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.