Common use of Failure to Satisfy Certain Closing Conditions; Monetary Liens Clause in Contracts

Failure to Satisfy Certain Closing Conditions; Monetary Liens. On or prior to the Close of Escrow, Seller shall be obligated (i) to cause to be insured over or removed of record all Monetary Liens affecting the Seller's interest in the Real Property as of the date hereof; and (ii) to remove or to bond over any Monetary Lien arising after the issuance of the Preliminary Title Report which (a) was created by or with the consent of Seller, or (b) is in an amount less than or equal to the Deposit. In the event that any Monetary Lien not reflected on the Preliminary Title Report exceeds the Deposit and was not created by or with the consent of Seller or any other title defect or other matters arise which requires Seller to supplement its disclosure pursuant to SECTION 6.7 and which in the aggregate may create a diminution in value to the Property in excess of the Deposit, and/or the Ground Lease Estoppel has not been obtained on or prior to the Closing Date in the form required pursuant to SECTION 9.1.4. (i) the Deposit shall be refunded by Escrow Holder to Buyer on February 28, 1998 if the Closing does not occur by such date in accordance with the provisions hereof; (ii) the Scheduled Closing Date shall be extended and Seller shall use all reasonable efforts, to remove or bond over or otherwise cause the Title Company to omit such Monetary Lien as an exception from coverage under the Title Policy and/or remove or cure as applicable such other defect or condition or obtain the Ground Lease Estoppel as applicable; and (iii) Buyer shall be permitted to record the Memorandum of Contract in the real property records of the state and county in which the Real Property is located. In the event that the Scheduled Closing Date is so extended and Seller is able to remove or cure such Monetary Lien, remove or cure as applicable the title defect or other condition and/or the Ground Lease Estoppel is delivered as is required, a consent to the transfer of the Ground Lease is obtained in form reasonably acceptable to Buyer and Seller or a judicial determination that no default exists is obtained as provided below, the Close of Escrow shall occur as soon as practicable following such removal, cure, or delivery with time being of the essence as to the performance of both Buyer's and Seller's obligations hereunder. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES WILL NOT BE AN ADEQUATE REMEDY TO SELLER IF BUYER SHALL DEFAULT IN ITS OBLIGATION 36 44 TO CLOSE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND CONSEQUENTLY THAT BUYER'S OBLIGATIONS UNDER THIS SECTION 7.1.1 SHALL BE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST. IN CONSIDERATION FOR THE REFUND TO BUYER OF THE DEPOSIT PROVIDED FOR UNDER THIS SECTION 7.1.1, THE RIGHT OF BUYER TO RECORD THE MEMORANDUM OF CONTRACT PURSUANT TO THIS SECTION 7.1.1, SELLER'S AGREEMENT TO ENTER INTO THE INTERIM MANAGEMENT AGREEMENT PURSUANT TO THE PROVISIONS OF THIS SECTION 17.20 (UNDER WHICH AGREEMENT THE VALUE OF THE HOTEL MAY BE AFFECTED BY THE PERFORMANCE BY THE MANAGER OF ITS RESPONSIBILITIES THEREUNDER) AND TO ENCUMBER THE PROPERTY WITH THIS AGREEMENT FOR A PERIOD OF UP TO FIVE (5) YEARS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND IN LIGHT OF THE RISKS WHICH SELLER WILL BE ASSUMING AS A RESULT IN RELATION TO THE VALUE OF THE EQUITY PURCHASE PRICE TO BE DELIVERED IF AND WHEN THE CLOSING OCCURS HEREUNDER, THE PARTIES HAVE AGREED THAT THE PROVISIONS OF THIS SECTION 7.1.1 ARE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST AS AND TO THE EXTENT PROVIDED IN THE PRECEDING SENTENCE. In the event that a Monetary Lien cannot be removed or cured or a title defect or other condition cannot be removed or cured as required hereunder to close within five (5) years of the date of this Agreement, this Agreement shall terminate and the parties hereto shall have no further obligations. In the event that the Ground Lease Estoppel is not obtained by April 15, 1998, then, in such event, Seller shall, upon written request of Buyer at any time thereafter, at its expense and with the full cooperation and support of Buyer at its expense, commence and prosecute to completion a lawsuit against lessor under the Ground Lease to obtain the delivery of the Ground Lease Estoppel or, in the alternative, a consent to the transfer of the Ground Lease in form reasonably acceptable to Buyer or a judicial determination that no default then exists under the Ground Lease and the Scheduled Closing Date shall be extended until such time as such Ground Lease Estoppel is obtained, a consent is given or a judicial determination is so made. (The satisfaction of one or more of the foregoing conditions being referred to herein as the "Ground Lease Transfer Requirement").

