Agreement
and a claim for damages and expenses (including, but not limited to, any
out-of-pocket title, escrow, legal and inspection fees, costs and expenses
incurred by RREEF in connection with the performance of its due diligence review
of the Property and the negotiation and performance of this Agreement,
including, without limitation, environmental and engineering consultants' fees
and expenses); provided, however, the maximum aggregate amount which