Common use of Failure of Conditions to Closing Clause in Contracts

Failure of Conditions to Closing. ‌ (a) If Buyer is unable to timely satisfy (and Seller has not waived in writing) the conditions precedent to Seller’s obligation to effect the Closing set forth in Section 12.1, then Seller, in Seller’s sole and absolute discretion, may (in addition to any rights Seller may have under Section 15.1 of this Agreement in the event that the non-satisfaction of a condition is a result of a breach or default by Buyer) either: (i) terminate this Agreement by written notice thereof to Buyer and Escrow Agent, and to the extent provided under Section 15.2 with respect to a breach or default by Buyer, Escrow Agent shall disburse the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Seller and upon such refund or disbursement being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (b) If any condition precedent to Xxxxx’s obligation to effect the Closing set forth in Section‌ 12.2 has not been timely satisfied, then Buyer, in Buyer’s sole and absolute discretion, may either: (i) terminate this Agreement by written notice thereof to Seller and Escrow Agent and, unless Seller is entitled to the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit as a result of Buyer’s breach or default under Section 15.1, Escrow Agent shall refund the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer, and upon such transfer of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer or Seller, as applicable, being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (c) Notwithstanding anything to the contrary set forth in this Section 12.4, the failure by Seller to remove any Mandatory Title Removal Items in accordance with Section 6.2(c) above as to all portions of the Property as to which Seller holds title at Closing, shall constitute a default by Seller hereunder and entitle Buyer to the remedies provided for in Section 15.2.

Failure of Conditions to Closing. ‌ (a) If Buyer is unable to timely satisfy (and Seller has not waived in writing) Escrow Agent shall be responsible for confirming, on or before the Closing Date, that the conditions precedent to Seller’s obligation to effect the Closing set forth in Section 12.1Sections 8.1 and 8.2 hereof, then Sellerand as set forth elsewhere in this Agreement, in Seller’s sole have been satisfied. Purchaser and absolute discretionSellers hereby agree to deliver their Notices to Escrow Agent, may (in addition on or before the Closing Date, of the satisfaction or waiver of all conditions to any rights Seller may have under Section 15.1 of this Agreement Closing hereunder, and, in the event that both Purchaser and Sellers specifically notify and instruct Escrow Agent, in writing, to proceed to Closing hereunder, all such conditions to Closing hereunder that are not otherwise satisfied shall be deemed to have been waived by both Purchaser and Sellers. Escrow Agent shall not proceed to Closing hereunder unless both Purchaser and Sellers specifically notify and instruct Escrow Agent to do so. Sellers and Purchaser will not take any action that is inconsistent with its obligations under this Agreement in any material respect or that could reasonably be expected to hinder or delay the non-satisfaction consummation of a condition is the transactions contemplated by this Agreement. Sellers and Purchaser shall use commercially reasonable efforts to satisfy the closing conditions set forth herein. Each party shall at any time and from time to time after the Closing execute, acknowledge where required, and deliver such further instruments and documents, and take such other action as may be reasonably requested by the other party in order to carry out the purposes of this Agreement. In the event any of the conditions to closing set forth in this Agreement are not satisfied or waived by the applicable party by the Closing Date (other than as a result of a breach or default by Buyer) either: (i) terminate failure of Purchaser to have used commercially reasonable efforts to satisfy its obligations under this Agreement), then Purchaser shall have the right at its option to declare this Agreement by written notice thereof to Buyer terminated and Escrow Agentnull and void, and to the extent provided under Section 15.2 with respect to a breach or default by Buyer, Escrow Agent shall disburse the First Xxxxxxx Money Deposit and in which case the Xxxxxxx Money Deposit shall be immediately returned to Seller Purchaser (and upon such refund or disbursement being made, this Agreement right shall terminate and have no further force or effect and neither Party shall have survive any further rights or obligations with respect to each other or termination of this Agreement) and each of the parties shall be relieved from further liability to the other, except for any obligations that as otherwise expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated herebyprovided herein. (b) If any condition precedent to Xxxxx’s obligation to effect the Closing set forth in Section‌ 12.2 has not been timely satisfied, then Buyer, in Buyer’s sole and absolute discretion, may either: (i) terminate this Agreement by written notice thereof to Seller and Escrow Agent and, unless Seller is entitled to the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit as a result of Buyer’s breach or default under Section 15.1, Escrow Agent shall refund the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer, and upon such transfer of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer or Seller, as applicable, being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (c) Notwithstanding anything to the contrary set forth in this Section 12.4, the failure by Seller to remove any Mandatory Title Removal Items in accordance with Section 6.2(c) above as to all portions of the Property as to which Seller holds title at Closing, shall constitute a default by Seller hereunder and entitle Buyer to the remedies provided for in Section 15.2.

