See Aveanna Healthcare, LLC v. Epic/Freedom, LLC, 2021 WL 3235739, at *25 (Del. Super. Ct. July 29, 2021) (“An unexcused and unsatisfied condition keeps a dependent duty from accruing . . . .” (citing Lennox Indus. Inc. v. All. Compressors LLC, 2020 WL 4596840, at *3 (Del. Super. Ct. Aug. 10,2020))). As a result, Defendants cannot now rely on the Letter of Intent to modify their obligations under to the Subscription Agreements when they admit that they did not satisfy the agreed-upon condition for nullifying the Subscription Agreements.
"If the language does not clearly provide for a forfeiture, then a court will construe the agreement to avoid causing one."See Aveanna Healthcare, LLC v. Epic/Freedom, LLC, 2021 WL 3235739, at *25 (Del. Super. Ct. July 29, 2021); see, e.g., Lennox Indus. Inc. v. All. Compressors LLC, 2020 WL 4596840, at *3 & n.15 (Del. Super. Ct. Aug. 10, 2020) (dismissing claim as unripe because claimant failed to undertake compulsory pre-litigation dispute resolution, which was a "condition precedent to litigation" (internal quotation marks omitted)); cf. Brazen v. Bell Atl. Corp., 1997 WL 153810, at *2 (Del. Ch. Mar. 19, 1997) ("[The] claim is not dependent on occurrence of [a] condition precedent, and is, therefore, ripe for adjudication."); see generally Restatement (Second) of Contracts § 235(2) ("When performance of a duty under a contract is due any non-performance is a breach." (emphasis added)).
Alliance Compressors LLC v. Lennox Industries, Inc., C. A. No. 2019-0186-KSJM (Jan. 6, 2020).Lennox Indus. Inc. and Allied Air Enterprises LLC v. Alliance Compressors LLC, C. A. No. N19C-03-045 AML CCLD (Aug. 10, 2020). PARTIES' CONTENTIONS
E.g., Shire, 2020 WL 6018738, at *17; see also Williams II, 159 A.3d at 273 ("[O]nce a breach of a covenant is established, the burden is on the breaching party to show that the breach did not contribute materially" to the non-occurrence of the condition. (citing Restatement of Contracts § 245 cmt. b)).See, e.g., Lennox Indus. Inc. v. All. Compressors LLC, 2020 WL 4596840, at *3 & n.15 (Del. Super. Ct. Aug. 10, 2020) (dismissing claim as unripe because claimant failed to undertake compulsory pre-litigation dispute resolution, which was a "condition precedent to litigation" (internal quotation marks omitted)); cf. Brazen v. Bell Atl. Corp., 1997 WL 153810, at *2 (Del. Ch. Mar. 19, 1997) ("[The] claim is not dependent on occurrence of [a] condition precedent, and is, therefore, ripe for adjudication."); see generally Restatement of Contracts § 235(2) ("When performance of a duty under a contract is due any non-performance is a breach." (emphasis added)).