Common use of Pre-Closing Breaches Clause in Contracts

Pre-Closing Breaches. (a) Purchaser will promptly provide written notice (the "Pre-Closing Breach Notice") to Seller upon having knowledge of (i) any breach by Seller prior to Closing of its representations and warranties set forth in this Agreement (without giving effect to any materiality qualification), (ii) any breach by Seller of its covenants, (iii) failure to deliver any document required under Section 9.4(d) which is an Exhibit hereto or in the Disclosure Schedule (other than the lender estoppel certificates as provided for in Section 6.9, the certificates with respect to the Ground Leases as provided for in Section 6.10 and the certificates with respect to the REAs as provided for in Section 6.11) or any other document that Seller deliberately, intentionally and unreasonably fails to deliver and/or (iv) the occurrence of a Seller Material Adverse Event (with respect to item (iv) in the definition of Seller Material Adverse Event) (collectively, (but excluding in each case (x) matters constituting Material Title Defects or otherwise the subject of Section 3.4 (which are governed by Sections 3.4 and 10.3 for the failure to comply with Section 3.4) and (y) any matter related to the physical, structural and environmental condition (except a breach of Section 4.6) of the Properties (which are governed under Article 8) "Pre-Closing Breaches"). Such notice shall state Purchaser's Cure Value. If the aggregate amount of Purchaser's Cure Values attributable to Pre-Closing Breaches under all Sale Agreements is equal to or less than the Pre-Closing Threshold, as applicable, then Purchaser shall be required to proceed to Closing without any reduction in, abatement of or credit against the Purchase Price on account of the Pre-Closing Breaches, but the Pre-Closing Breaches shall be deemed to survive Closing and the Losses to Purchaser (or Losses that Purchaser would incur upon or after Closing) related thereto shall be subject to indemnification by Seller subject to the provisions of Article XI.

Pre-Closing Breaches. (a) Purchaser will promptly provide written notice (the "Pre-Closing Breach Notice") If prior to Seller upon having knowledge of Closing, (i) any it is discovered that Eldorado is in breach by Seller prior to Closing of its Eldorado’s representations and or warranties set forth in this Agreement (after giving effect to any amendment or modification of such representations or warranties which may be made by Eldorado pursuant to Section 7.3(e), if applicable, but without giving effect to any materiality qualificationqualifications as to “Eldorado’s Knowledge” (but giving effect to any qualifications as to the “Knowledge of Eldorado”) set forth in Eldorado’s Warranties), or (ii) without giving effect to any breach qualifications as to “Eldorado’s Knowledge” (but giving effect to any qualifications as to the “Knowledge of Eldorado”) set forth in Eldorado’s Warranties, any amendment or modification of the representations or warranties made by Seller of its covenantsEldorado pursuant to Section 7.3(e) would, (iii) failure to deliver any document required under Section 9.4(d) which is an Exhibit hereto individually or in the Disclosure Schedule aggregate, result in a Material Adverse Effect, then, in each case, Buyer’s sole remedy with respect thereto shall be to either (x) continue with the Closing, without any reduction of the Purchase Price or any credit or allowance on account thereof or any other than the lender estoppel certificates as provided for claim against Eldorado on account thereof, in Section 6.9, the certificates which case Eldorado shall not be liable to Buyer (and Buyer shall have no rights or remedies) with respect to the Ground Leases as provided for matter, condition or circumstance which was the basis of the applicable breach of, or amendment or modification to, such representation or warranty, notwithstanding anything in Section 6.10 and the certificates with respect this Agreement to the REAs as provided for in Section 6.11) contrary, or any other document that Seller deliberately, intentionally and unreasonably fails to deliver and/or (iv) the occurrence of a Seller Material Adverse Event (with respect to item (iv) in the definition of Seller Material Adverse Event) (collectively, (but excluding in each case (x) matters constituting Material Title Defects or otherwise the subject of Section 3.4 (which are governed by Sections 3.4 and 10.3 for the failure to comply with Section 3.4) and (y) any matter related terminate this Agreement (such termination right to be exercised, if at all, by written notice of such termination delivered by Buyer to Eldorado within ten (10) Business Days after (1) Buyer becoming aware of the applicable breach of the representation or warranty of Eldorado, or (2) Eldorado's written notice to Buyer of such amendment or modification to the physical, structural representations and environmental condition (except a breach warranties in accordance with the terms of Section 4.6) of the Properties (which are governed under Article 8) "Pre-Closing Breaches"7.3(e). Such notice shall state Purchaser's Cure Value. If the aggregate amount of Purchaser's Cure Values attributable to Pre-Closing Breaches under all Sale Agreements is equal to or less than the Pre-Closing Threshold, as applicable), then Purchaser whereupon following any such termination, neither party shall be required have any further rights or obligations hereunder except for obligations which expressly survive termination of this Agreement (and for the avoidance of doubt, Buyer shall have no right to proceed to Closing without any reduction in, abatement of or credit against receive the Purchase Price on account of the Pre-Closing Breaches, but the Pre-Closing Breaches shall be deemed to survive Closing and the Losses to Purchaser (or Losses that Purchaser would incur upon or after Closing) related thereto shall be subject to indemnification by Seller subject to the provisions of Article XIBuyer Liquidated Damages Amount).