Failure to Satisfy Certain Closing Conditions; Monetary Liens. On or prior to the Close of Escrow, Seller shall be obligated (i) to cause to be insured over or removed of record all Monetary Liens affecting the Seller's interest in the Real Property as of the date hereof; and (ii) to remove or to bond over any Monetary Lien arising after the issuance of the Preliminary Title Report which (a) was created by or with the consent of Seller, or (b) is in an amount less than or equal to the Deposit. In the event that any Monetary Lien not reflected on the Preliminary Title Report exceeds the Deposit and was not created by or with the consent of Seller or any other title defect or other matters arise which requires Seller to supplement its disclosure pursuant to SECTION Section 6.7 and which in the aggregate may create a diminution in value to the Property in excess of the Deposit, and/or the Ground Lease Estoppel has not been obtained on or prior to the Closing Date in the form required pursuant to SECTION 9.1.4. (i) the Deposit shall be refunded by Escrow Holder to Buyer on February 28, 1998 if the Closing does not occur by such date in accordance with the provisions hereof; (ii) the Scheduled Closing Date shall be extended and Seller shall use all reasonable efforts, to remove or bond over or otherwise cause the Title Company to omit such Monetary Lien as an exception from coverage under the Title Policy and/or remove or cure as applicable such other defect or condition or obtain the Ground Lease Estoppel as applicable; and (iii) Buyer shall be permitted to record the Memorandum of Contract in the real property records of the state and county in which the Real Property is located. In the event that the Scheduled Closing Date is so extended and Seller is able to remove or cure such Monetary Lien, remove or cure as applicable the title defect or other condition and/or the Ground Lease Estoppel is delivered as is required, a consent to the transfer of the Ground Lease is obtained in form reasonably acceptable to Buyer and Seller or a judicial determination that no default exists is obtained as provided belowcondition, the Close of Escrow shall occur as soon as practicable following such removal, cure, removal or delivery cure with time being of the essence as to the performance of both Buyer's and Seller's obligations hereunder. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES WILL NOT BE AN ADEQUATE REMEDY TO SELLER IF BUYER SHALL DEFAULT IN ITS OBLIGATION 36 44 TO CLOSE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND CONSEQUENTLY THAT BUYER'S OBLIGATIONS UNDER THIS SECTION 7.1.1 SHALL BE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST. IN CONSIDERATION FOR THE REFUND TO BUYER OF THE DEPOSIT PROVIDED FOR UNDER THIS SECTION 7.1.1, THE RIGHT OF BUYER TO RECORD THE MEMORANDUM OF CONTRACT PURSUANT TO THIS SECTION 7.1.1, SELLER'S AGREEMENT TO ENTER INTO THE INTERIM MANAGEMENT AGREEMENT PURSUANT TO THE PROVISIONS OF THIS SECTION 17.20 (UNDER WHICH AGREEMENT THE VALUE OF THE HOTEL MAY BE AFFECTED BY THE PERFORMANCE BY THE MANAGER OF ITS RESPONSIBILITIES THEREUNDER) AND TO ENCUMBER THE PROPERTY WITH THIS AGREEMENT FOR A PERIOD OF UP TO FIVE (5) YEARS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND IN LIGHT OF THE RISKS WHICH SELLER WILL BE ASSUMING AS A RESULT IN RELATION TO THE VALUE OF THE EQUITY PURCHASE PRICE TO BE DELIVERED IF AND WHEN THE CLOSING OCCURS HEREUNDER, THE PARTIES HAVE AGREED THAT THE PROVISIONS OF THIS SECTION 7.1.1 ARE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST AS AND TO THE EXTENT