Common use of Default by the Partnership Clause in Contracts

Default by the Partnership. (a) If, notwithstanding Contributor’s willingness and ability to close and satisfaction of all conditions precedent thereto (except the condition set forth in Section 9.2(e)), the Closing and the consummation of the transactions contemplated herein do not occur by the Outside Date as provided herein by reason of (i) the Partnership’s failure, inability or refusal to deliver the Units, the Cash Amount or any other closing deliverable the Partnership is required to deliver at the Closing pursuant to Section 10.2, or (ii) the condition set forth in Section 9.2(e) not having been satisfied, then Contributor may elect to terminate this Agreement; provided, however, that any such termination shall not be effective unless and until Contributor shall have (x) given the Partnership prior written notice indicating its election to terminate this Agreement under this Section 13.3 and indicating the default or failure of the Partnership giving rise to such termination right, and (y) afforded the Partnership a period of twenty (20) days to seek to cure the default or failure that gave rise to such termination right, which period may be extended by the Partnership for an additional ten (10) days in the aggregate with respect to any matter which is susceptible of cure and cannot be cured by the payment of money, the authorization and issuance of the Units or the delivery of executed documents by the Partnership and its Affiliates. The Parties hereby agree that upon termination of this Agreement pursuant to this Section 13.3(a), (A) Contributor shall have the right to draw on and retain the Deposit L/C(s) and, if still held in the Deposit Escrow Account, the Initial Cash Deposit or Cash Deposit, in an aggregate amount of Forty Six Million and Five Hundred Thousand Dollars ($46,500,000.00) (the “Liquidated Damages Amount”), (B) the Liquidated Damages Amount is a reasonable estimate of the total net detriment Contributor would suffer as a result of the Partnership’s default in its obligations and failure to close the transaction contemplated by this Agreement, and (C) the Parties shall have no further rights or obligations hereunder, except with respect to the Termination Surviving Obligations. Notwithstanding the foregoing provisions of this Section 13.3(a), if the condition set forth in Section 9.2(e) has not been satisfied as a result of a breach of the representation and warranty set forth in Section 8.2(k) due to a Partnership Material Adverse Effect occurring after the Effective Date (and all of the other conditions set forth in Section 9.2 have been satisfied (unless the failure to be so satisfied is due to such Partnership Material Adverse Effect)) or has not been satisfied due to a change in Governmental Regulations, and Contributor exercises its right to terminate this Agreement pursuant to this Section 13.3, then the Liquidated Damages Amount shall be Two Million Dollars ($2,000,000.00). In the event of a termination of this Agreement where Contributor is entitled to receive the Liquidated Damages Amount pursuant to this Section 13.3(a), Contributor’s right to receive payment of the Liquidated Damages Amount shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Contributor, VRLP and their Affiliates for any default or failure of the Partnership resulting in the failure of consummation of the Closing, and Contributor and VRLP expressly waive their rights to seek damages or specific performance in the event of the Partnership’s default and failure to consummate the Closing, except with respect to the Termination Surviving Obligations. Contributor’s right to draw on and retain the Deposit L/C(s) and, if still held in the Deposit Escrow Account, the Initial Cash Deposit or Cash Deposit in an aggregate amount equal to the Liquidated Damages Amount, is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to Contributor. (b) Notwithstanding the foregoing, nothing contained in this Section 13.3 will limit Contributor’s remedies at law, in equity or as herein provided in pursuing (x) Contributor’s actual damages (including attorneys’ fees and costs) in addition to the liquidated damages referred to above if the Partnership records a lis pendens or other lien against the Property or intentionally interferes with or makes any attempt to interfere with Contributor selling the Property to another party, including seeking an injunction or similar relief, where the Partnership is in default under this Agreement for failure to close, notwithstanding Contributor’s willingness and ability to close and satisfaction of all conditions precedent thereto, or (y) remedies for any breach by the Partnership of any of the Termination Surviving Obligations.

