Common use of Non-Satisfaction of Conditions Clause in Contracts

Non-Satisfaction of Conditions. (a) In the event any conditions set forth in Sections 4.1 and 4.2 are not satisfied or waived as therein provided on or before the applicable date or time referred to in Section 4.1 or 4.2, as the case may be (such condition being referred to as the “Unsatisfied Condition”), the Closing Date shall be automatically extended for a period of sixty (60) days to allow for the satisfaction of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, be terminated and both parties hereto shall be released from all of their liabilities and obligations under this Agreement (other than those obligations which are expressly stated to survive termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreement, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser. (b) If, on the Closing Date, all of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in default under any provision of this Agreement and the Vendor is in default under any provision of this Agreement then the Purchaser, at its option, may elect either (i) if there has been a Material Value Reduction, to terminate this Agreement by Notice to the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor with respect to the Vendor’s default. In the event of a termination of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b). (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement.

Non-Satisfaction of Conditions. (a) In No waiver of the event whole or any part of any condition shall operate as a waiver of any condition or part of a condition not expressly waived. (b) If any of Smart’s conditions set forth out in Sections 4.1 and 4.2 are Section 6.1 or SmartStop’s conditions set out in Section 6.2 respectively have not been satisfied or waived as therein provided on or before the applicable Closing (or such earlier date or time referred to in Section 4.1 or 4.2, as the case may be (such condition being referred to as the “Unsatisfied Condition”specified), the Closing Date shall be automatically extended for a period then upon notice of sixty (60) days to allow for the satisfaction of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice termination given by the party Party having the benefit of the Unsatisfied Condition unsatisfied condition to the other partyParty, this Agreement shall terminate without any further action by either Party and, subject to Section 6.3(c), the Deposit together with all interest earned thereon shall be terminated immediately refunded without deduction or set off to SmartStop and both parties hereto the Parties shall be released from all of their liabilities and obligations under this Agreement (other than those obligations which are expressly stated to survive termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreement, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser). (bc) If, on Notwithstanding any provision in this Agreement to the Closing Date, all contrary: (i) if the condition was not satisfied solely because of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in a default under any provision of this Agreement and the Vendor is in default under any provision of this Agreement then the Purchaser, at its option, may elect either (i) if there has been a Material Value Reduction, to terminate this Agreement by Notice to the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor with respect to the Vendor’s default. In the event of a termination of this Agreement under this Section 4.3(b)SmartStop, the Deposit, together with all interest earned thereon thereon, shall be returned forfeited and paid to Purchaser without prejudice Smart in accordance with Section 5.2(d) in full and final satisfaction of any claim, right, remedy or recourse Smart may have against SmartStop by reason of such default; and (ii) if the condition was not satisfied solely because of a default under any provision of this Agreement by Smart, the Deposit, together with all interest earned thereon, shall be refunded to SmartStop, and SmartStop shall have the right, in addition to the Purchaser’s right refund of such Deposit and accrued interest, to bring claim damages against Smart in respect of such default of Smart, provided that maximum aggregate liability of Smart and the Nominee in respect thereof will be limited to an action for damages caused by amount equal to One Hundred and Fifty Thousand Dollars ($150,000.00). SmartStop shall not have any other rights, remedies or Claims against Smart or in respect of the Lands or Contributed Property as a Material Value Reduction under result of such default of Smart, either at law or in equity, other than those rights and remedies set out in this Section 4.3(b). (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages.6.3(c)(ii): (d) The provisions If at any time prior to Closing SmartStop obtains knowledge of an instrument, circumstance, action, omission, matter or issue which causes any of the Smart Parties to be in breach of any obligation under this Agreement and nevertheless the Closing occurs, SmartStop shall be deemed to have waived such breach and SmartStop shall have no Claim against the Smart Parties in respect thereof. (e) If at any time prior to Closing Smart obtains knowledge of an instrument, circumstance, action, omission, matter or issue which causes any of the SmartStop Parties to be in breach of any obligation under this Agreement and nevertheless the Closing occurs, Smart shall be deemed to have waived such breach and Smart shall have no Claim against the SmartStop Parties in respect thereof. (f) Each of the Parties shall promptly notify the other Party if, at any time before Closing, it becomes aware of: (i) anything that causes any of the representations or warranties of such other Party set out herein to be untrue or inaccurate; and (ii) any breach of any covenant, term or condition of such other Party set out in this Agreement. (g) This Section 4.3 6.3 shall survive the termination of this Agreement.