PROVIDED IN THE PRECEDING SENTENCE. In the event that a Monetary Lien cannot be removed or cured or a title defect or other condition cannot be removed or cured as required hereunder to close within five (5) years of the date of this Agreement, this Agreement shall terminate and the parties hereto shall have no further obligations. In the event that the Ground Lease Estoppel is not obtained by April 15, 1998, then, in such event, Seller shall, upon written request of Buyer at any time thereafter, at its expense and with the full cooperation and support of Buyer at its expense, commence and prosecute to completion a lawsuit against lessor under the Ground Lease to obtain the delivery of the Ground Lease Estoppel or, in the alternative, a consent to the transfer of the Ground Lease in form reasonably acceptable to Buyer or a judicial determination that no default then exists under the Ground Lease and the Scheduled Closing Date shall be extended until such time as such Ground Lease Estoppel is obtained, a consent is given or a judicial determination is so made. (The satisfaction of one or more of the foregoing conditions being referred to herein as the "Ground Lease Transfer Requirement").

Failure to Satisfy Certain Closing Conditions; Monetary Liens. On or prior to the Close of Escrow, Seller shall be obligated (i) to cause to be insured over or removed of record all Monetary Liens affecting the Seller's interest in the Real Property as of the date hereof; and (ii) to remove or to bond over any Monetary Lien arising after the issuance of the Preliminary Title Report which (a) was created by or with the consent of Seller, or (b) is in an amount less than or equal to the Deposit. In the event that any Monetary Lien not reflected on the Preliminary Title Report exceeds the Deposit and was not created by or with the consent of Seller or any other title defect or other matters arise which requires Seller to supplement its disclosure pursuant to SECTION 6.7 and which in the aggregate may create a diminution in value to the Property in excess of the Deposit, and/or the Ground Lease Estoppel has not been obtained on or prior to the Closing Date in the form required pursuant to SECTION 9.1.4. (i) the Deposit shall be refunded by Escrow Holder to Buyer on February 28, 1998 if the Closing does not occur by such date in accordance with the provisions hereof; (ii) the Scheduled Closing Date shall be extended and Seller shall use all reasonable efforts, to remove or bond over or otherwise cause the Title Company to omit such Monetary Lien as an exception from coverage under the Title Policy and/or remove or cure as applicable such other defect or condition or obtain the Ground Lease Estoppel as applicable; and (iii) Buyer shall be permitted to record the Memorandum of Contract in the real property records of the state and county in which the Real Property is located. In the event that the Scheduled Closing Date is so extended and Seller is able to remove or cure such Monetary Lien, remove or cure as applicable the title defect or other condition and/or the Ground Lease Estoppel is delivered as is required, a consent to the transfer of the Ground Lease is obtained in form reasonably acceptable to Buyer and Seller or a judicial determination that no default exists is obtained as provided below, the Close of Escrow shall occur as soon as practicable following such removal, cure, or delivery with time being of the essence as to the performance of both Buyer's and Seller's obligations hereunder. