Common use of Default by Transferors Clause in Contracts

Default by Transferors. In the event that the applicable Closing of any Contribution Transaction contemplated by this Agreement does not occur by reason of any default by PMB LLC or any Transferor of its obligations under this Agreement, then Transferee shall be entitled, as its sole and exclusive remedy, to either (a) terminate this Agreement by written notice to PMB LLC, the applicable Transferor and Escrow Agent, with respect to (i) all of the Properties, if such election is exercised prior to the Closing Date of the first Contribution Transaction, (ii) all Existing Properties for which a Closing has not occurred and all Development Properties, if such election is exercised after the Closing of the first Contribution Transaction but prior to the Closing of the last Contribution Transaction of an Existing Property, or (iii) the applicable Development Property, if such election is exercised with respect to a Development Property, in which event Escrow Agent shall return all documents, instruments and funds delivered into Escrow with respect to any such terminated Contribution Transaction to the party that delivered the same into Escrow, and no party (or its affiliates) shall have any further rights or obligations hereunder with respect to consummating such terminated Contribution Transactions or, if applicable, any other future transaction involving any of the parties hereto, other than pursuant to any provision hereof which expressly survives the termination of this Agreement, in which case PMB LLC and/or the applicable Transferor shall be obligated to pay any cancellation charges to Escrow Agent and Title Company and shall reimburse Transferee for all of Transferee’s actual out-of-pocket third-party costs and expenses incurred as part of Transferee’s due diligence efforts hereunder and/or Assumption Costs, subject to a cap of $250,000 per Property (understanding that no single Transferor shall be responsible for more than $250,000), or (b) treat this Agreement as being in full force and effect and pursue an action for specific performance of this Agreement, provided that Transferee must commence any action for specific performance within sixty (60) days after the scheduled Closing Date. Notwithstanding anything contained herein to the contrary, Transferee acknowledges and agrees that no breach under this Agreement shall result in a default by PMB LLC or any Transferor under this Agreement unless written notice of such breach has been given to PMB LLC and the applicable Transferor, and PMB LLC or such Transferor, as applicable, fails to cure such breach within five (5) Business Days after its receipt of such notice. Transferee expressly waives any right to recover any and all consequential damages, punitive damages and exemplary damages, and any other damages which would be predicated in whole or in part upon loss of bargain, opportunity lost, or any loss of anticipated benefits incurred by Transferee.

Default by Transferors. In If (a) the event conditions precedent set forth in Section 5(b) shall have been satisfied or waived (provided that for purposes of this Section Buyer shall not be required to tender formally the applicable Closing Consideration but only demonstrate the commitment of any Contribution Transaction contemplated by this Agreement does not occur by reason of any default by PMB LLC or any Transferor of immediately available funds to pay such Consideration) and (b) Transferors shall refuse to perform its closing obligations under this AgreementAgreement (e.g., by refusing to convey a Property to Buyer at Closing), then Transferee shall be entitled, as its Buyer's sole and exclusive remedy, to remedy under this Agreement shall be either (ai) terminate this Agreement by written notice to PMB LLC, receive back the applicable Transferor and Escrow Agent, Xxxxxxx Money in the event Transferors refused to perform its closing obligations with respect to (i) all of the Properties, if such election is exercised prior to the Closing Date of the first Contribution Transaction, (ii) Properties plus all Existing Properties for which a Closing has not occurred and all Development Properties, if such election is exercised after the Closing of the first Contribution Transaction but prior to the Closing of the last Contribution Transaction of an Existing Property, or (iii) the applicable Development Property, if such election is exercised with respect to a Development Propertyaccrued interest thereon, in which event case, after the payment by Transferors of any Escrow Agent shall return all documentscancellation charges, instruments and funds delivered into Escrow with respect to any such terminated Contribution Transaction to the neither party that delivered the same into Escrow, and no party (or its affiliates) shall have any further rights or obligations hereunder with respect hereunder, or (ii) to consummating such terminated Contribution Transactions or, if applicable, any other future proceed to close the transaction involving any of without purchasing the parties hereto, other than pursuant to any provision hereof which expressly survives the termination of this Agreementaffected Property, in which case PMB LLC and/or event the applicable Transferor shall Consideration will be obligated to pay any cancellation charges to Escrow Agent and Title Company and shall reimburse Transferee for all reduced by the Allocated Price of Transferee’s actual out-of-pocket third-party costs and expenses incurred as part of Transferee’s due diligence efforts hereunder and/or Assumption Costssuch affected Property, subject to a cap of $250,000 per Property (understanding that no single Transferor shall be responsible for more than $250,000), or (b) treat this Agreement as being in full force and effect and pursue an action for specific performance of this Agreementon a Property by Property basis as to those Properties as to which Transferors