Pre-Closing Breaches. (a) Purchaser will promptly provide written notice (may, but is not obligated to, send a Claim Notice to Company and the "Pre-Member Representative between the date hereof and the Closing that Purchaser has reason to believe that a Breach Notice") has occurred with respect to Seller upon having knowledge one or more of (i) the representations, warranties or covenants of the Company Control Group, or any breach by Seller prior to Closing member thereof, under this Agreement. Such Claim Notice shall describe in reasonable detail the alleged Breaches of its such representations and warranties set forth (all such alleged Breaches disclosed in this Agreement (without giving effect any such Claim Notice shall be collectively referred to any materiality qualification), (ii) any breach by Seller of its covenants, (iii) failure to deliver any document required under Section 9.4(d) which is an Exhibit hereto or in the Disclosure Schedule (other than the lender estoppel certificates as provided for in Section 6.9, the certificates with respect to the Ground Leases as provided for in Section 6.10 and the certificates with respect to the REAs as provided for in Section 6.11) or any other document that Seller deliberately, intentionally and unreasonably fails to deliver and/or (iv) the occurrence of a Seller Material Adverse Event (with respect to item (iv) in the definition of Seller Material Adverse Event) (collectively, (but excluding in each case (x) matters constituting Material Title Defects or otherwise the subject of Section 3.4 (which are governed by Sections 3.4 and 10.3 for the failure to comply with Section 3.4) and (y) any matter related to the physical, structural and environmental condition (except a breach of Section 4.6) of the Properties (which are governed under Article 8) "“Purchaser Identified Pre-Closing Breaches"”). Such notice Except for matters disclosed to Purchaser by Sellers pursuant to, and in accordance with, Section 5.17, and to which Purchaser has specifically consented, in writing, pursuant to Section 5.17, between the date of this Agreement and the Closing Date, Sellers will promptly notify Purchaser, in writing, if any Seller becomes aware of (a) any fact, matter or condition that causes or constitutes a Breach of any of the Company Control Group’s representations or warranties as of the date of this Agreement or (b) the occurrence after the date of this Agreement of any fact, matter or condition that would (except as expressly contemplated by this Agreement) cause or constitute a Breach of any such representation or warranty had such representation or warranty been made as of the time of the occurrence or discovery of such fact, matter or condition (all such alleged breaches disclosed to Purchaser shall state be collectively referred to as “Seller Identified Pre-Closing Breaches”). Subject to Section 9.2 regarding claims which survive the termination of this Agreement, if Closing occurs, Purchaser's Cure Value. If the aggregate amount of Purchaser's Cure Values attributable ’s indemnification claims with respect to all Purchaser Identified Pre-Closing Breaches under all Sale Agreements is equal to or less than the and Seller 72 Identified Pre-Closing ThresholdBreaches (collectively, as applicable, then Purchaser shall be required to proceed to Closing without any reduction in, abatement of or credit against the Purchase Price on account of the “Pre-Closing Breaches”) shall (i) survive the Closing, but without limitation as to time and (ii) be subject to the limitations of liability in Section 10.6 (if any) which are applicable to such Pre-Closing Breaches shall be deemed to survive Closing and the Losses to Purchaser (or Losses that Purchaser would incur upon or after Closing) related thereto shall be subject to indemnification by Seller subject to the provisions of Article XIBreaches.

