Common use of Default by Seller/Failure of Conditions Precedent Clause in Contracts

Default by Seller/Failure of Conditions Precedent. (a) Subject to Section 9.1(b), if any condition set forth herein for the benefit of Purchaser cannot or will not be satisfied prior to Closing (unless the failure to satisfy such condition is caused solely by the default of Purchaser under this Agreement), and, if curable, if Seller fails to cure any such matter or satisfy such condition within ten (10) business days after 37 39148893v.18 written notice thereof from Purchaser (or such other time period as may be explicitly provided for herein), (which ten (10) business day or other such time periods shall, if necessary, automatically extend the Closing Date to the expiration date of such ten (10) business day or other such time period) (provided that there shall be no such notice and cure period with respect to Seller’s obligation to timely make the Closing deliveries set forth in Article VII or otherwise perform its obligations to be performed on the Closing Date), or upon the occurrence of any other event that would entitle Purchaser to terminate this Agreement and its obligations hereunder, unless otherwise provided for in this Agreement, Purchaser, as its sole and exclusive remedy shall elect either (a) to terminate this Agreement, in which event (i) the Deposit shall be promptly returned to Purchaser and Purchaser shall retain its right to enforce the indemnities and other provisions of this Agreement which expressly survive a termination of this Agreement, and (ii) all other rights and obligations of Seller and Purchaser hereunder (except those set forth herein which expressly survive a termination of this Agreement) shall terminate immediately; or (b) to waive such matter or condition in writing and proceed to Closing with no reduction in the Purchase Price.

Default by Seller/Failure of Conditions Precedent. (a) Subject to Section 9.1(b), if If any condition set forth herein in Section 5.1 for the benefit of Purchaser cannot or will not be satisfied prior to Closing (unless a “Purchaser Condition Failure”), except as provided in Section 9.1(b) below to the failure to satisfy extent such condition Purchaser Condition Failure is caused solely by the default of Purchaser under this Agreement)also a Seller Default, and, if curable, if Seller fails to cure any such matter or satisfy such condition within Purchaser Condition Failure ten (10) business days Business Days after 37 39148893v.18 written notice thereof from Purchaser (or such other time period as may be explicitly provided for herein), (which ten (10) business day Business Day or other such time periods shall, if necessary, automatically extend the Closing Date to the expiration date of such ten (10) business day Business Day or other such time period) (provided that there shall be no such notice and cure period with respect to Seller’s obligation to timely make the Closing deliveries set forth in Article VII or otherwise perform its obligations to be performed on the Closing Date), or upon the occurrence of any other event that would entitle Purchaser to terminate this Agreement and its obligations hereunder, unless otherwise hereunder (except to the extent expressly provided for otherwise in this AgreementAgreement for such other event), Purchaser, as its sole and exclusive remedy Purchaser shall elect either (a) to terminate this Agreement, in which event (i) the Deposit shall be promptly returned to Purchaser and Purchaser shall retain its right to enforce the indemnities and other provisions of this Agreement which expressly survive a termination of this Agreement, and (ii) all other rights and obligations of Seller and Purchaser hereunder (except those set forth herein which expressly survive a termination of this Agreement) shall terminate immediately; or (b) to waive such matter or condition in writing and proceed to Closing with no reduction in the Purchase Price.

Default by Seller/Failure of Conditions Precedent. (a) Subject to Section 9.1(b), if If any condition set forth herein for the benefit of Purchaser cannot or will not be satisfied prior to Closing (unless the failure to satisfy such condition is caused solely by the default of Purchaser or its Affiliates under this Agreement, or is otherwise within the reasonable control of Purchaser or its Affiliates), and, if curable, if Seller fails to cure any such matter or satisfy such condition within ten (10) business days after 37 39148893v.18 written notice thereof from Purchaser (or such other time period as may be explicitly provided for herein), (which ten (10) business day or other such time periods shall, if necessary, automatically extend the Closing Date to the expiration date of such ten (10) business day or other such time period) (provided that there shall be no such notice and cure period with respect to Seller’s obligation to timely make the Closing deliveries set forth in Article VII or otherwise perform its obligations to be performed on the Closing Date), or upon the occurrence of any other event that would entitle Purchaser to terminate this Agreement and its obligations hereunder, unless otherwise provided for in this Agreement, Purchaser, as its sole and exclusive remedy shall elect either (a) to terminate this Agreement, in which event (i) the Deposit parties hereto shall be promptly returned released from all further obligations hereunder except those which expressly survive a termination of this Agreement; or (b) to Purchaser waive such matter or condition and proceed to Closing with no reduction in the Purchase Price. Notwithstanding the preceding sentence, if, at the Closing, Seller fails to comply in any material respect with any of its obligations contained in Section 7.2 or 7.4 (the “Closing Obligations”), and if all conditions precedent to Seller’s obligations hereunder have been waived or satisfied, Purchaser shall retain have, in addition to Purchaser’s remedies contained in the preceding sentence, the option to waive all other actions, rights, or claims for damages for the failure to perform such Closing Obligations (other than costs and expenses incurred in enforcing this Agreement and its right to enforce the indemnities and other provisions of this Agreement which expressly survive a termination of this AgreementAgreement or Closing), and to bring an equitable action to enforce the Closing Obligations; provided, (i) Purchaser shall provide written notice of Purchaser’s intention to enforce the Closing Obligations by specific performance and Seller shall not have cured performance of the Closing Obligations within ten (10) business days following delivery of such notice, and (ii) Purchaser’s suit for specific performance shall be filed against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the Closing Date, failing which, Purchaser shall be barred from enforcing this Agreement by specific performance and shall be deemed to have elected to terminate this Agreement as provided herein. In the event Purchaser files a suit to enforce the Closing Obligations by specific performance, Purchaser shall accept whatever title Seller has to the Property subject to all liens, encumbrances or other rights and obligations matters (other than Monetary Title Encumbrances) affecting title to the Property (all of Seller and Purchaser hereunder (except those set forth herein which expressly survive a termination of this Agreementshall be deemed Permitted Title Exceptions) shall terminate immediately; or (b) to waive such matter or condition in writing and proceed to Closing with no reduction in the Purchase Price, and in no event shall Seller be obligated to cure or remove or bond against any title defects, liens, encumbrances or other matters affecting title (other than Monetary Title Encumbrances).

