consent, i.e. proof of the sale of the Beach Street Residence, was an impermissible condition
under the terms of the Agreement, and that the Board's issuance of such consent, conditioned on
the sale of the Beach Street Residence, gave the Colacinos an immediate right of cancellation as
it made it impossible for the Sellers to fulfill their obligations under Paragraph 20 of the Sellers'
Rider.
The Colacinos further argue that the "consent" that had to have been obtained from
the Board by the Adjourned Closing Date was actually a written letter and that, since no such
letter was issued on the Adjourned Closing Date, they were entitled to cancel the Agreement.
The Colacinos also argue that their cancellation option under Paragraph 6.3 of the
Contract could be validly exercised as of the close of business on the Adjourned Closing Date
and that, in any event, unconditional Board approval could not be obtained prior to the closing of
the Beach Street Residence scheduled for October 16, 2009, much less a Closing on the
Apartment which was to occur on or before the Adjourned Closing Date according to the terms
of the Agreement.[FN5]
The Colacinos further argue that, contrary to the Sellers' arguments that they delayed
the [*8]approval process in bad faith, their actions actually
hastened the approval process whereas the delays occasioned by the travels of various Board
members and the slowness of Sledge in transmitting information were the cause of 81% of the
delay over the allocated 48 days.
Additionally, the Colacinos argue that the cross motion to disqualify Bergman must
be denied as any testimony that Bergman can provide as to the issue of bad faith is either (i)
irrelevant because the contract was terminated before settlement negotiations began, (ii)