Common use of Failure or Waiver of Conditions Precedent Clause in Contracts

Failure or Waiver of Conditions Precedent. In the event ------------------------------------------ any of the conditions set forth in Section 3.1 are not fulfilled or waived, the party benefitted by such condition may, by written notice to the other party, terminate this Agreement, whereupon all then remaining rights and obligations hereunder of each party shall be at an end and, in the event of the failure of a condition set forth in Section 3.1(a), the Deposit, together with interest, shall be returned to Buyer. Either party may, at its election, at any time or times on or before the date specified for the satisfaction of the condition, waive in writing the benefit of any of the conditions set forth in Section 3.1(a) and 3.1(b) above. Notwithstanding the foregoing, Buyer's failure to deliver to Seller on or prior to the close of the Inspection Period an executed Inspection Letter in the form attached as Exhibit B, without modification or ---------- qualification in any manner whatsoever, shall be deemed a failure of the condition set forth in Section 3.1(a)(i) above. In any event, Buyer's consent to the close of escrow pursuant to this Agreement shall waive any remaining unfulfilled conditions. In the event this Agreement is terminated by Buyer prior to the end of the Inspection Period based on the failure of a condition set forth in Section 3.1(a)(i) (as evidenced by written notice of such termination given by Buyer to Seller and Title Company on or prior to the close of the Inspection Period), then, within two (2) business days following Title Company's receipt of Buyer's demand therefor, Title Company is hereby instructed, without the need for further mutual instructions from the parties (and notwithstanding any contrary instruction from either Buyer or Seller), to immediately deliver the Deposit and all interest accrued thereon to Buyer and to cancel the Escrow. Title Company is instructed not to accept any modification of this instruction unless such modification is on a single document signed by both Buyer and

Failure or Waiver of Conditions Precedent. In the event ------------------------------------------ any of the conditions set forth in subsections (d) or (f) of Section 3.1 4.7 are not fulfilled or waivedwaived on or before the Outside DPO Consent Approval Date or in the event any of the other conditions set forth in Sections 4.6 or 4.7 are not fulfilled or waived on or before the Closing Date, the party benefitted benefited by such condition may, by written notice to the other party, terminate this Agreement, whereupon whereupon, as set forth in the Agreement, to the extent the Xxxxxxx Money has been funded by Purchaser pursuant to Section 1.6 above, the Xxxxxxx Money shall, as provided herein, either be refunded to Purchaser (less, if Seller is not in default under this Agreement, Purchaser’s share of any escrow charges) or the Xxxxxxx Money shall be delivered to Seller and all then remaining rights and obligations hereunder of each party shall be at an end andterminate except those that expressly survive any termination of this Agreement. In the event that (i) the only condition or conditions to Closing that have not been fulfilled or waived on or before the Outside DPO Consent Approval Date are the conditions set forth in Section 4.7 (d) or (f) and Seller has elected not to waive such condition and (ii) Purchaser is not otherwise in default of its obligations under this Agreement, Seller shall: (a) pay to Purchaser a break-up fee in the event amount of $1,000,000 and (b) reimburse Purchaser for its reasonable, out-of-pocket, third-party costs and expenses actually incurred by Purchaser in connection with its attempt to acquire and finance the failure Property (including for any costs or expenses payable by Seller pursuant to Section 1.5(d) above) in an amount not to exceed $600,000 (provided Purchaser provides documentation reasonably satisfactory to Seller evidencing the nature and amount of such costs and expenses). Either party benefited by a condition set forth in Section 3.1(a), the Deposit, together with interest, shall be returned to Buyer. Either party Sections 4.6 and 4.7 above may, at its election, at any time or times on or before the date specified for the satisfaction of the condition, waive in writing the benefit of any such condition. The parties’ consummation of the conditions set forth in Section 3.1(a) and 3.1(b) above. Notwithstanding the foregoing, Buyer's failure to deliver to Seller on or prior to the close of the Inspection Period an executed Inspection Letter in the form attached as Exhibit B, without modification or ---------- qualification in any manner whatsoever, shall be deemed a failure of the condition set forth in Section 3.1(a)(i) above. In any event, Buyer's consent to the close of escrow Closing pursuant to this Agreement shall waive any remaining unfulfilled conditions. In conditions and any liability on the event this Agreement is terminated by Buyer prior to the end part of the Inspection Period based on the failure other party for breaches of a condition set forth in Section 3.1(a)(i) (representations and warranties of which such party had actual knowledge as evidenced by written notice of such termination given by Buyer to Seller and Title Company on or prior to the close of the Inspection Period), then, within two (2) business days following Title Company's receipt of Buyer's demand therefor, Title Company is hereby instructed, without the need for further mutual instructions from the parties (and notwithstanding any contrary instruction from either Buyer or Seller), to immediately deliver the Deposit and all interest accrued thereon to Buyer and to cancel the Escrow. Title Company is instructed not to accept any modification of this instruction unless such modification is on a single document signed by both Buyer andClosing.