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES WILL NOT BE AN ADEQUATE REMEDY TO SELLER IF BUYER SHALL DEFAULT IN ITS OBLIGATION 36 44 TO CLOSE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND CONSEQUENTLY THAT BUYER'S OBLIGATIONS UNDER THIS SECTION 7.1.1 SHALL BE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST. IN CONSIDERATION FOR THE REFUND TO BUYER OF THE DEPOSIT PROVIDED FOR UNDER THIS SECTION 7.1.1, THE RIGHT OF BUYER TO RECORD THE MEMORANDUM OF CONTRACT PURSUANT TO THIS SECTION 7.1.1, SELLER'S AGREEMENT TO ENTER INTO THE INTERIM MANAGEMENT AGREEMENT PURSUANT TO THE PROVISIONS OF THIS SECTION 17.20 (UNDER WHICH AGREEMENT THE VALUE OF THE HOTEL MAY BE AFFECTED BY THE PERFORMANCE BY THE MANAGER OF ITS RESPONSIBILITIES THEREUNDER) AND TO ENCUMBER THE PROPERTY WITH THIS AGREEMENT FOR A PERIOD OF UP TO FIVE (5) YEARS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 31 AND IN LIGHT OF THE RISKS WHICH SELLER WILL BE ASSUMING AS A RESULT IN RELATION TO THE VALUE OF THE EQUITY PURCHASE PRICE TO BE DELIVERED IF AND WHEN THE CLOSING OCCURS HEREUNDER, THE PARTIES HAVE AGREED THAT THE PROVISIONS OF THIS SECTION 7.1.1 ARE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST AS AND TO THE EXTENT PROVIDED IN THE PRECEDING SENTENCE. In the event that a Monetary Lien cannot be removed or cured or a title defect or other condition cannot be removed or cured as required hereunder to close within five (5) years of the date of this Agreement, this Agreement shall terminate and the parties hereto shall have no further obligations. In the event that the Ground Lease Estoppel is not obtained by April 15, 1998, then, in such event, Seller shall, upon written request of Buyer at any time thereafter, at its expense and with the full cooperation and support of Buyer at its expense, commence and prosecute to completion a lawsuit against lessor under the Ground Lease to obtain the delivery of the Ground Lease Estoppel or, in the alternative, a consent to the transfer of the Ground Lease in form reasonably acceptable to Buyer or a judicial determination that no default then exists under the Ground Lease and the Scheduled Closing Date shall be extended until such time as such Ground Lease Estoppel is obtained, a consent is given or a judicial determination is so made. (The satisfaction of one or more of the foregoing conditions being referred to herein as the "Ground Lease Transfer Requirement").

Failure to Satisfy Certain Closing Conditions; Monetary Liens. On or prior to the Close of Escrow, Seller shall be obligated (i) to cause to be insured over or removed of record all Monetary Liens affecting the Seller's interest in the Real Property as of the date hereof; and (ii) to remove or to bond over any Monetary Lien arising after the issuance of the Preliminary Title Report which (a) was created by or with the consent of Seller, or (b) is in an amount less than or equal to the Deposit. In the event that any Monetary Lien not reflected on the Preliminary Title Report exceeds the Deposit and was not created by or with the consent of Seller or any other title defect or other matters arise which requires Seller to supplement its disclosure pursuant to SECTION 6.7 and which in the aggregate may create a diminution in value to the Property in excess of the Deposit, and/or the Ground Lease Estoppel has not been obtained on or prior to the Closing Date in the form required pursuant to SECTION 9.1.4. (i) the Deposit shall be refunded by Escrow Holder to Buyer on February 28, 1998 if the Closing does not occur by such date in accordance with the provisions hereof; (ii) the Scheduled