Non-Satisfaction of Conditions. So long as a party is not in default hereunder, if any condition to such party’s obligation to proceed with the Closing hereunder (a “Closing Condition”) has not been satisfied as of the Closing Date (or such earlier date as is provided herein), such party may, as its sole remedies and recourses (except as provided in the last sentence of this Section 7.3.3 if the other party is in default), either (a) In terminate this Agreement by delivering written notice to the event any conditions set forth in Sections 4.1 and 4.2 are not satisfied or waived as therein provided other party on or before the applicable date or time referred to in Section 4.1 or 4.2, as the case may be (such condition being referred to as the “Unsatisfied Condition”), the Closing Date shall be automatically extended for a period of sixty (60or such earlier date as is provided herein) days to allow for the satisfaction of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, be terminated and both parties hereto shall be released from all of their liabilities and obligations under this Agreement Exxxxxx Money (other than those obligations which are expressly stated the Non-Refundable Exxxxxx Money) shall be disbursed to survive the terminating party in accordance with this Agreement and the Non-Refundable Exxxxxx Money shall be disbursed to Seller, or (b) elect to close (or to permit any such earlier termination deadline to pass) notwithstanding the non-satisfaction of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreementsuch Closing Condition, in which caseevent such party shall be deemed to have waived such Closing Condition. In the event such party elects to close (or to permit any such earlier termination deadline to pass), subject notwithstanding the non-satisfaction of such Closing Condition, such party shall be deemed to the other relevant provisions of this Agreement, a Claim may be made against the Vendorhave waived such Closing Condition, and the Deposit, together with all interest earned thereon there shall be returned to Purchaser without prejudice to all no liability on the part of any other rights party hereto for breaches of representations and remedies warranties of which the Purchaser may have against party electing to close had knowledge at the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser. (b) If, on the Closing Date, all of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in default under Closing. Notwithstanding any provision of this Agreement and Section to the Vendor contrary, if the Closing Condition set forth in either Section 7.3.1(b) or 7.3.2(b) is not satisfied, or if a party is otherwise in default under any provision hereunder at or prior to Closing, the provisions of Article 10 of this Agreement then (including the Purchaser, at its option, may elect either (iapplicable notice and cure periods set forth therein) if there has been a Material Value Reduction, to terminate this Agreement by Notice to shall govern the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against rights and remedies of the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor parties hereunder with respect to the Vendor’s such default. In the event of a termination of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b). (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement.