refuse to perform its closing obligations; provided, provided however, that Transferee must commence any such action for specific performance shall be filed and served by Buyer within sixty thirty (6030) days after of the scheduled Closing Date. Notwithstanding date of the alleged Transferors' default, it being the intent of the parties hereto that any failure of Buyer to meet the time deadline set for filing shall be deemed to be Buyer's election to waive and relinquish any rights to enforce specific performance of this Agreement; and provided further, that notwithstanding anything contained herein to the contrarycontrary contained herein, Transferee acknowledges Buyer's right to pursue an action for specific performance is expressly conditioned on Buyer not being in default or having defaulted in any material respect under this Agreement. Nothing contained in this Section 13(b) is intended to limit Buyer's rights under Sections 15(g), 15(m) and agrees that no breach 15(p) of this Agreement. Transferors refusal to perform its closing obligations under this Agreement shall result in constitute a default breach by PMB LLC or any Transferor Transferors under Section 6(c) of this Agreement unless written notice of such breach has been given and shall entitle Buyer to PMB LLC and the applicable Transferor, and PMB LLC or such Transferor, as applicable, fails to cure such breach within five (5) Business Days after its receipt of such notice. Transferee expressly waives any right to recover any and all consequential damages, punitive damages and exemplary damages, and any other damages which would be predicated in whole or in part upon loss of bargain, opportunity lost, or any loss of anticipated benefits incurred by Transfereeremedies available under the Guaranty Agreement.

Default by Transferors. In the event that the applicable Closing of any Contribution Transaction and the transactions contemplated by this Agreement does hereby do not occur as provided herein by reason of any the default by PMB LLC or any Transferor of its obligations under this AgreementTransferors, then Transferee shall be entitledmay elect, as its the sole and exclusive remedyremedy of Transferee, to either (a) terminate this Agreement by written notice to PMB LLC, the applicable Transferor and Escrow Agent, with respect to (i) all of the Properties, if such election is exercised prior to the Closing Date of the first Contribution Transaction, (ii) all Existing Properties for which a Closing has not occurred and all Development Properties, if such election is exercised after the Closing of the first Contribution Transaction but prior to the Closing of the last Contribution Transaction of an Existing Property, or (iii) the applicable Development Property, if such election is exercised with respect to a Development Property, in which event Escrow Agent shall return all documents, instruments and funds delivered into Escrow with respect to any such terminated Contribution Transaction to the party that delivered the same into Escrow, and no party (or its affiliates) shall have any further rights or obligations hereunder with respect to consummating such terminated Contribution Transactions or, if applicable, any other future transaction involving any of the parties hereto, other than pursuant to any provision hereof which expressly survives the termination of terminate this Agreement, in which case PMB LLC and/or receive the applicable Transferor shall be obligated to pay any cancellation charges to Xxxxxxx Money from the Escrow Agent Agent, and Title Company and shall reimburse Transferee for recover from Transferors all of Transferee’s actual out-of-pocket third-party costs and expenses incurred as part to the date of such termination (including, without limitation, Transferee’s due diligence efforts hereunder and/or Assumption Costsattorneys’ fees and expenses) pursuant to this Agreement and the transactions contemplated hereby, subject such out-of-pocket expenses not to exceed a cap total of $250,000 per Property (understanding that no single Transferor shall be responsible for more than $250,000)500,000.00, or (bii) treat enforce specific performance of Transferors’ obligation to convey the Membership Interests, without adjustment to, or credit against, the Acquisition Consideration. Transferee shall be deemed to have elected to terminate this Agreement (as being provided in full force and effect and pursue an subsection (i) above) if Transferee fails to deliver to Transferors written notice of its intent to file a cause of action for specific performance against Transferors on or before thirty (30) days after written notice of this Agreementtermination from Transferors or thirty (30) days after the originally scheduled Closing Date, provided that Transferee must commence any whichever shall occur first, or having given Transferors notice, fails to file a lawsuit asserting such cause of action for specific performance within sixty (60) days after the originally scheduled Closing Date. In no event shall Transferors be liable to Transferee for any punitive, speculative, or consequential damages. Notwithstanding anything the foregoing, nothing contained herein shall limit Transferee’s remedies at law or in equity as to the contrary, Transferee acknowledges and agrees that no breach under this Agreement shall result in a default by PMB LLC or any Transferor under this Agreement unless written notice of such breach has been given to PMB LLC and the applicable Transferor, and PMB LLC or such Transferor, as applicable, fails to cure such breach within five (5) Business Days after its receipt of such notice. Transferee expressly waives any right to recover any and all consequential damages, punitive damages and exemplary damages, and any other damages which would be predicated in whole or in part upon loss of bargain, opportunity lost, or any loss of anticipated benefits incurred by TransfereeObligations Surviving Termination.

