Common use of Default by Contributor Clause in Contracts

Default by Contributor. In the event the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Contributor, and Contributor’s failure to close was not caused by BKP’s default under this Agreement, BKP may, as BKP’s sole and exclusive remedy, elect either of the following: (a) by notice to Contributor at any time but in no event later than thirty (30) days following the Scheduled Closing Date to terminate this Agreement, in which event BKP will receive from the Escrow Agent the Xxxxxxx Money Deposit, and Contributor shall reimburse BKP for its legal and due diligence costs and expenses incurred in connection with the Property and this Agreement, not to exceed $700,000, whereupon Contributor and BKP will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or (b) at any time but in no event later than sixty (60) days following the Scheduled Closing Date, to file suit to seek to enforce specific performance of Contributor’s obligation under this Agreement. Except for claims arising under Closing Surviving Obligations and as otherwise set forth herein, BKP expressly waives its rights to seek damages in the event of Contributor’s default hereunder. BKP shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money Deposit if BKP fails to file suit for specific performance against Contributor in a court having jurisdiction in the county and state in which the Property is located on or before sixty (60) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 or in any other provision of this Agreement (excluding Section 8.4) will limit BKP’s remedies at law, in equity or as herein provided in pursuing remedies of (i) a willful or intentional breach by Contributor of its obligations hereunder in the event the remedy of specific performance is not available to BKP by reason of such Contributor’s breach by conveying the Property to a third party in breach of the terms of this Agreement, or by Contributor executing a new mortgage encumbering the Property which is not released at or before the Closing, or by Contributor creating some other impediment that would preclude Contributor from being able to convey the Property in accordance with the terms of this Agreement, (ii) fraud by Contributor, or (iii) any breach by Contributor of any of the Termination Surviving Obligations or Closing Surviving Obligations.

Default by Contributor. In If any of Contributor’s representations and warranties contained herein shall not be true and correct on the Closing Date, or if Contributor fails to perform any of the covenants and agreements contained herein to be performed by Contributor (including Contributor’s obligation to close), Acquiror or Subsidiary, as applicable, may elect: (x) in the event the Closing and the transactions contemplated hereby do has not occur as herein provided by reason of any default of Contributoroccurred, and Contributor’s failure to close was not caused by BKP’s default under this Agreement, BKP may, as BKP’s sole and exclusive remedy, elect either of the following: (a) by notice to Contributor at any time but in no event later than thirty (30) days following the Scheduled Closing Date to terminate this Agreementclose, in which event BKP will receive Acquiror or Subsidiary may file an action for either or both of specific performance and damages to compel Contributor to cure all or any of such default(s), in whole or in part, whereupon Acquiror or Subsidiary, as applicable, shall be entitled to deduct from the Escrow Agent Contribution Consideration the Xxxxxxx Money Depositcost of such action and cure, and Contributor shall reimburse BKP for its legal and due diligence costs and all reasonable expenses incurred by Acquiror or Subsidiary, as applicable, in connection with therewith, including, but not limited to, attorneys’ fees of Acquiror’s or Subsidiary’s, as applicable, counsel; or (y) in the Property and this Agreementevent the Closing has occurred, not to exceed $700,000, whereupon Contributor and BKP will pursue whatever remedies it may have no further rights at law or obligations under this Agreement, except with respect in equity. Notwithstanding anything to the Termination Surviving Obligationscontrary herein and in addition to any other remedies of Acquiror or Subsidiary, as applicable, Acquiror or Subsidiary, as applicable