Failure or Waiver of Conditions Precedent. In the event ------------------------------------------ any of the conditions either contingency set forth in Section Sections 3.1 and 3.2 is not satisfied due to reasons or events that are not fulfilled or waived, the result of the breach of this Agreement by the party benefitted intended to be benefited by such condition, or such condition mayis not waived by notice by the party intended to be benefited thereby, then by written notice from the party intended to be so benefited to the other partyother, this Agreement shall terminate and the parties shall not have any obligations accruing following such termination except those which explicitly survive termination in accordance with the express provisions of this Agreement. In any event, a party may not terminate this Agreement, whereupon all then remaining rights and obligations hereunder of each party shall be at an end and, in the event of Agreement pursuant to this Section 3.4 if the failure of a condition set forth in Section 3.1(a)for the benefit of that party is the result of an Event of Default by that party, it being the Deposit, together with interest, intent of the parties that any Event of Default shall be returned addressed in accordance with the provisions of Article 7 of this Agreement. In no event shall Seller’s failure to terminate all Leases and/or any Tenant’s failure to vacate be deemed a breach of Seller’s obligations under this Agreement. Within one (1) Business Day following a termination pursuant to this Section 3.4, Seller shall take all such actions as may be required by the Title Company to cause the Title Company to disburse the Deposit and all interest accrued thereon to Buyer. Upon any termination of this Agreement other than due to Seller’s Event of Default, Buyer shall pay any escrow cancellation charge. Either party may, at its election, at any time or times on or before the date specified for the satisfaction of the condition, waive in writing by notice to the benefit of other party any of the conditions for its benefit set forth in Section 3.1(a) Sections 3.1 and 3.1(b) 3.2 above. Notwithstanding 3.5 Buyer’s Review and Seller’s Disclaimer. 3.5.1 Until the foregoingtermination of this Agreement, subject to the rights of Tenants pursuant to their respective Leases and the conditions set forth below, and upon at least one (1) Business Day’s prior notice to Seller, Buyer's failure to deliver to Seller on or prior to the close of the Inspection Period an executed Inspection Letter in the form attached as Exhibit B, without modification or ---------- qualification in any manner whatsoeverits employees, consultants and contractors, shall be deemed permitted to make a failure physical inspection of the condition set forth in Section 3.1(a)(i) aboveProperty. In any event, Buyer's consent to the close of escrow pursuant to this Agreement shall waive any remaining unfulfilled conditions. In the event this Agreement is terminated by Buyer prior to the end of the Inspection Period based on the failure of a condition set forth in Section 3.1(a)(i) (as evidenced by written notice of such termination given by Buyer to Seller and Title Company on or prior to the close of the Inspection Period), then, within Within two (2) business days following Title Company's receipt of Buyer's demand thereforthe Effective Date, Title Company is hereby instructed, without the need for further mutual instructions from the parties (and notwithstanding any contrary instruction from either Buyer or Seller), to immediately deliver the Deposit and all interest accrued thereon shall make available to Buyer and its representatives in an electronic virtual file room any and all documents and information relating to cancel the EscrowProperty (excluding Seller entity ownership and entity financial documents) in Seller’s possession, including information regarding the physical condition of the Property, construction documents, condition reports, maintenance and repair contracts and related correspondence and related invoices, property operating expenses, insurance claims, reports relating to prior damage, correspondence with Tenants and the owners, tenants and managers of neighboring properties and governmental entities and similar documents relating to the Property which are material to