Common use of Investor Default Clause in Contracts

Investor Default. If Investor defaults in the observance or performance of its covenants and obligations hereunder, and such default continues for the greater of five (5) Business Days after the date of receipt of written notice from Existing Members demanding cure of such default, or the expiration of other applicable cure periods set forth in this Agreement, Existing Members shall be entitled, as its sole and exclusive remedy hereunder (except with respect to any right, obligation or liability which survives Closing or termination of this Agreement, including the indemnification obligation of Investor set forth in Paragraph 4.3), to Terminate this Agreement by written notice to Investor of such termination and to receive payment of the Deposit as full liquidated damages for such default of Investor the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such a default, that it is impossible more precisely to estimate the damages to be suffered by Existing Members upon Investor’s default, that such forfeiture of the Deposit is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Existing Members’ actual damages which would be suffered by Existing Members in the event of default by Investor. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement, including the indemnification obligation of Investor set forth in Paragraph 4.3, Existing Members’ right to Terminate this Agreement and receive payment of the Deposit as full liquidated damages, are Existing Members’ sole and exclusive remedies in the event of default hereunder by Investor, and Existing Members hereby waive, relinquish and release any and all other rights and remedies (except any that survive termination pursuant to the express provisions of this Agreement), including, but not limited to: (1) any right to xxx Investor or its affiliates for damages or to prove that Existing Members’ actual damages exceed the Deposit which is hereby provided Existing Members as full liquidated damages, (2) any right to xxx Investor for specific performance, or (3) any other right or remedy which Existing Members may otherwise have against Investor or its affiliates, either at law, or equity or otherwise.

Investor Default. If any Investor defaults shall default in its obligation to purchase Securities that it has agreed to purchase hereunder at a Closing, the observance non-defaulting Investor or performance Investors shall have the option, at its or their sole discretion, to purchase any or all of its covenants and obligations hereunder, and the Securities that such default continues for the greater of five (5) Business Days after the date of receipt of written notice from Existing Members demanding cure of defaulting Investor agreed to purchase hereunder at such default, or the expiration of other applicable cure periods Closing as set forth below. For the avoidance of doubt, in this Agreement, Existing Members no event shall be entitled, as its sole and exclusive remedy hereunder (except with respect the Company have the right to require any right, obligation or liability which survives Closing or termination of this Agreement, including the indemnification obligation of non-defaulting Investor set forth in Paragraph 4.3), to Terminate this Agreement by written notice purchase Securities that a defaulting Investor failed to Investor of such termination and to receive payment of the Deposit as full liquidated damages for such default of Investor the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such purchase at a default, that it is impossible more precisely to estimate the damages to be suffered by Existing Members upon Investor’s default, that such forfeiture of the Deposit is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Existing Members’ actual damages which would be suffered by Existing Members in Closing. In the event of default by any Investor, the Company shall give written notice to the non-defaulting Investors of such default (the “Default Notice”), which Default Notice shall specify the amount of Securities that the defaulting Investor failed to purchase at the applicable Closing (the “Remaining Securities”). Except Each non-defaulting Investor shall have an option, exercisable for a period of 10 days following the date of delivery of the Default Notice, to purchase, on a pro rata basis according to the number of Securities owned by such Investor so electing, the Remaining Securities for the consideration and on the terms and conditions set forth in the Default Notice. Such option shall be exercised by the delivery by such Investor of written notice to the Secretary of the Company. In the event that the options to purchase Remaining Securities under this Section 8.2 have not been exercised by the non-defaulting Investors with respect to all of the Remaining Securities, those Investors who have exercised their options within the 10-day period specified in this Section 8.2 shall have an additional option, for a period of five days next succeeding the expiration of such 10-day period, to purchase all or any right, obligation or liability which survives Closing or termination part of this Agreement, including the indemnification obligation balance of Investor such Remaining Securities on the terms and conditions set forth in Paragraph 4.3the Default Notice, Existing Members’ right which option shall be exercised by the delivery of written notice to Terminate this Agreement and receive payment the Secretary of the Deposit as full liquidated damages, are Existing Members’ sole and exclusive remedies in Company. In the event there are two or more such Investors who choose to exercise the last-mentioned option for a total number of default hereunder Remaining Securities in excess of the number available, the Remaining Securities available for each such Investor’s option shall be allocated to each such Investor pro rata based on the number of Securities owned by Investor, the Investor so electing. The closing of any purchase of Remaining Securities shall occur remotely via exchange of documents and Existing Members hereby waive, relinquish and release any and all other rights and remedies (except any that survive termination pursuant signatures within seven days of the applicable notice to the express provisions Company of the applicable Investor’s election to purchase Remaining Securities in accordance with this Agreement), including, but not limited to: (1) any right to xxx Investor or its affiliates for damages or to prove that Existing Members’ actual damages exceed the Deposit which is hereby provided Existing Members as full liquidated damages, (2) any right to xxx Investor for specific performance, or (3) any other right or remedy which Existing Members may otherwise have against Investor or its affiliates, either at law, or equity or otherwiseSection 8.2.

