Default by Contributor Sample Clauses

Default by Contributor. 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 has not occurred, to close, in which event 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 Contribution Consideration the cost of such action and cure, and all reasonable expenses incurred by Acquiror or Subsidiary, as applicable, in connection therewith, including, but not limited to, attorneys’ fees of Acquiror’s or Subsidiary’s, as applicable, counsel; or (y) in the event the Closing has occurred, to pursue whatever remedies it may have at law or in equity. Notwithstanding anything to the contrary 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 (but not consequential) damages suffered by Acquiror or Subsidiary, as applicable, by reason of Contributor’s defaults hereunder and/or any delay occasioned thereby. The remedies of Acquiror set forth 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 equity, including, without limitation, specific performance, it being understood that Acquiror or Subsidiary’s rights and remedies under this Agreement shall always be non-exclusive and cumulative and that the exercise of one remedy or form of relief available to Acquiror or Subsidiary, as applicable, hereunder shall not be exclusive or constitute a waiver of any other.

Default by Contributor. In the event that the express conditions of Contributor's obligations under this Agreement have been satisfied (or have been waived or deemed waived), and Acquiror has complied with all material terms and conditions set forth in this Agreement to be complied with by Acquiror prior to or at Closing, and Contributor is unwilling or otherwise fails to consummate Closing, then Contributor shall promptly reimburse Acquiror for Acquiror's actual, documented, out-of-pocket expenses incurred in anticipation of consummating the Closing, up to Twenty-Five Thousand Dollars ($25,000), and thereupon Contributor shall, except as expressly provided in this Agreement, have no further obligation or liability to Acquiror under this Agreement, and this Agreement shall be null and void. In the alternative, and the foregoing notwithstanding, Acquiror shall have the right to seek specific performance of Contributor's obligation to contribute the Contributed Interests and complete the Closing hereunder. The foregoing enumerated remedies shall be Acquiror's sole and exclusive remedies hereunder at law or in equity.

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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 Clos...

Default by Contributor. If any of the representations and warranties ---------------------- made by Contributor in this Agreement are inaccurate or incorrect in any material respect on the date made or deemed made, or if Contributor fails to perform its covenants, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of fifteen (15) days after written notice by Acquirer to Contributor or the Closing Date, Acquirer shall have the right, at its sole option, to: (i) terminate this Agreement, whereupon the Deposit shall be returned to Acquirer, Contributor shall reimburse Acquirer on demand for all of Acquirer's Due Diligence and Contract Costs up to $300,000 and neither party shall have any further right or liability to the other under this Agreement except as may be specifically set forth in the Access Agreement and Article 22; and/or (ii) pursue any legal or equitable remedies to which Acquirer ---------- may be entitled on account of the foregoing, including, without limitation, specific performance.

Default by Contributor. In the event the Closing and the consummation of a transaction contemplated by this Agreement does not occur as a result of any default by Contributor, Recipient’s sole remedies shall be to either: (i) terminate this Agreement and receive a refund of the Deposit together with reimbursement of actual third party out of pocket costs incurred by Recipient in connection with its “due diligence” investigation of the Property in an aggregate sum not to exceed Ten Thousand Dollars and No Cents ($10,000.00); or, (ii) file an action against Contributor for specific performance of this Agreement. Recipient’s failure to file an action for specific performance within ninety (90) days of any claimed breach by Contributor shall be deemed to be a waiver of that remedy. In no event shall Recipient be entitled to or seek any form of monetary damages from Contributor, including but not limited to punitive, compensatory, general, special and/or incidental damages, except as set forth in this Section 7.2. Under no circumstances shall Contributor’s agents, conservators, directors, employees, guardians, managers, members, officers, representatives stockholders or trustees, as applicable, have any liability to Recipient for any claims made by Recipient arising out of or connected to this Agreement.

Default by Contributor. In the event that the transaction contemplated by this Agreement does not close on or prior to the Closing Date by reason of the failure of a condition set forth in Section 8.2 that was caused by a default by the Contributor hereunder, the Transferee may, at its option, exercise any one or more of the following remedies as its sole and exclusive remedies: (a) terminate this Agreement in its entirety by written notice to the Contributor, and obtain an immediate refund of the Earn▇▇▇ ▇▇▇ey; or (b) solely in the event that Merit proceeds to close the transactions under the Purchase Agreements and the Contributor willfully refuses to consummate the transactions hereunder, to enforce specific performance of this Agreement.

Default by Contributor. If Contributor defaults in the performance of any of its material obligations under this Agreement or, without the right to do so and in default of its obligations hereunder, fails to complete Closing and such default remains uncured for thirty (30) days after notice from Acquirer of such default, Acquirer may terminate this Agreement upon 30 days written notice to Contributor whereupon, if such default remains uncured, the Deposit and all accrued interest shall be returned to Acquirer, each Contributor, in proportion to its Ownership Percentage shall reimburse Acquirer for all of Acquirer’s reasonable, documented third party costs incurred in connection with the transaction contemplated by this Agreement not to exceed twenty five thousand dollars ($25,000), this Agreement shall be null and void and Contributor shall have no further liability hereunder. If Acquirer does not terminate this Agreement as provided in the previous sentence, Acquirer may exercise any remedies available to it at law or in equity, including, but not limited to, specific performance. Contributor waives the right to assert the defense of lack of mutuality in any action for specific performance instituted by Acquirer.

Default by Contributor. In the event Contributor defaults in its obligations to contribute the Project, then Buyer’s sole and exclusive remedy shall be to terminate this Agreement.

Default by Contributor. 15 ARTICLE 12. NOTICE................................................................................15 ARTICLE 13. MISCELLANEOUS.........................................................................16 Section 13.1 Survival of Representation and Warranties...................................16 Section 13.2 Entire Agreement; No Third-Party Rights.....................................17 Section 13.3 Amendment...................................................................17 Section 13.4 Governing Law; Binding Arbitration..........................................17 Section 13.5 Section Headings............................................................17 Section 13.6 Severability................................................................17 Section 13.7 No Other Rights or Obligations..............................................17 Section 13.8 Counterparts................................................................17 Section 13.9 Construction................................................................17 Section 13.10 Representatives.............................................................17 Section 13.11 Attorneys' Fees.............................................................18 Section 13.12 Interpretation..............................................................18 Section 13.13 Indemnity for Transferee Acts...............................................18 Section 13.14 Indemnity for Contributor Acts..............................................18 Schedule 1 Purchase Agreements Schedule 5.1(f) Transferee Litigation