Non-Satisfaction of Conditions. (a) In the event a. If any conditions condition precedent to Buyer’s obligations set forth in Sections 4.1 and 4.2 are Section 3.4 is not satisfied or waived as therein provided on or before of the applicable date or time referred to in Section 4.1 or 4.2Closing, Buyer will have the right, as the case may be its sole and exclusive remedies, to (such condition being referred to as the “Unsatisfied Condition”), i) extend the Closing Date shall be automatically extended for a reasonable period of sixty time (60not to exceed fifteen (15) days days) to allow for the satisfaction Seller to satisfy any condition that is reasonably capable of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, be terminated and both parties hereto shall be released from all of their liabilities and obligations under this Agreement (other than those obligations which are expressly stated to survive termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreement, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser. (b) If, on the Closing Date, all of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in default under any provision of this Agreement and the Vendor is in default under any provision of this Agreement then the Purchaser, at its option, may elect either (i) if there has been a Material Value Reduction, to terminate this Agreement by Notice to the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the VendorSeller, or (ii) to proceed to Closing (or require specific performance) of terminate this Agreement andAgreement, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against whereupon the Vendor with respect to the Vendor’s default. In the event of a termination of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon Xxxxxxx Money shall be returned refunded to Purchaser without prejudice Buyer, and thereafter neither party shall have any further obligations hereunder except those expressly stated to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b). (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement, or (iii) waive such non-satisfaction and proceed forward to Closing. If any such non-satisfaction is the result of a breach of an obligation of Seller or a representation made by Seller under this Agreement, Buyer will also be entitled to exercise the remedies set forth in Section 5.1 hereof. Notwithstanding anything contained herein to the contrary, Buyer shall not be required to fund the balance of the Purchase Price in order to enforce its rights under this Agreement. b. If any condition precedent to Seller’s obligations set forth in Section 3.4 is not satisfied as of the Closing, Seller will have the right to terminate this Agreement or waive such non-satisfaction and proceed forward to Closing. If any such non-satisfaction is the result of a breach of an obligation of Buyer under this Agreement, Seller will also be entitled to exercise the remedies set forth in Section 5.2 hereof.

Non-Satisfaction of Conditions. (a) In the event the Due Diligence Condition is not satisfied or waived by the Purchaser by Notice to the Vendor in writing on or before the Due Diligence Date, this Agreement shall be null and void and all of the obligations of the Parties provided for herein shall be at an end (except those which are to survive termination pursuant to this Agreement), and the First Deposit, together with accrued interest shall, subject to Section 4.2(b), be immediately returned to the Purchaser. Should the Purchaser provide Notice of the satisfaction or waiver of the Due Diligence Condition, it shall be deemed to have agreed to proceed with the purchase of the Purchased Assets subject to the provisions of this Agreement, and shall pay the Second Deposit within two (2) Business Days as provided in Section 3.1(b). (b) In the event any of the conditions set forth outlined in Sections 4.1 and 4.2 5.1 to 5.2 inclusive (other than the Due Diligence Condition) are not satisfied or waived as therein provided on or before the applicable date or time referred to in Section 4.1 or 4.2therein, as the case may be (such condition being referred to as the “Unsatisfied Condition”), the Closing Date shall be automatically extended for a period of sixty (60) days to allow for the satisfaction of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party Party having the benefit of the Unsatisfied Condition to the other partyParty, be terminated and both parties hereto the Deposit and interest accrued thereon shall be dealt with in the manner set forth in Section 3.2 and the Parties shall be released from all of their liabilities and obligations under this Agreement hereunder (other than except those obligations which are expressly stated to survive termination of pursuant this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto Party of an obligation under this Agreement, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser. (b) If, on the Closing Date, all of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in default under any provision of this Agreement and the Vendor is in default under any provision of this Agreement then the Purchaser, at its option, may elect either (i) if there has been a Material Value Reduction, to terminate this Agreement by Notice to the Vendor andsuch Party, subject to the limitations set forth in Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor with respect to the Vendor’s default. In the event of a termination of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b)3.2. (c) Notwithstanding If by the foregoingapplicable date or time referred to in Section 5.1 or 5.2 the Party having the benefit of the condition to be satisfied by such date or time has not given Notice to the other Party that the condition has been waived or satisfied, such condition shall be deemed not to have been waived or satisfied, unless in the case of any condition to be satisfied by Closing, the Purchaser Party shall have proceeded to close the Transaction, in which event all such conditions shall be deemed to have been waived or satisfied without affecting liability of the Parties for misrepresentations of representations under Sections 6.1 and 6.2 that the affected Party does not be entitled to claim from the Vendor indirect, consequential, punitive or special damagesdiscover until after Closing. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement.