the purchase, ownership or operation of the Property. Title Company is instructed Seller shall reasonably cooperate with Buyer in the making of its investigations. The previous provision to the contrary notwithstanding, the Buyer shall not conduct any intrusive environmental testing or sampling on the Property without the prior written consent of Seller, which consent shall not unreasonably be withheld or conditioned and shall be deemed given if not denied by notice to accept any modification Buyer given within two (2) Business Days following the giving of this instruction unless such modification is on a single document signed by both Buyer andBuyer’s request for consent. In 6

Failure or Waiver of Conditions Precedent. In the event ------------------------------------------ If any of the conditions set forth in Section 3.1 SECTION 4.1 are not fulfilled or waivedwaived at or prior to Closing, then the party benefitted by such condition may, by written notice to the other party, terminate this Agreement, whereupon all then remaining rights and obligations hereunder of each party shall cease and terminate and be at an end andof no further force or effect except for the Surviving Covenants, unless the other party is able to secure the satisfaction of the noted condition within five (5) Business Days of such termination notice, in which event this Agreement shall not terminate. Notwithstanding the event of the failure of a condition set forth in Section 3.1(a)foregoing, the Deposit, together with interest, termination of this Agreement pursuant to this SECTION 4.2 shall not be returned deemed to Buyerwaive any rights that a party may have pursuant to Article VI of this Agreement. Either party may, at its election, at any time or times on at or before the date specified for the satisfaction of the conditionClosing, waive in writing the benefit of any of the conditions set forth in Section 3.1(aSECTION 4.1(A) and 3.1(b) above. Notwithstanding the foregoing, Buyer's failure to deliver to Seller on or prior to the close of the Inspection Period an executed Inspection Letter in the form attached as Exhibit B, without modification or ---------- qualification in any manner whatsoever, shall be deemed a failure of the condition set forth in Section 3.1(a)(i) aboveSECTION 4.1(B). In any event, BuyerAcquiror's consent to the close Close of escrow pursuant to this Agreement shall waive any remaining unfulfilled conditionsconditions except as otherwise specified by the provisions in writing. In the event If this Agreement is terminated by Buyer prior to the end Acquiror as a result of the Inspection Period based on the failure of a any condition set forth in Section 3.1(a)(iSECTION 4.1(A) (or by Meridian as evidenced by written notice a result of such termination given by Buyer the failure of the condition set forth in SECTIONS 4.1(B)(I), the Title Company, as escrow agent, shall return the full amount of the Deposit to Seller and Title Company on or prior Acquiror, together with any interest accrued thereon. Notwithstanding anything to the close contrary contained herein, (i) Acquiror may only waive the condition set forth in SECTION 4.1(A)(XV) hereof if all of Acquiror's conditions precedent in each of the Inspection Period)Outlot Purchase Agreements (other than those under which the seller thereunder shall have defaulted) shall have been satisfied or waived and the purchaser thereunder shall be ready, thenwilling and able to close thereunder, within two and (2ii) business days following Title CompanyMeridian may only waive the conditions set forth in SECTION 4.1(B)(III) hereof if all of the seller's receipt conditions precedent in each of Buyer's demand thereforthe Outlot Purchase Agreements (other than those under which Acquiror shall have defaulted) shall have been satisfied or waived and the sellers thereunder shall be ready, Title Company is hereby instructed, without the need for further mutual instructions from the parties (willing and notwithstanding any contrary instruction from either Buyer or Seller), able to immediately deliver the Deposit and all interest accrued thereon to Buyer and to cancel the Escrow. Title Company is instructed not to accept any modification of this instruction unless such modification is on a single document signed by both Buyer andclose thereunder.