Pre-Closing Breaches. (a) Purchaser Down REIT will promptly provide written notice (the "Pre-Closing Breach Notice") to Seller Hickory upon having knowledge of (i) any breach by Seller Hickory prior to Closing of its representations and warranties set forth in this Agreement (without giving effect to any materiality qualification), (ii) any breach by Seller Hickory of its covenants, (iii) failure to deliver any document required under Section 9.4(d) which is an Exhibit hereto or in the Disclosure Schedule (other than the lender estoppel certificates as provided for in Section 6.9, the certificates with respect to the Ground Leases as provided for in Section 6.10 and the certificates with respect to the REAs as provided for in Section 6.11) or any other document that Seller Hickory deliberately, intentionally and unreasonably fails to deliver and/or (iv) the occurrence of a Seller Hickory Material Adverse Event (with respect to item (iv) in the definition of Seller Hickory Material Adverse Event) (collectively, (but excluding in each case (x) matters constituting Material Title Defects or otherwise the subject of Section 3.4 (which are governed by Sections 3.4 and 10.3 for the failure to comply with Section 3.4) and (y) any matter related to the physical, structural and environmental condition (except a breach of Section 4.6) of the Properties (which are governed under Article 8) ("Pre-Closing Breaches"). Such notice shall state PurchaserDown REIT's Cure Value. If the aggregate amount of PurchaserDown REIT's Cure Values attributable to Pre-Closing Breaches under all Sale Agreements is equal to or less than the Pre-Closing Threshold, as applicable, then Purchaser Down REIT shall be required to proceed to Closing without any reduction in, abatement of or credit against the Purchase Price Consideration on account of the Pre-Closing Breaches, but the Pre-Closing Breaches shall be deemed to survive Closing and the Losses to Purchaser Down REIT (or Losses that Purchaser Down REIT would incur upon or after Closing) related thereto shall be subject to indemnification by Seller Hickory subject to the provisions of Article XI.

Pre-Closing Breaches. If, prior to Closing, a Party is in breach of this Agreement, and such breach is not cured within 10 days after receiving notice from the other Party, then non-breaching Party shall have the right to terminate this Agreement or seek specific performance as described below; provided, however, that termination shall not relieve a Party from any Liability (aas defined in the EPA) Purchaser will promptly provide written notice for any intentional, willful or fraudulent breach of this Agreement prior to such termination, which Liability shall survive the termination of this Agreement. The Parties agree that irreparable damage (for which monetary relief, even if available, would not be an adequate remedy) may occur in the "Pre-Closing Breach Notice") to Seller upon having knowledge event that any of the provisions of this Agreement were not performed by the Parties in accordance with their specific terms or were otherwise breached. It is accordingly agreed that in lieu of termination this Agreement (i) any breach by Seller prior the non-breaching Party shall be entitled to Closing seek an injunction or injunctions or other equitable relief or remedies to prevent breaches of its representations and warranties set forth in this Agreement (without giving effect and to enforce specifically the terms and provisions hereof in any materiality qualification)court of competent jurisdiction, and (ii) any breach by Seller the right of its covenants, (iii) failure to deliver any document required under Section 9.4(d) which specific performance and other equitable relief is an Exhibit hereto integral part of the transactions contemplated herein and without that right, neither the of the Parties would have entered into this Agreement. Each of the Parties agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity so long as the Party seeking specific performance has tendered its performance under this Agreement. Each of the Parties hereby waives any requirement under any law to post a bond or other security as a prerequisite to obtaining specific performance of other equitable relief. Notwithstanding anything to the contrary above, if a Party’s affiliate under the EPA has an election to terminate or pursue specific performance, the election of such Party’s affiliate under the EPA shall be the election of that Party hereunder; provided, however, that if the EPA has been terminated by Seller’s affiliate and Seller’s affiliate is receiving the Termination Fee (as defined in the Disclosure Schedule (other than the lender estoppel certificates as provided for in Section 6.9EPA), the certificates then Seller hereunder shall have no remedies with respect to the Ground Leases as provided for in Section 6.10 termination of this Agreement and Seller covenants and agrees that the certificates receipt by Seller’s affiliate of the Termination Fee is the sole and exclusive remedy of Seller or its affiliates with respect to the REAs as provided for in Section 6.11) termination of this Agreement or the EPA, or any other document that Seller deliberatelyactions or omissions related thereto, intentionally and unreasonably fails to deliver and/or (iv) the occurrence as a result of a Seller Material Adverse Event (with respect to item (iv) in the definition of Seller Material Adverse Event) (collectively, (but excluding in each case (x) matters constituting Material Title Defects or otherwise the subject of Section 3.4 (which are governed by Sections 3.4 and 10.3 for the failure to comply with Section 3.4) and (y) any matter related to the physical, structural and environmental condition (except a breach of Section 4.6) such termination of the Properties (which are governed under Article 8) "Pre-Closing Breaches"). Such notice shall state Purchaser's Cure Value. If the aggregate amount of Purchaser's Cure Values attributable to Pre-Closing Breaches under all Sale Agreements is equal to or less than the Pre-Closing Threshold, as applicable, then Purchaser shall be required to proceed to Closing without any reduction in, abatement of or credit against the Purchase Price on account of the Pre-Closing Breaches, but the Pre-Closing Breaches shall be deemed to survive Closing and the Losses to Purchaser (or Losses that Purchaser would incur upon or after Closing) related thereto shall be subject to indemnification by Seller subject to the provisions of Article XIEPA.

