was timely provided. They note that the Board's approval was given on the Adjourned Closing
Date and communicated to the parties on that day, and they assert that the option to cancel the
Agreement under Paragraph 6.3, by reason of the Board's failure to provide the requisite approval
of the transaction, could not be exercised until the day after the Adjourned Closing Date.
The Sellers also argue that the Colacinos violated their obligations of good faith
under the Agreement and that at sometime after entering into the Agreement, the Colacinos
began "scheming to create a colorable excuse to cancel the [Agreement] at an opportune
moment" and renegotiate the contract on more favorable terms to them in the declining real estate
market. The Sellers argue that the evidence shows that the Colacinos were not cooperative during
the Board approval process and that their actions obstructed and delayed this process, as such
they argue that the Colacinos were not entitled to exercise the cancellation option under
Paragraph 6.3 and be entitled to the return of their security deposit. The Sellers maintain that the
Notice of Cancellation effectively terminated the Agreement under circumstances in which the
Sellers were entitled to the Security Deposit. The Sellers further assert that the relevant facts and
law do not support the Colacinos' contention that the liquidated damages clause constitutes an
illegal penalty.
The Sellers also cross move to have Bergman disqualified from further
representation on the grounds that he is likely to be called as a witness on significant issues of
fact regarding the alleged failure of the Plaintiffs' to act in good faith.
In reply, the Colacinos argue that the requirement imposed by the Board upon its