Non-Satisfaction of Conditions. (a) In the event any conditions set forth in Sections 4.1 and 4.2 are not satisfied or waived as therein provided If on or before the applicable date or time referred to in Section 4.1 4.1, 4.2 or 4.24.3, as the case may be be, the party having the benefit of a condition in Section 4.1, 4.2 or 4.3 delivers Notice to the other party that a condition in Section 4.1, 4.2 or 4.3, as the case may be, is not satisfied or waived (such condition being referred to as the “Unsatisfied Condition”), the Closing Date shall be automatically extended for a period of sixty (60) days to allow for the satisfaction of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, shall be terminated and both parties hereto shall be released from all of their liabilities and obligations under this Agreement (other than those the obligations which are expressly stated in this Agreement to survive the termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is a default of a party hereto, the breach by a party hereto of an obligation under this AgreementAgreement or a representation or warranty made by a party hereto being materially untrue or incorrect, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon case Section 3.1(c) shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchasergovern. (b) If: (X) the Purchaser receives Notice from the Vendor or any of its Representatives before Closing of an event, on instrument, circumstance, action, omission, matter or issue which causes the Vendor to be unable to satisfy or fulfill the conditions set out in Section 4.2(a) or 4.2(c); or (Y) the Vendor’s Closing Date, all Certificate sets out any exception or qualification to any of the Vendor’s Representations and Warranties, then: (i) if the Purchaser delivers Notice to the Vendor that it is satisfied with or waives the conditions set out in Section 4.1 4.2(b) or 4.2(c) on or before Closing or the Purchaser fails to deliver Notice to the Vendor as to whether any of such conditions have been satisfied or waived and Closing occurs, then the Purchaser is not in default under any provision of this Agreement shall be deemed to have waived such breach and the Vendor is in default under any provision of this Agreement then the Purchaser, at its option, may elect either (i) if there has been a Material Value Reduction, to terminate this Agreement by Notice to the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages shall have no Claim against the Vendor with respect to such breach, the Vendor shall have no liabilities of any nature whatsoever in respect of or relating to the event, instrument, circumstance, action, omission, matter or issue disclosed in the Notice or in the Vendor’s default. In Closing Certificate, as the event of a termination of case may be, and the Vendor’s Representations and Warranties shall be deemed to have been amended to fully set out such specific exception or qualification or such event, instrument, circumstance, action, omission, matter or issue; and (ii) if the Purchaser delivers Notice to the Vendor on or before the Closing Date that the relevant condition in Section 4.2(b) or 4.2(c) is not satisfied or waived, then this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned terminated (other than the obligations which are stated in this Agreement to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b). (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement) and the provisions of Sections 3.1(c) and 4.4(a) shall govern. (c) Any condition that is required to be satisfied on or before the Closing Date shall be deemed to have been satisfied if the Closing occurs.

