THIS
CONTRACT AND HAS FILED AN ACTION SEEKING SUCH REMEDY.
NOTWITHSTANDING THE
FOREGOING, THE PROVISIONS OF THIS SECTION 11.1 SHALL NOT LIMIT, AND BUYER SHALL
HAVE THE RIGHT TO BRING A SEPARATE ACTION WITH RESPECT TO THE PROVISIONS OF
SECTION 10 AND SECTION 12.13.
13
11.2
BUYER DEFAULT.
IF ALL OF THE CONDITIONS TO
CLOSING CONTAINED IN SECTION 7.2 HAVE BEEN SATISFIED AND BUYER DEFAULTS IN ITS
OBLIGATION TO CLOSE HEREUNDER, AND SELLER IS NOT OTHERWISE IN DEFAULT HEREUNDER,
SELLER SHALL BE ENTITLED TO RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES AS ITS
SOLE REMEDY HEREUNDER, IN LIEU OF ALL OTHER REMEDIES AVAILABLE TO SELLER AT LAW
OR IN EQUITY FOR SUCH DEFAULT.
SELLER AND BUYER AGREE THAT THE DAMAGES
RESULTING TO SELLER AS A RESULT OF SUCH DEFAULT BY BUYER AS OF THE DATE OF THIS
AGREEMENT ARE DIFFICULT OR IMPOSSIBLE TO ASCERTAIN AND THE LIQUIDATED DAMAGES
SET FORTH IN THE PRECEDING SENTENCE CONSTITUTE BUYER'S AND SELLER'S REASONABLE
ESTIMATE OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS
SECTION 11.2 SHALL NOT LIQUIDATE, AND SELLER SHALL HAVE THE RIGHT TO BRING A
SEPARATE ACTION WITH RESPECT TO, THE PROVISIONS OF SECTION 5.4, ARTICLE 10 AND
SECTION 12.13.
BY INITIALING BELOW, BUYER AND SELLER AGREE TO THE PROVISIONS OF
THIS SECTION 11.2.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY CONSEQUENTIAL OR PUNITIVE DAMAGES BASED UPON ANY BREACH OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, BREACHES OF REPRESENTATIONS OR WARRANTIES.
/MBC/
/BK/
Buyer's Initials
Seller's Initials
ARTICLE 12
MISCELLANEOUS
12.1
ASSIGNMENT.
BUYER MAY NOT ASSIGN ANY OF BUYER'S
RIGHTS OR DUTIES HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER, WHICH
CONSENT MAY BE WITHHELD BY SELLER IN ITS SOLE AND ABSOLUTE DISCRETION.
NOTWITHSTANDING THE PREVIOUS SENTENCE, BUYER SHALL HAVE THE RIGHT, UPON WRITTEN
NOTICE TO SELLER DELIVERED NO LATER THAN TEN (10) DAYS PRIOR TO THE CLOSING WITH
REASONABLE WRITTEN SUBSTANTIATION, TO ASSIGN BUYER'S RIGHTS HEREUNDER, WITHOUT
THE NEED FOR OBTAINING SELLER'S CONSENT, TO AN ENTITY THAT CONTROLS, IS
CONTROLLED BY, OR SHARES COMMON CONTROL WITH BUYER, FOR PURPOSES OF TAKING TITLE
TO THE PROPERTY AT CLOSING; PROVIDED, HOWEVER, IN THE EVENT OF AN ASSIGNMENT
PURSUANT TO THE FOREGOING, THE NAMED BUYER HEREIN SHALL REMAIN JOINTLY AND
SEVERALLY LIABLE WITH ANY ASSIGNEE(S) FOR ALL OBLIGATIONS OF BUYER UNDER THIS
AGREEMENT.
THE COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT SHALL
EXTEND TO AND BE OBLIGATORY UPON THE PERMITTED SUCCESSORS AND ASSIGNS OF THE
RESPECTIVE PARTIES TO THIS AGREEMENT.
12.2
NOTICES.
ANY NOTICE REQUIRED OR PERMITTED TO BE
DELIVERED UNDER THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN (I)
WHEN DELIVERED OR REFUSED BY HAND DURING REGULAR BUSINESS HOURS, (II) THREE (3)
DAYS AFTER BEING SENT BY UNITED STATES POSTAL SERVICE, REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED AND FIRST CLASS MAIL, POSTAGE
PREPAID, (III) THE NEXT BUSINESS DAY IF SENT BY A REPUTABLE NATIONAL OVERNIGHT
EXPRESS MAIL SERVICE THAT PROVIDES TRACING AND PROOF OF RECEIPT OR REFUSAL OF
ITEMS MAILED, OR