Common use of Waiver of Due Diligence Termination Right Clause in Contracts

Waiver of Due Diligence Termination Right. Buyer hereby waives its right pursuant to Section 5.2.1 of the Agreement to terminate the Agreement due to its due diligence investigation of the Tranche 1 Properties, subject to (i) (A) delivery by Seller to Buyer of personal financial statements and a schedule of real estate owned by Seller or its affiliates together with sufficient information within the control or possession of Seller or its affiliates describing the same together with such other information or documentation reasonably requested by Buyer (collectively, the “Seller Financial Information”) and (B) approval by Buyer, in its sole and absolute discretion, that (I) the Seller Financial Information is sufficient to provide a sufficient portion of the security for the Purchase Agreement Guaranty, and (II) that NOI Guarantor has, directly or indirectly, real estate holdings and the ability and control to pledge such holdings to Buyer to provide a sufficient portion of the security for the Purchase Agreement Guaranty (such determinations by Buyer, the “Seller Financial Conditions”) and (ii) the satisfactory completion of the conditions to the Tranche 1 Closing set forth in the Agreement. Not later than five (5) business days after Buyer receives the Seller Financial Information, Buyer will notify Seller as to whether Buyer has approved, in its sole and absolute discretion, the Seller Financial Conditions. If Buyer approves the Seller Financial Conditions, the parties shall prepare and agree to documentation satisfactory to Buyer to implement the granting of the security interest to Buyer with respect to the Seller Financial Conditions (the “Seller Security Documents”). If Buyer notifies Seller during such five (5) business day period that it does not approve the Seller Financial Conditions, then, within two (2) business days thereafter, Seller shall either (i) terminate the Agreement, in which case the Deposit shall be returned to Buyer or (ii) agree to fund One Million Five Hundred Thousand Dollars ($1,500,000) (rather than $500,000 as otherwise required) into the Holdback Escrow at the Tranche 1 Closing. If (i) Buyer approves the Seller Financial Conditions but either the Seller Security Documents are not executed and delivered at Closing or Seller fails to actually fund the required $500,000 into the Holdback Escrow at Closing, or (ii) Buyer disapproves of the Seller Financial Conditions and the Seller has agreed to fund $1,500,000 into the Holdback Escrow at Closing as aforesaid, but thereafter fails to actually fund such amount into the Holdback Escrow at Closing, then, in either case, Seller shall be in breach of the Agreement and the terms of Section 13.1 of the Agreement shall apply.