Default by the Partnership. The occurrence and continuance of any one or more of the following events constitutes a default by the Partnership under this Agreement ("Partnership Default"): (a) If, notwithstanding Contributor’s willingness and ability to close and satisfaction of all conditions precedent thereto (except the condition set forth in Section 9.2(e)), the Closing and the consummation of the transactions contemplated herein do not occur Failure by the Outside Date as provided herein Partnership at any time to pay any sums payable by reason the Partnership to the District hereunder within ten (10) days after notice from the District that any such payment is past due if not paid when due; (b) Failure by the Partnership to obtain any advance approval of or give advance notice to the District required by this Agreement prior to any material action or omission by the Partnership and such failure continues for 10 days after notice from the District; (ic) Failure by the Partnership’s failure, inability Partnership to observe or refusal to deliver the Units, the Cash Amount or perform any other closing deliverable covenant, agreement, condition or provision of this Agreement, if such failure shall continue for more than thirty (30) days after notice of such failure is given to the Partnership is required to deliver at by the Closing pursuant to Section 10.2, or (ii) the condition set forth in Section 9.2(e) not having been satisfied, then Contributor may elect to terminate this AgreementDistrict; provided, however, that any such termination the Partnership shall not be effective unless and until Contributor shall have in default with respect to matters that cannot be reasonably cured within thirty (x30) given days, so long as the Partnership prior written notice indicating has promptly commended such cure, diligently proceeds in a reasonable manner to complete the same thereafter, and effectuates such cure within one (1) year after commencing such cure; (d) the Partnership admits in writing its election inability to terminate this Agreement pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for the Partnership or for a major part of its property; (e) a trustee or receiver is appointed for the Partnership or for a major part of its property and is not discharged within ninety (90) days after such appointment; (f) bankruptcy, reorganization, receivership, arrangement, insolvency or liquidation proceedings, or other proceedings for relief under this Section 13.3 and indicating any federal or state bankruptcy law, or similar law for the default relief of debtors, are instituted by or failure against the Partnership, and, if instituted against the Partnership, are allowed against it or are consented to by it or are not, dismissed within ninety (90) days after such institution; or (g) any action of the Partnership giving rise to such termination right, and results in a Material Adverse Effect upon the District or could so result with the passage oftime; (yh) afforded the Partnership a period of twenty (20) days to seek to cure the default or failure that gave rise to such termination right, which period may be extended by the Partnership for an additional ten (10) days in the aggregate with respect to observe or perfonn any matter which is susceptible of cure and cannot be cured by the payment of moneycovenant, the authorization and issuance agreement, condition or provision of the Units or the delivery of executed documents by the Partnership and its Affiliates. The Parties hereby agree that upon termination of this Agreement pursuant to this Section 13.3(a), (A) Contributor shall have the right to draw on and retain the Deposit L/C(s) and, if still held in the Deposit Escrow Account, the Initial Cash Deposit or Cash Deposit, in an aggregate amount of Forty Six Million and Five Hundred Thousand Dollars ($46,500,000.00) (the “Liquidated Damages Amount”), (B) the Liquidated Damages Amount is a reasonable estimate of the total net detriment Contributor would suffer as a result of the Partnership’s default in its obligations and failure to close the transaction contemplated by this Agreement, and (C) the Parties shall have no further rights or obligations hereunder, except with respect to the Termination Surviving Obligations. Notwithstanding the foregoing provisions of this Section 13.3(a), if the condition set forth in Section 9.2(e) has not been satisfied as a result of a breach of the representation and warranty set forth in Section 8.2(k) due to a Partnership Material Adverse Effect occurring after the Effective Date (and all of the other conditions set forth in Section 9.2 have been satisfied (unless the failure to be so satisfied is due to such Partnership Material Adverse Effect)) or has not been satisfied due to a change in Governmental Regulations, and Contributor exercises its right to terminate this Agreement pursuant to this Section 13.3, then the Liquidated Damages Amount shall be Two Million Dollars ($2,000,000.00). In the event of a termination of this Agreement where Contributor is entitled to receive the Liquidated Damages Amount pursuant to this Section 13.3(a), Contributor’s right to receive payment of the Liquidated Damages Amount shall be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of Contributor, VRLP and their Affiliates for any default or failure of the Partnership resulting in the failure of consummation of the Closing, and Contributor and VRLP expressly waive their rights to seek damages or specific performance in the event of the Partnership’s default and failure to consummate the Closing, except with respect to the Termination Surviving Obligations. Contributor’s right to draw on and retain the Deposit L/C(s) and, if still held in the Deposit Escrow Account, the Initial Cash Deposit or Cash Deposit in an aggregate amount equal to the Liquidated Damages Amount, is not intended as a forfeiture or penalty but is intended to constitute liquidated damages to ContributorGround Lease. (b) Notwithstanding the foregoing, nothing contained in this Section 13.3 will limit Contributor’s remedies at law, in equity or as herein provided in pursuing (x) Contributor’s actual damages (including attorneys’ fees and costs) in addition to the liquidated damages referred to above if the Partnership records a lis pendens or other lien against the Property or intentionally interferes with or makes any attempt to interfere with Contributor selling the Property to another party, including seeking an injunction or similar relief, where the Partnership is in default under this Agreement for failure to close, notwithstanding Contributor’s willingness and ability to close and satisfaction of all conditions precedent thereto, or (y) remedies for any breach by the Partnership of any of the Termination Surviving Obligations.