Common use of Default by Contributor Clause in Contracts

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. If (i) any of Contributor’s 's representations and warranties contained herein shall not be true and correct correct, in all material respects, on the Closing Contract Date, or if (ii) Contributor fails to perform any of the covenants and agreements contained herein to be performed by Contributor within the time for performance as specified herein (including Contributor’s 's obligation to close), or (iii) any of the Acquiror's Conditions Precedent shall not have been satisfied as of the Closing Date, then Acquiror or Subsidiary, as applicable, may elect: elect either to (x) in the event the Closing has not occurred, terminate Acquiror's obligations under this Agreement by written notice to closeContributor, in which event Acquiror shall retain all rights and remedies available to it, or Subsidiary may (y) close and, except in the case of clause (iii) above, 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 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, reasonable 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' fees. Notwithstanding anything to the contrary herein and in addition to any other remedies of Acquiror or Subsidiary, as applicableAcquiror, 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 '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 otherincluding Acquiror's Reasonable Costs.

Default by Contributor. If any of Contributor’s or any Recipient’s representations and warranties contained herein shall not be substantially true and correct on the Closing Date, or if Contributor or any Recipient fails to perform any of the covenants and agreements contained herein to be performed by Contributor (including Contributor’s obligation to close), Acquiror or Subsidiaryany Recipient, as applicablethe case may be, or if any of the Acquiror’s Conditions Precedent shall not have been satisfied, Acquiror 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 or the applicable Recipients, as the case may be, 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 herein, in addition to any other remedies of Acquiror or Subsidiary, as applicableaction for damages, 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 and any of the Recipient’s defaults hereunder and/or any delay occasioned thereby, and any claims by Acquiror for a breach of representations or warranties shall be subject to the six month limitation provided in Sections 8.2.2 and 10.1.12. 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 but shall otherwise available to Acquiror or Subsidiary, as applicable, be exclusive of any other remedies at law or in equity, including, without limitation, specific performance, it being understood that Acquiror or Subsidiaryhowever Acquiror’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. If any of Contributor’s representations and warranties contained herein shall not be true and correct on (a) In the Closing Date, or if event that Contributor fails to keep and perform any of the covenants each and agreements contained every obligation, covenant and agreement herein by Contributor to be kept or performed by after OP has made the Pre- Contribution Loan to Contributor, then OP may pursue an action against Contributor (including and the 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 obligation 's agreements to close)convey the Property. Notwithstanding the foregoing, Acquiror or Subsidiary, as applicable, may elect: (x) in the event the Closing has not occurred, OP's right to close, in which event Acquiror or Subsidiary may file an action for either or both of specific performance and damages to compel against Contributor to cure all or any of such default(s), in whole or in part, whereupon Acquiror or Subsidiary, as applicable, (i) shall be entitled limited to deduct from the Contribution Consideration period of thirty (30) days following notice by OP to Contributor setting forth the cost obligation, covenant or agreement which Contributor has failed to keep or perform and (ii) shall require evidence of such action and cureOP's ability to perform all of the obligations of OP then capable of being performed at the point in time of Contributor's breach or default. (b) EXCEPT IN THE CASE WHERE OP HAS MADE THE PRE- CONTRIBUTION LOAN TO CONTRIBUTOR AS PROVIDED IN SUBPARAGRAPH (a) ABOVE, and all reasonable expenses incurred by Acquiror 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 other limitations or Subsidiaryremedies contained herein, 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 of any dispute between 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 parties respecting this Agreement or otherwise available the transactions herein contemplated prior to Acquiror the time that OP has made the Pre- Contribution Loan to Contributor, OP hereby waives (i) any right to record or Subsidiaryfile a lis pendens or other similar notice of suit, as applicable(ii) any right to seek specific performance of this Agreement, at law and (iii) any right to assert any claim affecting the right of possession 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 title to 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 otherProperty.