Default by Seller/Failure of Conditions Precedent. (a) Subject to Section 9.1(b), if If any condition set forth herein for the benefit of Purchaser cannot or will not be satisfied prior to Closing (unless the failure to satisfy such condition is caused solely by the default of Purchaser or its Affiliates under 41 this Agreement, or is otherwise within the reasonable control of Purchaser), and, if curable, if Seller fails to cure any such matter or satisfy such condition within ten (10) business days after 37 39148893v.18 written notice thereof from Purchaser (or such other time period as may be explicitly provided for herein), ) (which ten (10) business day or other such time periods shall, if necessary, automatically extend the Closing Date to the expiration date of such ten (10) business day or other such time period) (provided that there shall be no such notice and cure period with respect to Seller’s obligation to timely make the Closing deliveries set forth in Article VII or otherwise perform its obligations to be performed on the Closing Date), or upon the occurrence of any other event that would entitle Purchaser to terminate this Agreement and its obligations hereunder, unless otherwise provided for in this Agreement, Purchaser, as its sole and exclusive remedy shall elect either (a) to terminate this Agreement, in which event (i) the Deposit shall be promptly returned to Purchaser and Purchaser shall retain its right to enforce the indemnities and other provisions of this Agreement which expressly survive a termination of this Agreement, and (ii) (A) Seller shall reimburse Purchaser upon demand for the actual out-of-pocket expenses incurred by Purchaser and its Affiliates to third parties (including, without limitation, Purchaser’s and its Affiliates’ attorneys, consultants and lenders) as a result of its due diligence and negotiation of this Agreement and the transactions contemplated hereby not to exceed Two Hundred Thousand and No/100 Dollars ($200,000.00) in the aggregate; provided that this Section 9.1(a)(ii)(A) shall not apply if the conditions set forth in Sections 5.1(a), (b), (c) are satisfied and, despite Seller’s compliance with both Sections 2.4(e) and 6.9, the conditions set forth in Section 5.1(d) or Section 5.1(e) are not satisfied, or (b) if the condition which has not been satisfied represents an intentional and willful breach by Seller of its obligations hereunder, then Seller shall reimburse Purchaser upon demand for the actual out-of-pocket expenses incurred by Purchaser and its Affiliates to third parties (including, without limitation, Purchaser’s and its Affiliates’ attorneys, consultants and lenders) as a result of its due diligence and negotiation of this Agreement and the transactions contemplated hereby not to exceed Four Hundred Thousand and No/100 Dollars ($400,000.00) in the aggregate, and (iii) all other rights and obligations of Seller and Purchaser hereunder (except those set forth herein which expressly survive a termination of this Agreement) shall terminate immediately; or (b) to waive such matter or condition in writing and proceed to Closing with no reduction in the Purchase Price. Notwithstanding the preceding sentence, if, at the Closing, Seller fails to comply in any material respect with any of its obligations contained in Section 7.2 or 7.4 (the “Closing Obligations”), and if all conditions precedent to Seller’s obligations hereunder have been waived or satisfied (other than any conditions precedent which are not satisfied due to the default by Seller under this Agreement or any other agreements to which Seller is a party), Purchaser shall have, in addition to Purchaser’s remedies contained in the preceding sentence, the option to waive all other actions, rights, or claims for damages for the failure to perform such Closing Obligations (other than costs and expenses incurred in enforcing this Agreement and its right to enforce the indemnities and other provisions of this Agreement which expressly survive a termination of this Agreement or Closing), and to bring an equitable action to enforce the Closing Obligations; provided, (i) Purchaser shall provide written notice of Purchaser’s intention to enforce the Closing Obligations by specific performance and Seller shall not have cured performance of the Closing Obligations within ten (10) business days following delivery of such notice, and (ii) Purchaser’s suit for specific performance shall be filed against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the Closing Date, failing which, Purchaser shall be barred from enforcing this Agreement by specific performance and shall be deemed to have elected to terminate this Agreement and receive a return of the Deposit as provided herein. In the event Purchaser elects to seek specific performance Purchaser may at any time thereafter elect to abandon the remedy of specific performance and instead terminate this Agreement under this Section.