Investor Default. 11.1 If (i) the Investor defaults shall default in its obligation to pay the balance of the Investor Capital Contribution or shall default in the observance or performance of any of its covenants and other material obligations hereunderto be performed on the Closing Date, and or (ii) Investor shall default in the performance of any of its other material obligations to be performed prior to the Closing Date and, with respect to any default under clause (ii) only, such default continues shall continue for the greater of five (5) Business Days after the date of receipt of written notice from Existing Members demanding cure of such defaultto the Investor, or the expiration of other applicable cure periods set forth in parties hereto agree that the Company’s sole remedy shall be to terminate this Agreement, Existing Members in which event Escrow Agent shall deliver the One Million Two Hundred Ninety Thousand Dollars ($1,290,000) of the Deposit (the “Non-Refundable Deposit”) to Company as liquidated damages, it being expressly understood and agreed that in the event of Investor’s default, the Company’s damages would be entitledimpossible to ascertain and that the Deposit constitutes a fair and reasonable amount of compensation in such event, and shall deliver the remaining balance of the Deposit to the Investor. Upon such termination, neither party to this Agreement shall have any further rights or obligations hereunder except that: (a) the Investor shall return to the Company all written material relating to the Property or the transaction contemplated herein delivered by or on behalf of the Company or Members; (b) Escrow Agent shall deliver the Non-Refundable Deposit to the Company as its sole liquidated damages, it being expressly understood and exclusive remedy hereunder (agreed that in the event of the Investor’s default, the Company’s damages would be impossible to ascertain and that the Deposit constitutes a fair and reasonable amount of compensation in such event, except with respect to any right, obligation or liability which survives Closing or termination breaches of this Agreement, including Surviving Obligations (as hereinafter defined);(c) the indemnification obligation of Surviving Obligations shall survive and continue to bind Investor set forth in Paragraph 4.3), to Terminate this Agreement by written notice to Investor of such termination and to receive payment the Company and (d) the Company shall deliver the remaining balance of the Deposit as full liquidated damages for such default of Investor the parties hereto acknowledging the difficulty of ascertaining the actual damages in the event of such a default, that it is impossible more precisely to estimate the damages to be suffered by Existing Members upon Investor’s default, that such forfeiture of the Deposit is intended not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to estimate Existing Members’ actual damages which would be suffered by Existing Members in the event of default by Investor. Except with respect to any right, obligation or liability which survives Closing or termination of this Agreement, including the indemnification obligation of Investor set forth in Paragraph 4.3, Existing Members’ right to Terminate this Agreement and receive payment of the Deposit as full liquidated damages, are Existing Members’ sole and exclusive remedies in the event of default hereunder by Investor, and Existing Members hereby waive, relinquish and release any and all other rights and remedies (except any that survive termination pursuant to the express provisions of this Agreement), including, but not limited to: (1) any right to xxx Investor or its affiliates for damages or to prove that Existing Members’ actual damages exceed the Deposit which is hereby provided Existing Members as full liquidated damages, (2) any right to xxx Investor for specific performance, or (3) any other right or remedy which Existing Members may otherwise have against Investor or its affiliates, either at law, or equity or otherwiseInvestor.