BE ENTITLED TO BRING AN ACTION TO COLLECT SUCH ADDITIONAL DEPOSIT FROM
BUYER TO WHICH SUCH SELLER IS ENTITLED.
SECTION 14.2.
SELLER PRE-CLOSING DEFAULTS.
(A)
IN THE EVENT THAT ANY SELLER HAS DEFAULTED IN ANY MATERIAL RESPECT UNDER
THIS AGREEMENT WITH RESPECT TO ITS OBLIGATIONS HEREUNDER (A "DEFAULTING
SELLER"), AND PROVIDED THAT BUYER WAS NOT IN BREACH IN ANY MATERIAL RESPECT OF
THIS AGREEMENT, THEN, SUBJECT TO THE PROVISIONS SET FORTH IN SECTION 14.3, BUYER
SHALL BE ENTITLED, AS ITS SOLE AND EXCLUSIVE REMEDY, AND BUYER HEREBY WAIVES ITS
RIGHT TO PURSUE ANY OTHER REMEDY AT LAW OR IN EQUITY, TO EITHER:
(I) TREAT THIS
AGREEMENT AS BEING IN FULL FORCE AND EFFECT AND PURSUE ONLY THE REMEDY OF
SPECIFIC PERFORMANCE OF THE DEFAULTING SELLERS' OBLIGATIONS TO DELIVER THE
DOCUMENTS DESCRIBED IN SECTION 13.1(A) HEREOF; OR (II) TERMINATE THIS AGREEMENT
EITHER (1) SOLELY WITH RESPECT TO THE DEFAULTING SELLER AND THE INDIVIDUAL
PROPERTY TO WHICH SUCH DEFAULT RELATES OR (2) WITH THE ENTIRE SPECIFIC PORTFOLIO
IN WHICH THE PROPERTY IS LOCATED, AND RECEIVE A RETURN OF A PRO RATA PORTION OF
THE DEPOSIT AS SHOWN ON SCHEDULE 2.1(A), TOGETHER WITH ANY INTEREST EARNED
THEREON (AND THE PARTIES SHALL JOINTLY INSTRUCT ESCROW HOLDER TO PROMPTLY RETURN
TO BUYER SUCH PRO RATA PORTION OF THE DEPOSIT SHOWN ON SCHEDULE 2.1(A), TOGETHER
WITH ANY INTEREST EARNED THEREON). IN THE EVENT THAT EITHER (I) THE SELLER HAS
DEFAULTED IN ANY MATERIAL RESPECT UNDER THE COMPANY AGREEMENT, AND PROVIDED THAT
BUYER WAS NOT IN BREACH IN ANY MATERIAL RESPECT OF THE COMPANY AGREEMENT, OR
(II) IF SELLER SHALL HAVE DEFAULTED IN ANY MATERIAL RESPECT UNDER THE 4807
AGREEMENT AND HAS NOT TERMINATED
42
THE OPTION AND REMOVED THE SAME OF RECORD, AND BUYER IS NOT IN BREACH IN ANY
MATERIAL RESPECT OF THE 4807 AGREEMENT, BUYER MAY EXERCISE ITS REMEDY SET FORTH
IN SECTION 14.2(A)(II)(2) ABOVE. AS A CONDITION PRECEDENT TO BUYER'S EXERCISING
ANY RIGHT IT MAY HAVE TO BRING AN ACTION FOR SPECIFIC PERFORMANCE HEREUNDER,
BUYER MUST COMMENCE SUCH ACTION FOR SPECIFIC PERFORMANCE WITHIN THIRTY (30) DAYS
AFTER THE DATE SCHEDULED FOR THE APPLICABLE CLOSING. BUYER AGREES THAT ITS
FAILURE TO TIMELY COMMENCE SUCH AN ACTION FOR SPECIFIC PERFORMANCE WITHIN SUCH
THIRTY (30) DAY PERIOD SHALL BE DEEMED A WAIVER BY IT OF ITS RIGHT TO COMMENCE
AN ACTION FOR SPECIFIC PERFORMANCE AS WELL AS A WAIVER BY IT OF ANY RIGHT IT MAY
HAVE TO FILE OR RECORD A NOTICE OF LIS PENDENS OR NOTICE OF PENDENCY OF ACTION
OR SIMILAR NOTICE AGAINST ANY PORTION OF THE PROPERTY. IN NO CASE SHALL BUYER
SEEK PUNITIVE DAMAGES OR CONSEQUENTIAL DAMAGES. IT IS UNDERSTOOD THAT A DEFAULT
WITH RESPECT TO ONE SELLER OR ITS INDIVIDUAL PROPERTY SHALL NOT EXTEND THE
CLOSING DATE FOR ANY UNRELATED PORTFOLIO OR EXCUSE BUYER'S PERFORMANCE HEREUNDER
WITH RESPECT TO THE SELLERS AND PROPERTIES OF ANY UNRELATED PORTFOLIOS.
(B)
IF PRIOR TO THE CLOSING DATE BUYER HAS OR OBTAINS KNOWLEDGE THAT A SELLER
HAS DEFAULTED ON ITS OBLIGATIONS HEREUNDER IN