Buyer material concessions regarding this transaction in
exchange for Buyer agreeing to the provisions of this Section 12.
Seller and
Buyer have each initialed this Section 12 to further indicate their awareness
and acceptance of each and every provision hereof.
The provisions of this
Section 12 shall survive the Closing and shall not be deemed merged into any
instrument or conveyance delivered at the Closing.
Buyer's Initials:
Seller's Initials:
13.
CONTRACTS.
ALL SERVICE CONTRACTS, CONSTRUCTION CONTRACTS AND
MANAGEMENT CONTRACTS FOR THE PROPERTY ENTERED INTO BY SELLER WITH RESPECT TO THE
PROPERTY (THE "CONTRACTS") ARE LISTED ON EXHIBIT J TO THIS AGREEMENT.
SELLER
SHALL DELIVER COPIES OF ALL SUCH CONTRACTS TO BUYER WITHIN FIVE (5) DAYS AFTER
THE EFFECTIVE DATE.
BUYER SHALL NOTIFY SELLER PRIOR TO THE EXPIRATION OF THE
DUE DILIGENCE PERIOD WHICH CONTRACTS, BUYER DESIRES TO ASSUME AT CLOSING (THE
"ASSUMED CONTRACTS").
SELLER SHALL ASSIGN TO BUYER ALL OF SELLER'S RIGHT, TITLE
AND INTEREST UNDER THE ASSUMED CONTRACTS AT CLOSE OF ESCROW AND BUYER SHALL
ASSUME SAME.
SELLER SHALL SEND TERMINATION NOTICES, AT ITS SOLE COST AND
EXPENSE, FOR ALL OTHER CONTRACTS THAT ARE NOT ASSUMED CONTRACTS ON THE CLOSING
DATE.
22
14.
REMEDIES AGAINST SELLER.
IF CLOSE OF ESCROW AND THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT DO NOT OCCUR BY REASON OF ANY
DEFAULT OR BREACH BY SELLER IN ITS OBLIGATION TO TRANSFER THE PROPERTY TO BUYER,
BUYER SHALL BE ENTITLED AS ITS SOLE AND EXCLUSIVE REMEDY TO EITHER (I) THE
RETURN OF THE DEPOSIT AND ANY INTEREST ACTUALLY ACCRUED THEREON PLUS
REIMBURSEMENT BY SELLER FOR THE ACTUAL OUT-OF-POCKET UNRELATED THIRD PARTY COSTS
INCURRED BY BUYER IN CONNECTION WITH THIS AGREEMENT NOT TO EXCEED SEVENTY-FIVE
THOUSAND DOLLARS ($75,000) IN THE AGGREGATE UNDER THIS AGREEMENT AND THE LAND
AGREEMENT; OR (II) THE REMEDY OF SPECIFIC PERFORMANCE; AS BUYER MAY ELECT, AS
BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR SUCH BREACH OR DEFAULT, AND BUYER SHALL
NOT BE ENTITLED OR HAVE ANY RIGHT TO RECEIVE ANY OTHER DAMAGES OR OTHER RELIEF,
LEGAL OR EQUITABLE; PROVIDED, HOWEVER, IF SELLER'S DEFAULT IS SUCH THAT SPECIFIC
PERFORMANCE CANNOT BE GRANTED AS A JUDICIAL REMEDY AS A RESULT OF THE SALE OF
THE PROPERTY BY SELLER TO A BONA FIDE PURCHASER, THEN BUYER MAY SEEK ANY AND ALL
OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY.
IN THE EVENT BUYER CLOSES UNDER
THIS AGREEMENT AND THEN SELLER FAILS TO FULLY PERFORM ANY OF ITS OTHER
OBLIGATIONS UNDER THIS AGREEMENT THAT SURVIVE OR ARE PERFORMABLE AFTER CLOSING
BUYER MAY SEEK ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY.
Seller's Initials
Buyer's Initials
15.
GENERAL PROVISIONS.
15.1
ASSIGNMENT.
(A)
THIS AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE
BENEFIT OF BUYER AND SELLER AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS.
(B)
BUYER MAY ONLY ASSIGN THIS AGREEMENT AND ANY INTEREST OR RIGHT
UNDER THIS AGREEMENT OR UNDER THE ESCROW AFTER OBTAINING SELLER'S PRIOR WRITTEN
CONSENT, IN SELLER'S SOLE AND ABSOLUTE DISCRETION; PROVIDED THAT SELLER HEREBY
CONSENTS WITH RESPECT TO ANY ASSIGNMENT