shall be entitled to recover actual (bbut not consequential) at any time but in no event later than sixty (60) days following the Scheduled Closing Datedamages suffered by Acquiror or Subsidiary, to file suit to seek to enforce specific performance as applicable, by reason of Contributor’s obligation under this Agreementdefaults hereunder and/or any delay occasioned thereby. Except for claims arising under Closing Surviving Obligations and as otherwise The remedies of Acquiror set forth herein, BKP expressly waives its rights to seek damages in the event of Contributor’s default hereunder. BKP shall be deemed to have elected to terminate this Agreement and receive back the Xxxxxxx Money Deposit if BKP fails to file suit for specific performance against Contributor in a court having jurisdiction in the county and state in which the Property is located on or before sixty (60) days following the Scheduled Closing Date. Notwithstanding the foregoing, nothing contained in this Section 13.1 shall be in addition to remedies otherwise applicable or provided in this Agreement or otherwise available to Acquiror or Subsidiary, as applicable, at law or in any other provision of equity, including, without limitation, specific performance, it being understood that Acquiror or Subsidiary’s rights and remedies under this Agreement (excluding Section 8.4) will limit BKP’s remedies at law, in equity shall always be non-exclusive and cumulative and that the exercise of one remedy or as herein provided in pursuing remedies form of (i) a willful or intentional breach by Contributor of its obligations hereunder in the event the remedy of specific performance is not relief available to BKP by reason of such Contributor’s breach by conveying the Property to Acquiror or Subsidiary, as applicable, hereunder shall not be exclusive or constitute a third party in breach of the terms of this Agreement, or by Contributor executing a new mortgage encumbering the Property which is not released at or before the Closing, or by Contributor creating some other impediment that would preclude Contributor from being able to convey the Property in accordance with the terms of this Agreement, (ii) fraud by Contributor, or (iii) any breach by Contributor waiver of any of the Termination Surviving Obligations or Closing Surviving Obligationsother.

Default by Contributor. (a) In the event that Contributor fails to keep and perform each and every obligation, covenant and agreement herein by Contributor to be kept or performed after OP has made the Closing Pre- Contribution Loan to Contributor, then OP may pursue an action against Contributor and the transactions contemplated hereby do not occur as herein provided by reason of any default Property for specific performance and/or damages but agrees that it shall have no right to seek or obtain consequential or punitive damages resulting from a breach of Contributor's agreements to convey the Property. Notwithstanding the foregoing, and Contributor’s failure OP's right to close was not caused by BKP’s default under this Agreement, BKP may, as BKP’s sole and exclusive remedy, elect either file an action for specific performance against Contributor (i) shall be limited to the period of the following: (a) by notice to Contributor at any time but in no event later than thirty (30) days following notice by OP to Contributor setting forth the Scheduled Closing Date obligation, covenant or agreement which Contributor has failed to terminate this Agreement, keep or perform and (ii) shall require evidence of OP's ability to perform all of the obligations of OP then capable of being performed at the point in which event BKP will receive from the Escrow Agent the Xxxxxxx Money Deposit, and Contributor shall reimburse BKP for its legal and due diligence costs and expenses incurred in connection with the Property and this Agreement, not to exceed $700,000, whereupon Contributor and BKP will have no further rights time of Contributor's breach or obligations under this Agreement, except with respect to the Termination Surviving Obligations, or default. (b) at any time but in no event later than sixty EXCEPT IN THE CASE WHERE OP HAS MADE THE PRE- CONTRIBUTION LOAN TO CONTRIBUTOR AS PROVIDED IN SUBPARAGRAPH (60a) days following ABOVE, IF THE TRANSACTION HEREIN PROVIDED SHALL NOT BE CLOSED BY