Failure of Conditions to Closing. ‌ (a) If Buyer is unable to timely satisfy (and Seller has not waived in writing) Escrow Agent shall be responsible for confirming, on or before the Closing Date, that the conditions precedent to Seller’s obligation to effect the Closing set forth in Section 12.1Sections 8.1 and 8.2 hereof, then Sellerand as set forth elsewhere in this Agreement, in Seller’s sole have been satisfied. Purchaser and absolute discretionSeller hereby agree to deliver their Notices to Escrow Agent, may (in addition on or before the Closing Date, of the satisfaction or waiver of all conditions to any rights Seller may have under Section 15.1 of this Agreement Closing hereunder, and, in the event that both Purchaser and Seller specifically notify and instruct Escrow Agent, in writing, to proceed to Closing hereunder, all such conditions to Closing hereunder that are not otherwise satisfied shall be deemed to have been waived by both Purchaser and Seller. Escrow Agent shall not proceed to Closing hereunder unless both Purchaser and Seller specifically notify and instruct Escrow Agent to do so. Seller and Purchaser will not take any action that is inconsistent with its obligations under this Agreement in any material respect or that could reasonably be expected to hinder or delay the non-satisfaction consummation of a condition is the transactions contemplated by this Agreement. Seller and Purchaser shall use commercially reasonable efforts to satisfy the closing conditions set forth herein. Each party shall at any time and from time to time after the Closing execute, acknowledge where required, and deliver such further instruments and documents, and take such other action as may be reasonably requested by the other party in order to carry out the purposes of this Agreement. In the event any of the conditions to closing set forth in this Agreement are not satisfied or waived by the applicable party by the Closing Date (other than as a result of a breach or default by Buyer) either: (i) terminate failure of Purchaser to have used commercially reasonable efforts to satisfy its obligations under this Agreement), then Purchaser shall have the right at its option to declare this Agreement by written notice thereof to Buyer terminated and Escrow Agentnull and void, and to the extent provided under Section 15.2 with respect to a breach or default by Buyer, Escrow Agent shall disburse the First Xxxxxxx Money Deposit and in which case the Xxxxxxx Money Deposit shall be immediately returned to Seller Purchaser and upon such refund or disbursement being made, this Agreement each of the parties shall terminate and have no be relieved from further force or effect and neither Party shall have any further rights or obligations with respect liability to each other or this Agreementthe other, except for any obligations that as otherwise expressly survive terminationprovided herein. REMEDIES FOR PRE-CLOSING AND POST-CLOSING DEFAULTS ; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (b) If any condition precedent to Xxxxx’s obligation to effect the Closing set forth in Section‌ 12.2 has not been timely satisfied, then Buyer, in Buyer’s sole and absolute discretion, may either: (i) terminate this Agreement by written notice thereof to Seller and Escrow Agent and, unless Seller is entitled to the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit as a result of Buyer’s breach or default under Section 15.1, Escrow Agent shall refund the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer, and upon such transfer of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer or Seller, as applicable, being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (c) Notwithstanding anything to the contrary set forth in this Section 12.4, the failure by Seller to remove any Mandatory Title Removal Items in accordance with Section 6.2(c) above as to all portions of the Property as to which Seller holds title at Closing, shall constitute a default by Seller hereunder and entitle Buyer to the remedies provided for in Section 15.2.LIQUIDATED DAMAGES

Failure of Conditions to Closing. ‌ (a) If Buyer is unable Borrower fails to timely satisfy (and Seller has not waived in writing) each of the conditions precedent to Seller’s obligation to effect the Closing set forth in Section 12.1, then Seller, in Seller’s sole and absolute discretion, may (in addition to any rights Seller may have under Section 15.1 of this Agreement in the event that the non-satisfaction of a condition is a result of a breach or default by Buyer) either: (i) terminate this Agreement by written notice thereof to Buyer and Escrow Agent, and 2.1 above prior to the extent provided under Outside Payoff Date (as the same may be extended pursuant to Section 15.2 with respect 1.3 hereof), (a) Lender’s agreement to a breach or default by Buyer, Escrow Agent accept the Discounted Payoff Amount shall disburse the First Xxxxxxx Money Deposit be deemed terminated and the Xxxxxxx Money Deposit to Seller and upon such refund or disbursement being made, this Agreement shall terminate and have of no further force or effect, (b) Lender shall be entitled to retain the Liquidated Damages Payment (as the same may be increased pursuant to Section 1.3 hereof) , as liquidated damages, (c) the Deposit (less the Liquidated