AGREE THAT,
IN SUCH EVENT, TRANSFEROR, AS TRANSFEROR'S SOLE AND EXCLUSIVE REMEDY, IS
ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT, IN WHICH CASE (A)
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF TRANSFEREE, CBL OP AND
TRANSFEROR HEREUNDER SHALL BE OF NO FURTHER FORCE OR EFFECT AND NONE OF THE
PARTIES SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER OTHER THAN
PURSUANT TO ANY PROVISION HEREOF WHICH EXPRESSLY SURVIVES THE TERMINATION OF
THIS AGREEMENT, (B) ESCROW AGENT SHALL DELIVER THE DEPOSIT TO TRANSFEROR
PURSUANT TO
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TRANSFEROR'S INSTRUCTIONS, AND THE SAME SHALL BE THE FULL, AGREED AND LIQUIDATED
DAMAGES (OTHER THAN ANY AMOUNTS PAYABLE PURSUANT TO THE INDEMNITY PROVISIONS OF
SECTION 2.1), AND (C) ALL TITLE AND ESCROW CANCELLATION CHARGES, IF ANY, SHALL
BE CHARGED TO TRANSFEREE. THE PARTIES HEREBY AGREE THAT THE AMOUNT OF THE
DEPOSIT IS A FAIR AND REASONABLE ESTIMATE OF THE TOTAL DETRIMENT THAT TRANSFEROR
WOULD SUFFER IN THE EVENT OF TRANSFEREE'S AND/OR CBL OP's DEFAULT AND FAILURE TO
DULY COMPLETE THE ACQUISITION HEREUNDER. TRANSFEROR IRREVOCABLY WAIVES THE RIGHT
TO SEEK OR OBTAIN ANY OTHER LEGAL OR EQUITABLE REMEDIES, INCLUDING THE REMEDIES
OF DAMAGES AND SPECIFIC PERFORMANCE (PROVIDED, THAT TRANSFEROR IS ABLE TO
COLLECT THE FULL AMOUNT OF THE DEPOSIT FROM ANY LETTER OF CREDIT PROVIDER, TO
THE EXTENT APPLICABLE. OTHERWISE TRANSFEROR SHALL HAVE THE RIGHT TO TAKE SUCH
ACTION AS IS REQUIRED TO COLLECT SUCH AMOUNT FROM SUCH LETTER OF CREDIT PROVIDER
OR TRANSFEREE).
TRANSFEROR, CBL OP AND TRANSFEREE ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND
THE PROVISIONS OF THIS SECTION 11.2, AND BY THEIR INITIALS IMMEDIATELY BELOW
AGREE TO BE BOUND BY ITS TERMS.
Transferor's Initials
CBL OP's Initials
Transferee's Initials
ARTICLE XII
Escrow
12.1
Escrow.
(a)
Escrow Agent is hereby appointed and designated to act as Escrow
Agent hereunder and is instructed to hold and deliver, pursuant to the terms of
this Agreement, the documents and funds to be deposited into escrow as herein
provided. Escrow Agent shall hold the Deposit in escrow (and, to the extent
delivered in the form of cash, in insured money market accounts, certificates of
deposit, United States Treasury Bills or such other interest-bearing accounts as
Transferee and Transferor, both acting reasonably, may jointly instruct from
time to time) until the earlier to occur of (i) the Closing Date, at which time
the Deposit shall be returned to Transferee in accordance with the terms of
Section 1.3, or (ii) the date on which Escrow Agent is authorized to disburse
the Deposit as set forth in Section 12.1(b). The tax identification numbers of
the parties shall be furnished to Escrow Agent upon request.
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(b)
If Closing does not occur, and either Transferor or Transferee
makes a written demand upon Escrow Agent for delivery of the Deposit, Escrow
Agent shall give written notice to the other party of such demand. If Escrow
Agent does not receive a written objection from such other party to the proposed
delivery on or before the 10th day after