Default by Transferors. In If (a) the event conditions precedent set forth in Section 5(b) shall have been satisfied or waived (provided that for purposes of this Section Buyer shall not be required to tender formally the applicable Closing Consideration but only demonstrate the commitment of any Contribution Transaction contemplated by this Agreement does not occur by reason of any default by PMB LLC or any Transferor of immediately available funds to pay such Consideration) and (b) Transferors shall refuse to perform its closing obligations under this AgreementAgreement (e.g., by refusing to convey a Property to Buyer at Closing), then Transferee shall be entitled, as its Buyer's sole and exclusive remedy, to remedy under this Agreement shall be either (ai) terminate this Agreement by written notice to PMB LLC, receive back the applicable Transferor and Escrow Agent, Earnxxx Xxxey in the event Transferors refused to perform its closing obligations with respect to (i) all of the Properties, if such election is exercised prior to the Closing Date of the first Contribution Transaction, (ii) Properties plus all Existing Properties for which a Closing has not occurred and all Development Properties, if such election is exercised after the Closing of the first Contribution Transaction but prior to the Closing of the last Contribution Transaction of an Existing Property, or (iii) the applicable Development Property, if such election is exercised with respect to a Development Propertyaccrued interest thereon, in which event case, after the payment by Transferors of any Escrow Agent shall return all documentscancellation charges, instruments and funds delivered into Escrow with respect to any such terminated Contribution Transaction to the neither party that delivered the same into Escrow, and no party (or its affiliates) shall have any further rights or obligations hereunder with respect hereunder, or (ii) to consummating such terminated Contribution Transactions or, if applicable, any other future proceed to close the transaction involving any of without purchasing the parties hereto, other than pursuant to any provision hereof which expressly survives the termination of this Agreementaffected Property, in which case PMB LLC and/or event the applicable Transferor shall Consideration will be obligated to pay any cancellation charges to Escrow Agent and Title Company and shall reimburse Transferee for all reduced by the Allocated Price of Transferee’s actual out-of-pocket third-party costs and expenses incurred as part of Transferee’s due diligence efforts hereunder and/or Assumption Costssuch affected Property, subject to a cap of $250,000 per Property (understanding that no single Transferor shall be responsible for more than $250,000), or (b) treat this Agreement as being in full force and effect and pursue an action for specific performance of this Agreementon a Property by Property basis as to those properties as to which Transferors refuse to perform its closing obligations; provided, provided however, that Transferee must commence any such action for specific performance shall be filed and served by Buyer within sixty thirty (6030) days after of the scheduled Closing Date. Notwithstanding date of the alleged Transferors' default, it being the intent of the parties hereto that any failure of Buyer to meet the time deadline set for filing shall be deemed to be Buyer's election to waive and relinquish any rights to enforce specific performance of this Agreement; and provided further, that notwithstanding anything contained herein to the contrarycontrary contained herein, Transferee acknowledges Buyer's right to pursue an action for specific performance is expressly conditioned on Buyer not being in default or having defaulted in any material respect under this Agreement. Nothing contained in this Section 13(b) is intended to limit Buyer's rights under Sections 15(g), 15(m) and agrees that no breach 15(p) of this Agreement. Transferors refusal to perform its closing obligations under this Agreement shall result in constitute a default breach by PMB LLC or any Transferor Transferors under Section 6(c) of this Agreement unless written notice of such breach has been given and shall entitle Buyer to PMB LLC and the applicable Transferor, and PMB LLC or such Transferor, as applicable, fails to cure such breach within five (5) Business Days after its receipt of such notice. Transferee expressly waives any right to recover any and all consequential damages, punitive damages and exemplary damages, and any other damages which would be predicated in whole or in part upon loss of bargain, opportunity lost, or any loss of anticipated benefits incurred by Transfereeremedies available under the Guaranty Agreement.