A. The Two-Step Materiality Inquiry "Parties to a contract may make `time is of the essence' a provision of the contract," meaning that performance by one party at the time or within the time frame specified in the contract is essential to enable him to require counterperformance by the other party. Maywood Proviso St. Bank v. York St. Bank Trust Co., 252 Ill.App.3d 164, 169, 192 Ill.Dec. 123, 625 N.E.2d 83 (1st Dist. 1993). Timely performance often is an absolute requirement even if the contract does not contain the talismanic phrase "time is of the essence"; it is well-settled that "the intention of the parties as expressed by the agreement controls," Will v. Will Prods. Inc., 109 Ill.App.3d 778, 782, 65 Ill.Dec. 430, 441 N.E.2d 343 (2d Dist. 1982), and courts "will give effect to this provision when no peculiar circumstances have intervened to prevent or excuse strict compliance." Maywood, 252 Ill.App.3d at 169, 192 Ill.Dec. 123, 625 N.E.2d 83 (citing Hart v. Lyons, 106 Ill.App.3d 803, 805, 62 Ill.Dec. 697, 436 N.E.2d 723 (2d Dist. 1982)).

735 ILCS 5/2-1005(c) (West 1994); Purtill v. Hess, 111 Ill.2d 229, 240, 489 N.E.2d 867, 871 (1986). Maywood Proviso State Bank v. York State Bank Trust Co., 252 Ill. App.3d 164, 171, 625 N.E.2d 83, 86 (1993). When all parties move for summary judgment, the court is invited to decide the issues thus presented as a matter of law, and entry of summary judgment for one party or the other is proper.

[Citations.] The obligations of the parties end in the event that a condition precedent is not satisfied." ( Maywood Proviso State Bank v. York State Bank Trust Co. (1993), 252 Ill. App.3d 164, 168, 625 N.E.2d 83, 87.) A condition subsequent, on the other hand, is an event which, if it occurs, discharges preexisting contractual liability. See, e.g., Ahlers v. Sears, Roebuck Co. (1978), 73 Ill.2d 259, 383 N.E.2d 207 (monthly payments under settlement contract; payments would be discontinued upon occurrence of condition subsequent); see also Evans v. Brown (1994), 267 Ill. App.3d 662, 642 N.E.2d 1335 (easement granted, subject to condition subsequent and reverter in case of nonuse or use inconsistent with highway).

A condition precedent is defined as an event which must occur or an act which must be performed by one party to an existing contract before the other party is obligated to perform. ( Maywood Proviso State Bank v. York State Bank Trust Co. (1993), 252 Ill. App.3d 164, 168; 18 W. Jaeger, Williston on Contracts § 1954, at 126-27 (3d ed. 1978).) The obligations of the parties end in the event that a condition precedent is not satisfied. ( Maywood Proviso, 252 Ill. App.3d at 168.

We cannot accept Mr. Krueger's contention. First, we note Mr. Krueger's admission that his December 1993 payment was late. He also acknowledged that, just as the bankruptcy court had construed it, the addendum that he himself sought to incorporate into the loan agreement required both timely payments and a balance of less than $26,000. See Maywood Proviso State Bank v. York State Bank Trust Co., 625 N.E.2d 83, 88 (Ill.App.Ct. 1993) ("A court cannot revise a contract and give a litigant a better bargain than he himself made."). It is clear that Mr. Krueger failed to satisfy one of the two specific contractual conditions in the addendum.

The district court held that the deposit of the funds in the escrow account was a condition precedent to the waiver of interest and therefore, since no funds were ever deposited, Liu never had any obligation to waive the interest. See Maywood Proviso State Bank v. York State Bank and Trust Co., 625 N.E.2d 83, 87 (Ill.App.Ct. 1993) (In Illinois law, a condition precedent is defined as "an event which must occur, or an act which must be performed by one party to an existing contract before the other party is obligated to perform."). TH seems to argue that the agreement here in question involved a promise rather than a condition, although it does not say so in as many words. It points us to some testimony by one Jeffrey Bandel, which it describes as "the only evidence regarding the interest waiver issue," and which it says the district court improperly ignored.

A condition precedent is “an event which must occur, or an act which must be performed by one party to an existing contract before the other party is obligated to perform.” Maywood Proviso State Bank v. York State Bank & Tr. Co., 625 N.E.2d 83, 87 (1st Dist. 1993).

See Smurfit Newspring Corp. v. Southeast Paper Mfg., 368 F.3d 944, 951 (7th Cir. 2004) ("An express condition precedent is imposed by the parties in the terms of the agreement."); see also Liu v. T & H Machine, Inc., 191 F.3d 790, 798 (7th Cir. 1999) ("In Illinois law, a condition precedent is defined as 'an event which must occur, or an act which must be performed by one party to an existing contract before the other party is obligated to perform.') (quoting Maywood Proviso State Bank v. York State Bank and Trust Co., 625 N.E.2d 83, 87 (1993)); 13 Williston on Contracts § 38:6 (4th ed.) ("As a general rule, unless the performance is waived, excused, or prevented by the other party, or unless it repudiates the contract, conditions which are either express or implied in fact must be literally met or exactly fulfilled, or no liability can arise on the promise qualified by the conditions."). Based on the weight of the evidence submitted by the parties at trial and for the reasons explained, "proceed" requires the Defendants to have actually opened a park and competed with High Elevations as competitors in the trampoline park market.

In addition, "[p]arties to a contract may make 'time is of the essence' a provision of the contract, meaning that performance by one party at the time or within the time frame specified in the contract is essential to enable him to require counter-performance by the other party." Arnhold v. Ocean Atlantic Woodland Corp., 284 F.3d 693, 699 (7th Cir. 2002)(quoting Maywood Proviso St. Bank v. York St. Bank & Trust Co. 252 Ill. App. 3d 164, 169, 192 Ill. Dec. 123, 625 N.E. 2d 83 (1st. Dist. 1993)). "If a party fails to perform his duties under a contract without a valid excuse, he is liable for a breach of contract, and the remedies for the breach would depend on whether the breach was material or minor."

The determination of whether a breach is material depends upon consideration of several factors, including the intent of the parties with respect to the disputed provision and the equitable factors and circumstances surrounding the breach of the provision. Maywood Proviso State Bank v. York State Bank & Trust Co., 252 Ill. App. 3d 164, 625 N.E.2d 83 (1st Dist. 1993); Restatement (Second) of Contracts § 241 (1981); see Arnhold v. Ocean Atlantic Woodland Corp., 284 F.3d 693 (7th Cir. 2002)....