Common use of Failure to Close Property Closing Clause in Contracts

Failure to Close Property Closing. The Members acknowledge that upon execution of this Agreement, (i) the Property Owner Subsidiary will have funded (or may be obligated to fund) the Purchase Deposit under the Purchase Agreement and (ii) the Members shall be obligated to fund their respective initial capital contributions set forth in this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement, then in addition to any other remedy set forth in this Agreement, the non-defaulting Member shall have the unilateral authority and without the consent of the defaulting Member to cause the Company and the Property Owner Subsidiary to close the Property Closing, in which event the defaulting Member shall be no longer be a Member of the Company and shall receive no return of its capital to the extent such defaulting Member had previously funded any part of its capital under this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement and the non-defaulting member elects not to close the Property Closing, the defaulting Member shall be liable for the non-defaulting Member’s share of the Purchase Deposit that is not returned to the non-defaulting Member and for all costs and expenses incurred by such non-defaulting Member incurred in connection with this Agreement and the Project, including all costs to negotiate this Agreement, to the extent such costs and expenses have not previously been reimbursed to such non-defaulting Member (the lost Purchase Deposit and such costs and expenses, collectively, the “Reimbursable Expenses”). The defaulting Member shall pay to the non-defaulting Member such reimbursement within ten (10) days of the non-defaulting Member’s written request therefor, which request shall reasonably substantiate the costs and expenses incurred. If the defaulting Member is (i) KBS Member then KBS SOR US Properties II LLC (the “KBS Credit Party”) shall guaranty the payment of the Reimbursable Expenses incurred by JV Member, or (ii) JV Member then KEK Family Holdings, LLC, a Delaware limited liability SMRH:479102057.10 22 company (the “JV Member Credit Party”) shall guaranty the Reimbursable Expenses incurred by KBS Member. Except as provided in Section 1.05 above, if the Property Closing does not otherwise occur and the Purchase Deposit is returned to the Property Owner Subsidiary, then the Company shall be dissolved pursuant to Article VIII.

Failure to Close Property Closing. The Members acknowledge that upon execution of this Agreement, (i) the Property Owner Subsidiary will have funded (or may be obligated to fund) the Purchase Deposit Xxxxxxx Money under the Purchase Agreement and (ii) the Members shall be obligated to fund their respective initial capital contributions set forth in this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement, then in addition to any other remedy set forth in this Agreement, the non-defaulting Member shall have the unilateral authority and without the consent of the defaulting Member to cause the Company and the Property Owner Subsidiary to close the Property Closing, in which event the defaulting Member shall be no longer be a Member of the Company and shall receive no return of its capital to the extent such defaulting Member had previously funded any part of its capital under this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement and the non-defaulting member elects not to close the Property Closing, the defaulting Member shall be liable for the non-defaulting Member’s share of the Purchase Deposit Xxxxxxx Money that is not returned to the non-defaulting Member and for all costs and expenses incurred by such non-defaulting Member incurred in connection with this Agreement and the ProjectProperty, including all costs to negotiate this Agreement, to the extent such costs and expenses have not previously been reimbursed to such non-defaulting Member (the lost Purchase Deposit Xxxxxxx Money and such costs and expenses, collectively, the “Reimbursable Expenses”). The defaulting Member shall pay to the non-defaulting Member such reimbursement within ten (10) days of the non-defaulting Member’s written request therefor, which request shall reasonably substantiate the costs and expenses incurred. If SMRH:479330698.9 the defaulting Member is (i) KBS Co-Managing Member then KBS SOR US Properties II LLC (the “KBS Credit Party”) shall guaranty the payment of the Reimbursable Expenses incurred by JV Member, or (ii) JV Member then KEK Family HoldingsOnyx Equities, LLC, a Delaware New Jersey limited liability SMRH:479102057.10 22 company (the “JV Member Credit Party”) shall guaranty the Reimbursable Expenses incurred by KBS Co-Managing Member. Except as provided in Section 1.05 above, if the Property Closing does not otherwise occur and the Purchase Deposit Xxxxxxx Money is returned to the Property Owner Subsidiary, then the Company shall be dissolved pursuant to Article VIII.