Damages Payment) shall be applied by Lender to the Loans on the Outside Payment Date (as the same may be extended pursuant to Section 1.3 hereof) in the following order: first, to any accrued and unpaid interest on the Junior Mezz A Loan; second, to the outstanding principal amount of the Junior Mezz A Loan; third, to any accrued and unpaid interest on the Senior Mezz Loan; and fourth, to the outstanding principal amount of the Senior Mezz Loan, (d) neither Borrower nor any other party shall be entitled to a discounted payoff of the Loans and (e) the Loan Documents and the Junior Mezzanine A Loan Documents shall remain in full force and effect and neither Party shall have any further rights or obligations with respect continue to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate control the transactions contemplated herebyrelationship between the parties. (b) If any condition precedent to Xxxxx’s obligation to effect Borrower pays the Closing set forth in Section‌ 12.2 Discounted Payoff Amount, but Lender determines that an Event of Default has not been timely satisfiedoccurred and continues under the Senior Loan Documents at the time of such payment, then Buyer, in Buyer’s sole and absolute discretion, may either: (i) terminate this Agreement by written notice thereof to Seller and Escrow Agent andLender shall immediately notify the Borrower of same, unless Seller is entitled to the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit as a result of Buyer’s breach or default under Section 15.1, Escrow Agent shall refund the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer, and upon such transfer of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer or Seller, as applicable, being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition Lender shall return the Discounted Payoff Amount (less the Deposit) to Borrower within two (2) business days of receipt thereof and consummate (iii) the transactions contemplated hereby. provision of clause (c) Notwithstanding anything to the contrary set forth in this Section 12.4, the failure by Seller to remove any Mandatory Title Removal Items in accordance with Section 6.2(ca) above as to all portions of the Property as to which Seller holds title at Closing, shall constitute a default by Seller hereunder and entitle Buyer to the remedies provided for in Section 15.2apply.

Failure of Conditions to Closing. ‌ (a) If Buyer is unable to timely satisfy (and Seller has not waived in writing) the conditions any condition precedent to Seller’s obligation to effect the Closing set forth in Section 12.111.01 has not been timely satisfied (and Seller has not waived in writing) by December 31, then 2020 (the “Outside Date”), Seller, in Seller’s sole and absolute discretion, may (in addition to any rights Seller may have under Section 15.1 14.01 of this Agreement in the event that the non-satisfaction of a condition is a result of a breach or default by BuyerPurchaser) either: (i) terminate this Agreement by written notice thereof to Buyer and Escrow AgentPurchaser, and to the extent provided under Section 15.2 with respect to a breach or default by Buyer, Escrow Agent shall disburse the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Seller and upon such refund or disbursement being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or and/or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (b) If any condition precedent to XxxxxPurchaser’s obligation to effect the Closing set forth in Section‌ 12.2 Section 11.02 has not been timely satisfiedsatisfied (and Purchaser has not waived in writing) by the Outside Date, then BuyerPurchaser, in BuyerPurchaser’s sole and absolute discretion, may (in addition to any rights Purchaser may have under Section 14.02 of this Agreement in the event that the non-satisfaction of a condition is a result of a breach or default by Seller) either: (i) terminate this Agreement by written notice thereof to Seller and Escrow Agent and, unless Seller is entitled to the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit as a result of Buyer’s breach or default under Section 15.1, Escrow Agent shall refund the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to BuyerSeller, and upon such transfer of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer or Seller, as applicable, being made, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or and/or obligations with respect to each other or this Agreement, except for any obligations that expressly survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated hereby. (c) Notwithstanding anything The failure to the contrary satisfy any condition set forth in this Section 12.411.02 that is not reasonably susceptible of being satisfied within the time agreed to in writing by the Parties shall not constitute a default, the breach of a covenant, or other failure to perform by Seller to remove any Mandatory Title Removal Items in accordance with Section 6.2(c) above as to all portions hereunder unless the non-satisfaction of the Property as to which Seller holds title at Closing, shall constitute such condition is a result of a breach or default by Seller hereunder of the terms of this Agreement, in which event Purchaser shall have all rights and entitle Buyer to the remedies provided for set forth in Section 15.214.02.

