Reso 2006-911 - Laserfiche WebLink

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Objection not cured by Seller as and when provided therein; (iii) termination of this Agreement pursuant to the provisions of Section 7.6 hereof due to an incorrect representation and warranty of Seller not cured by Seller as and when provided therein; (iv) termination of this Agreement pursuant to the provisions of Section 9.1 hereof due to an unsatisfied Buyer's Condition Precedent not satisfied by Seller as and when provided therein; (v) termination of this Agreement pursuant to the provisions of Section 17 hereof due to a taking of the Property as and when provided therein. The provisions of this Section 2.2 shall survive any termination of this Agreement. 2.3 Exercising the Option. In order to exercise the Option, Buyer must deliver on or prior to 5:00 p.m., Eastern Time on the Option Expiration Date (a) a notice to Seller given in accordance with the "Notice" section of this Agreement stating that Buyer has elected to exercise the Option and close in accordance with this Option Agreement (the "Option Notice") and (Time is of the essence for Buyer to give the Option Notice and any attempt to exercise the Option after the Option Expiration Date shall be of no force or effect). If Buyer does not exercise the Option on or prior to the Option Expiration Date, then Seller shall be entitled to receive and retain the full amount of the Option Fee and the Option and this Agreement shall terminate and the parties hereto shall be relieved of all further obligations and liability other than those that are expressly stated to survive termination of this Agreement. 3. Purchase Price; Deposit and Escrow. 3. I Purchase Price. The cash portion of the Purchase Price is Nineteen Million Six Hundred Thousand ($19,600,000.00) Dollars, payable by Buyer to Seller as follows: (a) the Option Fee in the amount of $200,000, payable as provided in Section 2.2 above, simultaneously with the delivery to Seller of this Agreement executed by Buyer; (b) the balance of the Purchase Price, equal to Nineteen Million four Hundred Thousand and 00/1 00 Dollars ($19,400,000.00), payable in Acceptable Funds to Seller at the Closing, subject to adjustments and credits as hereinafter set fOl1h. As used in this Agreement, the term "Acceptable Funds" shall mean a wire transfer of immediately available funds. (c) Buyer and Seller hereby acknowledge that the Purchase Price is less than the fair market value of the property which is to be determined by an appraisal to be obtained by Seller.. Buyer and Seller fm1her acknowledge that Seller intends to take a charitable tax deduction for the excess as determined by such appraisal on its federal income tax return for the year of the sale. 3.2 Option Fee. Liquidated Damages. Buyer and Seller agree that the damages which Seller would incur should Buyer default in its obligations under this Agreement are not readily ascertainable by the pm1ies on the date of this Agreement; and that the parties desire to liquidate by agreement the amount of Seller's recovery from Buyer in such event. Both parties understand that the agreed damages may be more or less than the actual damages which Seller may incur on account of Buyer's default. After consideration of all of the foregoing, Buyer and Seller hereby agree that in the event of Buyer's default under this Agreement (provided that Seller is not then in default), Seller shall be entitled to retain the Option Fee, together with all Crescent Heights XLIV, Inc. #2 3 S\\3