Failure to Close Property Closing. The Members acknowledge that upon execution of this Agreement, (i) the Property Owner Subsidiary will have funded (or may be obligated to fund) the Purchase Deposit under the Purchase Agreement and (ii) the Members shall be obligated to fund their respective initial capital contributions set forth in this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary LLC to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement, then in addition to any other remedy set forth in this Agreement, the non-defaulting Member shall have the unilateral authority and without the consent of the defaulting Member to cause the Company and the Property Owner Subsidiary LLC to close the Property Closing, in which event the defaulting Member shall be no longer be a Member of the Company and shall receive no return of its capital to the extent such defaulting Member had previously funded any part of its capital under this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary LLC to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement and the non-defaulting member elects not to close the Property Closing, the defaulting Member shall be liable for the non-defaulting Member’s share of the Purchase Deposit that is not returned to the non-defaulting Member and for all costs and expenses incurred by such non-defaulting Member incurred in connection with this Agreement and the ProjectProperty, including all costs to negotiate this Agreement, to the extent such costs and expenses have not previously been reimbursed to such non-defaulting Member (the lost Purchase Deposit and such costs and expenses, collectively, the “Reimbursable Expenses”). The defaulting Member shall pay to the non-defaulting Member such reimbursement within ten (10) days of the non-defaulting Member’s written request therefor, which request shall reasonably substantiate the costs and expenses incurred. If the defaulting Member is (i) KBS Member then KBS SOR US Properties II LLC LLC, a Delaware limited liability company (the “KBS Credit Party”) ), shall guaranty the payment of the Reimbursable Expenses incurred by JV Member, or (ii) JV Member then KEK Family HoldingsEncore Hospitality, LLC, a Delaware limited liability SMRH:479102057.10 22 company (the “JV Member Credit Party”) shall guaranty the Reimbursable Expenses incurred by KBS MemberKBS. Except as provided in Section 1.05 above, if the Property Closing does not otherwise occur and the Purchase Deposit is returned to the Property Owner SubsidiaryLLC, then the Company shall be dissolved pursuant to Article VIII.

Failure to Close Property Closing. The Members acknowledge that upon execution of this Agreement, (i) the Property Owner Subsidiary will have funded be required to fund the Deposit under the Purchase Agreement, (or may be obligated to fundii) the Purchase Deposit under the Purchase Agreement will be non-refundable subject to the express conditions to the Property Closing set forth in the Purchase Agreement, including the failure of the holders of the Mortgage Loan and Mezzanine Loan to approve the Subsidiaries’ assumption of the Loan, (iiiii) the Members shall be obligated to fund their respective initial capital contributions set forth in accordance with this Section 3.01. In the event If a Member fails to fund the portion full amount of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to in accordance with this Section 3.01(a) or (b), as applicable, 3.01 or otherwise refuses to allow the Property Owner Subsidiary Subsidiaries to close the Property Closing and assumption of the Loan under the Purchase Agreement in violation of this Agreement or the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement, then in addition additional to any other remedy set forth in this Agreement, the non-defaulting Member shall have the unilateral authority and without the consent of the defaulting Member to cause the Company and the Property Owner Subsidiary Subsidiaries to close the Property ClosingClosing and assumption of the Loan pursuant to the Purchase Agreement, in which event the defaulting Member shall be no longer be a Member of the Company and shall receive no return of its capital to the extent such defaulting Member had previously funded any part of its capital under this Section 3.01. In the event a Member fails to fund the portion full amount of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to in this Section 3.01(a) or (b), as applicable, 3.01 or otherwise refuses to allow the Property Owner Subsidiary Subsidiaries to close the Property Closing or the assumption of the Loan under the Purchase Agreement in violation of this Agreement or the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement and the non-defaulting member elects not to close the Property Closing, the defaulting Member shall be liable for the non-defaulting Member’s share of the Purchase Deposit that is not returned to the non-defaulting Member and for all costs and expenses incurred by such non-defaulting Member incurred in connection with this Agreement and the ProjectProperty, including all costs to negotiate this Agreement, to the extent such costs and expenses have not previously been reimbursed to such non-defaulting Member (the lost Purchase Deposit and such costs and expenses, collectively, the “Reimbursable Expenses”). The defaulting Member shall pay to the non-defaulting Member such reimbursement within ten (10) days of the non-defaulting Member’s written request therefor, which request shall reasonably substantiate the costs and expenses Reimbursable Expenses incurred. If the defaulting Member is (i) KBS Member then KBS SOR US Properties II Properties, LLC (the “KBS Credit Party”) shall guaranty the payment of the Reimbursable Expenses incurred by JV Member, or (ii) JV Member then KEK Family HoldingsSavanna Real Estate Fund III, LLC, a Delaware limited liability SMRH:479102057.10 22 company L.P. (the “JV Member Savanna Credit Party”) shall guaranty the Reimbursable Expenses incurred by KBS MemberKBS. Except as provided in Section 1.05 above, if If the Property Closing does not otherwise occur and the Purchase Deposit is returned to the Property Owner Subsidiary, then the Company shall be dissolved pursuant to Article VIII.. 3.02