REASON OF THE CONTRIBUTOR'S DEFAULT UNDER THIS AGREEMENT AND OP SHALL NOT HAVE DEFAULTED UNDER THIS AGREEMENT, THEN THE DEPOSIT SHALL BE RETURNED TO OP. IN ADDITION, THE PARTIES HERETO, BEFORE ENTERING INTO THIS TRANSACTION, HAVE BEEN CONCERNED WITH THE FACT THAT SUBSTANTIAL DAMAGES WILL BE SUFFERED BY OP IF THE CONTRIBUTOR SHOULD WRONGFULLY FAIL TO CLOSE THE TRANSACTIONS HEREUNDER. THE CONTRIBUTOR HAS STATED THAT IT WILL NOT PERMIT ANY ACTION FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT UNTIL AFTER OP HAS MADE THE PRE-CONTRIBUTION LOAN. WITH THE FLUCTUATION IN VALUE OF REAL PROPERTY, THE CURRENT AND HIGHLY UNPREDICTABLE STATE OF THE ECONOMY, THE FLUCTUATING MONEY MARKET FOR REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS THAT DIRECTLY AFFECT THE VALUE AND MARKET ABILITY OF THE PROPERTY, IT IS REALIZED BY THE PARTIES THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY PRIOR TO SIGNING THIS AGREEMENT THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY OP IN THE EVENT OF THE CONTRIBUTOR'S WRONGFUL FAILURE TO CLOSE THE TRANSACTIONS HEREUNDER. IN ADDITION, OP DESIRES TO PROVIDE A FINANCIAL DISINCENTIVE FOR ANY SUCH FAILURE BY CONTRIBUTOR. THE PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES OP WOULD SUFFER IN THE EVENT OF CONTRIBUTOR'S WRONGFUL FAILURE TO CLOSE THE TRANSACTIONS HEREUNDER, HEREBY AGREE THAT THE REASONABLE ESTIMATE OF SAID DAMAGES IS AN AGGREGATE AMOUNT EQUAL TO TWO MILLION DOLLARS ($2,000,000); AND IN THE EVENT OF CONTRIBUTOR'S WRONGFUL FAILURE TO CLOSE THE TRANSACTIONS HEREUNDER PRIOR TO THE TIME OP HAS MADE THE PRE-CONTRIBUTION LOAN TO CONTRIBUTOR, OP SHALL BE ENTITLED TO SUCH AMOUNT AS FULL LIQUIDATED DAMAGES, AND THAT PAYMENT OR TENDER TO OP OF SUCH AMOUNT SHALL TERMINATE ALL OF OP'S RIGHTS AND REMEDIES AT LAW OR IN EQUITY AGAINST CONTRIBUTOR WITH RESPECT TO SUCH FAILURE TO PERFORM. AS USED HEREIN, CONTRIBUTOR'S WRONGFUL FAILURE TO CLOSE THE TRANSACTIONS HEREUNDER SHALL MEAN SUCH CONTRIBUTOR'S WILLFUL AND UNWARRANTED REFUSAL TO DELIVER THE GRANT DEED WITH OP HAVING COMPLIED WITH ITS OBLIGATIONS HEREUNDER (EXCEPT FOR ITS OBLIGATION TO FUND THE PRE-CONTRIBUTION LOAN, BALANCE OF THE ADJUSTED PAYMENT AMOUNT) AND BEING READY, WILLING AND ABLE TO CLOSE (AND SUCH TERM SHALL NOT APPLY TO ANY OTHER DEFAULT OR BREACH BY CONTRIBUTOR HEREUNDER). /s/ SAB /s/ VJC Contributor's Initials OP's Initials (c) Without limitation on the Scheduled Closing Date, to file suit to seek to enforce specific performance of Contributor’s obligation under this Agreement. Except for claims arising under Closing Surviving Obligations and as otherwise set forth other limitations or remedies contained herein, BKP expressly waives its rights to seek damages in the event of Contributor’s default hereunder. BKP shall be deemed to have elected to terminate any dispute between the parties respecting this Agreement and receive back or the Xxxxxxx Money Deposit if BKP fails transactions herein contemplated prior to file suit for specific performance against Contributor in a court having jurisdiction in the county and state in which time that OP has made the Property is located on or before sixty (60) days following the Scheduled Closing Date. Notwithstanding the foregoingPre- Contribution Loan to Contributor, nothing contained in this Section 13.1 or in any other provision of this Agreement (excluding Section 8.4) will limit BKP’s remedies at law, in equity or as herein provided in pursuing remedies of OP hereby waives (i) any right to record or file a willful lis pendens or intentional breach by Contributor other similar notice of its obligations hereunder in the event the remedy of suit, (ii) any right to seek specific performance is not available to BKP by reason of such Contributor’s breach by conveying the Property to a third party in breach of the terms of this Agreement, or by Contributor executing a new mortgage encumbering the Property which is not released at or before the Closing, or by Contributor creating some other impediment that would preclude Contributor from being able to convey the Property in accordance with the terms of this Agreement, (ii) fraud by Contributor, or and (iii) any breach by Contributor right to assert any claim affecting the right of any of possession or title to the Termination Surviving Obligations or Closing Surviving ObligationsProperty.