Closing Date shall be extended and Seller shall use all reasonable efforts, to remove or bond over or otherwise cause the Title Company to omit such Monetary Lien as an exception from coverage under the Title Policy and/or remove or cure as applicable such other defect or condition or obtain the Ground Lease Estoppel as applicable; and (iii) Buyer shall be permitted to record the Memorandum of Contract in the real property records of the state and county in which the Real Property is located. In the event that the Scheduled Closing Date is so extended and Seller is able to remove or cure such Monetary Lien, remove or cure as applicable the title defect or other condition and/or the Ground Lease Estoppel is delivered as is required, a consent to the transfer of the Ground Lease is obtained in form reasonably acceptable to Buyer and Seller or a judicial determination that no default exists is obtained as provided below, the Close of Escrow shall occur as soon as practicable following such removal, cure, removal or delivery cure with time being of the essence as to the performance of both Buyer's and Seller's obligations hereunder. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES WILL NOT BE AN ADEQUATE REMEDY TO SELLER IF BUYER SHALL DEFAULT IN ITS OBLIGATION 36 44 TO CLOSE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND CONSEQUENTLY THAT BUYER'S OBLIGATIONS UNDER THIS SECTION 7.1.1 SHALL BE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST. IN CONSIDERATION FOR THE REFUND TO BUYER OF THE DEPOSIT PROVIDED FOR UNDER THIS SECTION 7.1.1, THE RIGHT OF BUYER TO RECORD THE MEMORANDUM OF CONTRACT PURSUANT TO THIS SECTION 7.1.1, SELLER'S AGREEMENT TO ENTER INTO THE INTERIM MANAGEMENT AGREEMENT PURSUANT TO THE PROVISIONS OF THIS SECTION 17.20 7.1.1 (UNDER WHICH AGREEMENT THE VALUE OF THE HOTEL MAY BE AFFECTED BY THE PERFORMANCE BY THE MANAGER OF ITS RESPONSIBILITIES THEREUNDER) AND TO ENCUMBER THE PROPERTY WITH THIS AGREEMENT FOR A PERIOD OF UP TO FIVE (5) YEARS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 17.20 AND IN LIGHT OF THE RISKS WHICH SELLER WILL BE ASSUMING AS A RESULT IN RELATION TO THE VALUE OF THE EQUITY PURCHASE PRICE TO BE DELIVERED IF AND WHEN THE CLOSING OCCURS HEREUNDER, THE PARTIES HAVE AGREED THAT THE PROVISIONS OF THIS SECTION 7.1.1 ARE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST AS AND TO THE EXTENT PROVIDED IN THE PRECEDING SENTENCE. In the event that a Monetary Lien cannot be removed or cured or a title defect or other condition cannot be removed or cured as required hereunder to close within five (5) years of the date of this Agreement, this Agreement shall terminate and the parties hereto shall have no further obligations. In the event that the Ground Lease Estoppel is not obtained by April 15, 1998, then, in such event, Seller shall, upon written request of Buyer at any time thereafter, at its expense and with the full cooperation and support of Buyer at its expense, commence and prosecute to completion a lawsuit against lessor under the Ground Lease to obtain the delivery of the Ground Lease Estoppel or, in the alternative, a consent to the transfer of the Ground Lease in form reasonably acceptable to Buyer or a judicial determination that no default then exists under the Ground Lease and the Scheduled Closing Date shall be extended until such time as such Ground Lease Estoppel is obtained, a consent is given or a judicial determination is so made. (The satisfaction of one or more of the foregoing conditions being referred to herein as the "Ground Lease Transfer Requirement").