Failure to Close Property Closing. The Members acknowledge that upon execution of this Agreement, (i) the Property Owner Subsidiary LLC will have funded the First Deposit under the Purchase Agreement, (or may be obligated to fundii) the Purchase Deposit under the Purchase Agreement and will be non-refundable subject to the express conditions to the Property Closing set forth in the Purchase Agreement, (iiiii) the Members shall be obligated to fund their respective initial capital contributions set forth in this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary LLC to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement, then in addition to any other remedy set forth in this Agreement, the non-defaulting Member shall have the unilateral authority and without the consent of the defaulting Member to cause the Company and the Property Owner Subsidiary LLC to close the Property Closing, in which event the defaulting Member shall be no longer be a Member of the Company and shall receive no return of its capital to the extent such defaulting Member had previously funded any part of its capital under this Section 3.01. In the event a Member fails to fund the portion of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to Section 3.01(a) or (b), as applicable, or otherwise refuses to allow the Property Owner Subsidiary LLC to close the Property Closing under the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement and the non-defaulting member elects not to close the Property Closing, the defaulting Member shall be liable for the non-defaulting Member’s share of the Purchase Deposit that is not returned to the non-defaulting Member and for all costs and expenses incurred by such non-defaulting Member incurred in connection with this Agreement and the ProjectProperty, including all costs to negotiate this Agreement, to the extent such costs and expenses have not previously been reimbursed to such non-defaulting Member (the lost Purchase Deposit and such costs and expenses, collectively, the “Reimbursable Expenses”). The defaulting Member shall pay to the non-defaulting Member such reimbursement within ten (10) days of the non-defaulting Member’s written request therefor, which request shall reasonably substantiate the costs and expenses incurred. If the defaulting Member is (i) KBS Member then KBS SOR US Properties II LLC (the “KBS Credit Party”) shall guaranty the payment of the Reimbursable Expenses incurred by JV Member, or (ii) JV Member then KEK Family HoldingsIntegrated Capital, LLC, a Delaware California limited liability SMRH:479102057.10 22 company (the “JV Member IC Credit Party”) shall guaranty the Reimbursable Expenses incurred by KBS MemberKBS. Except as provided in Section 1.05 above, if the Property Closing does not otherwise occur and the Purchase Deposit is returned to the Property Owner SubsidiaryLLC, then the Company shall be dissolved pursuant to Article VIII.

Failure to Close Property Closing. The Members acknowledge that upon execution of this Agreement, (i) the Property Owner Subsidiary will have funded be required to fund the Deposit under the Purchase Agreement, (or may be obligated to fundii) the Purchase Deposit under the Purchase Agreement will be non-refundable subject to the express conditions to the Property Closing set forth in the Purchase Agreement, including the failure of the holders of the Mortgage Loan and Mezzanine Loan to approve the Subsidiaries’ assumption of the Loan, (iiiii) the Members shall be obligated to fund their respective initial capital contributions set forth in accordance with this Section 3.01. In the event If a Member fails to fund the portion full amount of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to in accordance with this Section 3.01(a) or (b), as applicable, 3.01 or otherwise refuses to allow the Property Owner Subsidiary Subsidiaries to close the Property Closing and assumption of the Loan under the Purchase Agreement in violation of this Agreement or the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement, then in addition additional to any other remedy set forth in this Agreement, the non-defaulting Member shall have the unilateral authority and without the consent of the defaulting Member to cause the Company and the Property Owner Subsidiary Subsidiaries to close the Property ClosingClosing and assumption of the Loan pursuant to the Purchase Agreement, in which event the defaulting Member shall be no longer be a Member of the Company and shall receive no return of its capital to the extent such defaulting Member had previously funded any part of its capital under this Section 3.01. In the event a Member fails to fund the portion full amount of its initial capital contribution required to be funded at or prior to the Property Closing pursuant to in this Section 3.01(a) or (b), as applicable, 3.01 or otherwise refuses to allow the Property Owner Subsidiary Subsidiaries to close the Property Closing or the assumption of the Loan under the Purchase Agreement in violation of this Agreement or the Purchase Agreement and such failure to fund or close results in or would result in a default under the Purchase Agreement and the non-defaulting member elects not to close the Property Closing, the defaulting Member shall be liable for the non-defaulting Member’s share of the Purchase Deposit that is not returned to the non-defaulting Member and for all costs and expenses incurred by such non-defaulting Member incurred in connection with this Agreement and the ProjectProperty, including all costs to negotiate this Agreement, to the extent such costs and expenses have not previously been reimbursed to such non-defaulting Member (the lost Purchase Deposit and such costs and expenses, collectively, the “Reimbursable Expenses”). The defaulting Member shall pay to the non-defaulting Member such reimbursement within ten (10) days of the non-defaulting Member’s written request therefor, which request shall reasonably substantiate the costs and expenses Reimbursable Expenses incurred. If the defaulting Member is (i) KBS Member then KBS SOR US Properties II Properties, LLC (the “KBS Credit Party”) shall guaranty the payment of the Reimbursable Expenses incurred by JV Member, or (ii) JV Member then KEK Family HoldingsSavanna Real Estate Fund III, LLC, a Delaware limited liability SMRH:479102057.10 22 company L.P. (the “JV Member Savanna Credit Party”) shall guaranty the Reimbursable Expenses incurred by KBS MemberKBS. Except as provided in Section 1.05 above, if If the Property Closing does not otherwise occur and the Purchase Deposit is returned to the Property Owner Subsidiary, then the Company shall be dissolved pursuant to Article VIII.