Non-Satisfaction of Conditions. If any condition to such party’s obligation to proceed with the Closing hereunder (a “Closing Condition”) has not been satisfied as of the Closing Date (or such earlier date as is provided herein), such party may, as its sole remedies and recourses (except as provided in the last sentence of this Section 7.2.3 if the other party is in default), either (a) In terminate this Agreement by delivering written notice to the event any conditions set forth in Sections 4.1 and 4.2 are not satisfied or waived as therein provided other party on or before the applicable Closing Date (or such earlier date or time referred as is provided herein) and the Xxxxxxx Money shall be disbursed to the Purchaser (except as provided in Section 4.1 or 4.2, as the case may be (such condition being referred to as the “Unsatisfied Condition”Article 10), or (b) elect to close (or to permit any such earlier termination deadline to pass) notwithstanding the Closing Date shall be automatically extended for a period of sixty (60) days to allow for the non-satisfaction of any Unsatisfied such Closing Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, be terminated and both parties hereto shall be released from all of their liabilities and obligations under this Agreement (other than those obligations which are expressly stated to survive termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreement, in which caseevent such party shall be deemed to have waived such Closing Condition. In the event such party elects to close (or to permit any such earlier termination deadline to pass), subject notwithstanding the non-satisfaction of such Closing Condition, such party shall be deemed to the other relevant provisions of this Agreement, a Claim may be made against the Vendorhave waived such Closing Condition, and the Deposit, together with all interest earned thereon there shall be returned to Purchaser without prejudice to all no liability on the part of any other rights party hereto for breaches of representations and remedies warranties of which the Purchaser may have against party electing to close had knowledge at the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser. (b) If, on the Closing Date, all of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in default under Closing. Notwithstanding any provision of this Agreement and Section to the Vendor contrary, if the Closing Condition set forth in either Section 7.2.1(b) or 7.2.2(b) is not satisfied, or if a party is otherwise in default under any provision hereunder at or prior to Closing, the provisions of Article 10 of this Agreement then (including the Purchaser, at its option, may elect either (iapplicable notice and cure periods set forth therein) if there has been a Material Value Reduction, to terminate this Agreement by Notice to shall govern the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against rights and remedies of the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor parties hereunder with respect to the Vendor’s such default. In the event of a termination of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b). (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement.

Non-Satisfaction of Conditions. (a) In the event that the Disbursement Agent determines that any condition of (x) Section 4.2.2 described above is not satisfied in respect of any Construction Disbursement Request or (y) Sections 4.2.2(b) through (e) described above is not satisfied in respect of any Construction Reserve Disbursement Request in the form of EXHIBIT E-1 and so long as any such condition is not satisfied, the Disbursement Agent shall not authorize any disbursement of funds from the Construction Disbursement Account or Construction Reserve Account, as applicable, pursuant to a Disbursement Request; PROVIDED, HOWEVER, that (notwithstanding the provisions of Sections 2.8 and 3.2) if all applicable conditions set forth in Section 4.2.2 other than clauses (e) and (f) thereof have been met, the Disbursement Agent shall make distributions directly to the Design Build Contractor in an amount equal to the amount due and payable under the Design Build Contract for work completed prior to the date of such Event of Default; PROVIDED FURTHER, that the following payments may be made by the Disbursement Agent (notwithstanding the provisions of Sections 4.1 2.8 and 4.2 are not satisfied or waived as therein provided on or before 3.2) if all applicable conditions set forth in Section 4.2.2 other than clause (e) thereof have been met: (a) with the applicable date or time referred to consent of the Trustee, if all other conditions in Section 4.1 hereof are met, payments for work completed or 4.2materials purchased on or prior to the date that the Disbursement Agent determined that condition (e) of Section 4.2.2 was not satisfied and has so notified the Issuer in writing, PROVIDED such payment has been approved by the Independent Construction Consultant; (b) with the consent of the Trustee (i) payments not to exceed $5,000,000 in the aggregate to prevent the condition of the Resort from deteriorating or to preserve any work completed as certified in writing to the case may Disbursement Agent and if the Trustee to be reasonably necessary or advisable by the Issuer and the Independent Construction Consultant and (ii) if the Trustee determines it is in the best interest of the holders of the Notes to continue construction to the final completion of the Project, other payments required to complete the Project; and (c) with the consent of the Trustee, if such condition being referred to as the “Unsatisfied Condition”), the Closing Date shall be automatically extended continues for a period of sixty three (603) days to allow consecutive months or more, at the written request of the Issuer, Retainage Amounts for the satisfaction portion of any Unsatisfied Condition. If the Closing Date is extended Resort completed, PROVIDED that the Issuer and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated Independent Construction Consultant each certifies in writing to the fifth (5th) Business Day following Disbursement Agent and the Trustee the amount required to be paid for such a waiver or satisfaction. If any Retainage Amounts and that the conditions for paying such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, be terminated and both parties hereto shall be released from all of their liabilities and obligations under this Agreement Retainage Amounts (other than those obligations which are expressly stated to survive termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreement, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaser. (b) If, on the Closing Date, all completion of the conditions in Section 4.1 have been satisfied or waived and the Purchaser is not in default under any provision of this Agreement and the Vendor is in default under any provision of this Agreement then the Purchaser, at its option, may elect either (iResort) if there has been a Material Value Reduction, to terminate this Agreement by Notice to the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor, or (ii) to proceed to Closing (or require specific performance) of this Agreement and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor with respect to the Vendor’s default. In the event of a termination of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b)are met. (c) Notwithstanding the foregoing, the Purchaser shall not be entitled to claim from the Vendor indirect, consequential, punitive or special damages. (d) The provisions of this Section 4.3 shall survive the termination of this Agreement.