Pre-Closing Breaches. (a) Purchaser will shall promptly provide written notice to Seller (the "“Notice of Pre-Closing Breach Notice"Breach”) to Seller upon having knowledge learning of (i) any breach by Seller prior to the Closing Date of its any of Seller’s representations and or warranties set forth in Section 8.1 of this Agreement (without giving effect to and any materiality qualification), (ii) any breach by Seller of its covenants, (iii) failure to deliver any document required under Section 9.4(d) which is an Exhibit hereto or in the Disclosure Schedule (other than the lender estoppel certificates as provided for in Section 6.9, the certificates with respect to the Ground Leases as provided for in Section 6.10 and the certificates with respect to the REAs as provided for in Section 6.11) or any other document that Seller deliberately, intentionally and unreasonably fails to deliver and/or (iv) the occurrence of a Seller Material Adverse Event (with respect to item (iv) in the definition of Seller Material Adverse Event) covenants (collectively, (but excluding in each case (x) matters constituting Material Title Defects or otherwise the subject of Section 3.4 (which are governed by Sections 3.4 and 10.3 for the failure to comply with Section 3.4) and (y) any matter related to the physical, structural and environmental condition (except a breach of Section 4.6) of the Properties (which are governed under Article 8) "“Pre-Closing Breaches"”). Such notice The Notice of Pre-Closing Breach shall state set forth in reasonable detail an estimated dollar amount of Purchaser's Cure Value’s actual losses resulting from the Pre-Closing Breaches on a Property-by-Property basis. If the aggregate amount of Purchaser's Cure Values ’s losses attributable to all of the Pre-Closing Breaches under all Sale Agreements is equal to or less than the Pre-Closing Breach Threshold, as applicablethe parties shall proceed to the Closing without any reduction in or abatement of or credit against the Purchase Price on account of the Pre-Closing Breaches, then Purchaser but the Pre-Closing Breaches will be deemed to survive the Closing and the losses related thereto shall be required subject to the provisions of Section 8.4 and Section 8.5. If the aggregate amount of Purchaser’s losses attributable to the Pre-Closing Breaches exceeds the Pre-Closing Breach Threshold, Seller may in its sole discretion elect by giving written notice to Purchaser to either (a) proceed to the Closing and grant Purchaser a credit against the Purchase Price allocated on Schedule 3.1 for each Property identified in the Notice of Pre-Closing Breach in an amount equal to the Pre-Closing Breach, (b) cure prior to the Closing one or more of the Pre-Closing Breaches such that the aggregate amount of losses resulting from all remaining uncured Pre-Closing Breaches is equal to or less than the Pre-Closing Breach Threshold, or (c) cure prior to the Closing certain of the Pre-Closing Breaches and/or reduce the Purchase Price in the manner provided in clause (a) above such that the sum of the cost to cure such Pre-Closing Breaches plus such decrease in the Purchase Price equals the amount by which the losses resulting from such Pre-Closing Breaches exceeds the Pre-Closing Breach Threshold. If the aggregate amount of losses resulting from the Pre-Closing Breaches is greater than the Pre-Closing Breach Threshold and Seller does not make any of the elections described above prior to the Closing, Purchaser will have the right to elect to either (x) terminate this Agreement in its entirety as to all Properties and receive a refund of the Xxxxxxx Money Deposit and all interest earned thereon and thereafter, and Seller shall reimburse Purchaser or its Qualified Assignees for Purchaser’s Pursuit Costs incurred in connection in an amount not to exceed U.S. $1,500,000.00 upon receipt of substantiating documentation of such expenses reasonably satisfactory to Seller, and the parties shall have no further rights or obligations hereunder except for the Termination Surviving Obligations, or (y) proceed to the Closing without any reduction in, abatement of or credit against the Purchase Price on account of the Pre-Closing Breaches, but and Purchaser will be deemed to have waived the Pre-Closing Breaches if and only to the extent that such Pre-Closing Breaches cause the aggregate amount of any losses attributable to the Pre-Closing Breaches to exceed the Property Deductible, and such Pre-Closing Breaches shall be deemed to not survive the Closing and the Losses to Purchaser (or Losses that Purchaser would incur upon or after Closing) excess losses related thereto shall not be subject to indemnification by Seller subject to the provisions of Article XISection 8.4 and Section 8.5.