Failure of Conditions to Closing. ‌ (a) If Buyer If, except as provided in 10.04(c), Purchaser is unable to timely satisfy (and Seller has not waived in writing) the conditions precedent to Seller’s obligation to effect the Closing set forth in Section 12.1Closing, then Sellersuch failure shall constitute a default hereunder, in Seller’s sole and absolute discretionwhich case, may (in addition Seller shall have the right to any rights Seller may have under Section 15.1 of this Agreement in the event that the non-satisfaction of a condition is a result of a breach or default by Buyer) either: (i) terminate this Agreement by written notice thereof to Buyer and Escrow AgentPurchaser in accordance with the terms of this Agreement. If this Agreement is so terminated, and then Seller shall be entitled to receive the extent provided under Section 15.2 with respect to a breach or default by Buyer, Escrow Agent shall disburse the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Seller and upon such refund or disbursement being madethereafter, this Agreement shall terminate and have no further force or effect and neither Party shall have any further rights or obligations with respect to each other or this Agreementhereunder, except for any obligations that those expressly stated to survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated herebytermination hereof, if any. (b) If any condition Seller is unable to timely satisfy the conditions precedent to XxxxxPurchaser’s obligation to effect the Closing set forth in Section‌ 12.2 (and Purchaser has not been timely satisfiedwaived the same in writing), then BuyerSeller may, if it so elects and without any abatement in Buyer’s sole and absolute discretion, may eitherthe Purchase Price: (i) adjourn the Closing Date for a period or periods not to exceed twenty (20) Business Days in the aggregate after the Closing Date; and (ii) if, after any such extension, the conditions precedent to Purchaser’s obligation to effect the Closing continue not to be satisfied (and Purchaser has not waived the same in writing) or Seller does not elect such extension and, in either case, such failure of condition precedent is not the result of Seller’s default hereunder, then Purchaser or Seller shall be entitled to terminate this Agreement by written notice thereof to Seller and Escrow Agent andthe other Party in accordance with the terms of this Agreement. If this Agreement is so terminated, unless Seller is then Purchaser shall be entitled to receive the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit as a result of Buyer’s breach or default under Section 15.1, Escrow Agent shall refund the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer, and upon such transfer of the First Xxxxxxx Money Deposit and the Xxxxxxx Money Deposit to Buyer or Seller, as applicable, being made, this Agreement shall terminate and have no further force or effect and thereafter neither Party shall have any further rights or obligations with respect to each other or this Agreementhereunder, except for any obligations that those expressly stated to survive termination; or (ii) waive any unsatisfied condition and consummate the transactions contemplated herebytermination hereof, if any. (c) Notwithstanding anything If the Managing Member Approval has not been obtained by the Closing Date, then provided that both parties have used reasonably diligent efforts to obtain the approval and are not otherwise in default under this Agreement, either Purchaser or Seller shall be entitled to terminate this Agreement by notice thereof to the contrary set forth in this Section 12.4, the failure by Seller to remove any Mandatory Title Removal Items other Party in accordance with Section 6.2(c) above as the terms of this Agreement. If this Agreement is so terminated, then Purchaser shall be entitled to all portions of receive the Property as Xxxxxxx Money Deposit and thereafter neither Party shall have any further obligations hereunder, except those expressly stated to which Seller holds title at Closingsurvive the termination hereof, shall constitute a default by Seller hereunder and entitle Buyer to the remedies provided for in Section 15.2if any.