Non-Satisfaction of Conditions. (a) In the event any conditions set forth in Sections 4.1 and 4.2 are not satisfied or waived as therein provided on or before the applicable date or time referred to in Section 4.1 or Section 4.2, as the case may be (such condition being referred to as the “Unsatisfied Condition”), the Closing Date shall be automatically extended for a period of sixty (60) days to allow for the satisfaction of any Unsatisfied Condition. If the Closing Date is extended and the condition subsequently satisfied or waived, then the Closing Date shall be automatically accelerated to the fifth (5th) Business Day following such a waiver or satisfaction. If any such condition remains unsatisfied after such sixty (60) day period, this Agreement shall, upon Notice by the party having the benefit of the Unsatisfied Condition to the other party, and subject to Section 6.3(c), as applicable, be terminated terminated, the Deposit and all interest earned thereon shall be returned to Purchaser, and both parties hereto shall be released from all of their liabilities and obligations under this Agreement (other than those obligations which are expressly stated to survive termination of this Agreement) unless the sole reason for the Unsatisfied Condition not being satisfied is the breach by a party hereto of an obligation under this Agreement, in which case, subject to the other relevant provisions of this Agreement, a Claim may be made against the Vendor, and the Deposit, together with all interest earned thereon provisions of Section 8.24 shall be returned to Purchaser without prejudice to all other rights and remedies which the Purchaser may have against the Vendor at law or in equity, in the case of breach by the Vendor; or the Deposit shall be forfeited, in the case of breach by the Purchaserapply. (b) If, on the Closing Date, all of the conditions in Section 4.1 have been satisfied or waived (other than those not satisfied solely due to the default of the Vendor) and the Purchaser is not in default under any provision of this Agreement and one or more of the Vendor is conditions in default under any provision of this Agreement Section 4.2 has not been fulfilled, then the Purchaser, at its option, may elect either (i) if there has been a Material Value Reduction, to terminate this Agreement by Notice notice in writing to the Vendor and, subject to Section 6.3 and, if applicable, Section 6.5, bring an action (in which event the Purchaser waives any other claim for damages or remedy against the Vendor, Purchaser) or (ii) to proceed to Closing (or require specific performance) of this Agreement andAgreement, subject to in which event the Purchaser shall have the remedies set out in Section 6.3 and, if applicable, Section 6.5, bring an action for damages against the Vendor with respect to the Vendor’s default. In the event of a termination 8.24 of this Agreement under this Section 4.3(b), the Deposit, together with all interest earned thereon shall be returned to Purchaser without prejudice to the Purchaser’s right to bring an action for damages caused by any a Material Value Reduction under this Section 4.3(b)Agreement. (c) Notwithstanding any other provisions of this Agreement, if by the foregoingapplicable time or date referred to in Section 4.1 or Section 4.2, as the case may be, the Purchaser party having the benefit of any given condition has not given notice to the other party that such condition has been waived or satisfied, such condition shall be deemed not to have been waived or satisfied. (d) Notwithstanding any other provisions of this agreement, neither party shall be entitled to claim from the Vendor other indirect, consequential, aggravated, punitive or special damages. (de) The provisions of this Section 4.3 shall survive the termination of this Agreement.