Failure to Satisfy Certain Closing Conditions; Monetary Liens. On or prior to the Close of Escrow, Seller shall be obligated (i) to cause to be insured over or removed as matters of record all Monetary Liens affecting the Seller's interest in the Real Property as of the date hereof; and (ii) to remove or to bond over any Monetary Lien arising after the issuance of the Preliminary Title Report which (a) was created by or with the consent of Seller, or (b) is in an amount less than or equal to the Deposit. In the event that any Monetary Lien not reflected on the Preliminary Title Report exceeds the Deposit and was not created by or with the consent of Seller or any other title defect or other matters arise which requires Seller to supplement its disclosure pursuant to SECTION Section 6.7 and which in the aggregate may create a diminution in value to the Property in excess of the Deposit, and/or the Ground Lease Estoppel has not been obtained on or prior to the Closing Date in the form required pursuant to SECTION 9.1.4. : (i) the Deposit shall be refunded by Escrow Holder to Buyer on February 28, 1998 if the Closing does not occur by such date in accordance with the provisions hereof; (ii) the Scheduled Closing Date shall be extended and Seller shall use all reasonable efforts, to remove or bond over or otherwise cause the Title Company to omit such Monetary Lien as an exception from coverage under the Title Policy and/or remove or cure as applicable such other defect or condition or obtain the Ground Lease Estoppel as applicablecondition; and (iii) Buyer shall be permitted to record the Memorandum of Contract in the real property records of the state and county in which the Real Property is located. In the event that the Scheduled Closing Date is so extended and Seller is able to remove or cure such Monetary Lien, remove or cure as applicable the title defect or other condition and/or the Ground Lease Estoppel is delivered as is required, a consent to the transfer of the Ground Lease is obtained in form reasonably acceptable to Buyer and Seller or a judicial determination that no default exists is obtained as provided belowcondition, the Close of Escrow shall occur as soon as practicable following such removal, cure, removal or delivery cure with time being of the essence as to the performance of both Buyer's and Seller's obligations hereunder. THE PARTIES ACKNOWLEDGE AND AGREE THAT DAMAGES WILL NOT BE AN ADEQUATE REMEDY TO SELLER IF BUYER SHALL DEFAULT IN ITS OBLIGATION 36 44 TO CLOSE IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND CONSEQUENTLY THAT BUYER'S OBLIGATIONS UNDER THIS SECTION 7.1.1 SHALL BE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST. IN 37 45 CONSIDERATION FOR THE REFUND TO BUYER OF THE DEPOSIT PROVIDED FOR UNDER THIS SECTION 7.1.1, THE RIGHT OF BUYER TO RECORD THE MEMORANDUM OF CONTRACT PURSUANT TO THIS SECTION 7.1.1, SELLER'S AGREEMENT TO ENTER INTO THE INTERIM MANAGEMENT AGREEMENT PURSUANT TO THE PROVISIONS OF THIS SECTION 17.20 (UNDER WHICH AGREEMENT THE VALUE OF THE HOTEL MAY BE AFFECTED BY THE PERFORMANCE BY THE MANAGER OF ITS RESPONSIBILITIES THEREUNDER) AND TO ENCUMBER THE PROPERTY WITH THIS AGREEMENT FOR A PERIOD OF UP TO FIVE (5) YEARS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 7.1.1 AND IN LIGHT OF THE RISKS WHICH SELLER WILL BE ASSUMING AS A RESULT IN RELATION TO THE VALUE OF THE EQUITY PURCHASE PRICE TO BE DELIVERED IF AND WHEN THE CLOSING OCCURS HEREUNDER, THE PARTIES HAVE AGREED THAT THE PROVISIONS OF THIS SECTION 7.1.1 ARE SPECIFICALLY ENFORCEABLE AGAINST THE TRUST AS AND TO THE EXTENT PROVIDED IN THE PRECEDING SENTENCE. In the event that a Monetary Lien cannot be removed or cured or a title defect or other condition cannot be removed or cured as required hereunder to close within five (5) years of the date of this Agreement, this Agreement shall terminate and the parties hereto shall have no further obligations. In the event that the Ground Lease Estoppel is not obtained by April 15, 1998, then, in such event, Seller shall, upon written request of Buyer at any time thereafter, at its expense and with the full cooperation and support of Buyer at its expense, commence and prosecute to completion a lawsuit against lessor under the Ground Lease to obtain the delivery of the Ground Lease Estoppel or, in the alternative, a consent to the transfer of the Ground Lease in form reasonably acceptable to Buyer or a judicial determination that no default then exists under the Ground Lease and the Scheduled Closing Date shall be extended until such time as such Ground Lease Estoppel is obtained, a consent is given or a judicial determination is so made. (The satisfaction of one or more of the foregoing conditions being referred to herein as the "Ground Lease Transfer Requirement").