Common use of Failure of Conditions Clause in Contracts

Failure of Conditions. The conditions set forth in Sections 8.1 and 8.2, other than the conditions set forth in Sections 8.2(e) – (o), are referred to herein as “Closing Day Conditions,” and the conditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this Agreement, and either (a) a Closing Day Condition is not satisfied or waived as of the Closing Date (as same may be duly extended pursuant to the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then the Party benefiting from such condition (the “Electing Party”) may either (i) waive such condition and proceed to Closing (subject to the terms and conditions of this Agreement), or (ii) extend the Closing Date with respect to any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to (1) if a Portfolio MAE exists, terminate this Agreement with respect to all remaining Properties, in which case the Deposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement); (2) terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) and proceed to Closing in accordance with the terms of this Agreement and without any adjustment to the Purchase Price.

Failure of Conditions. The conditions set forth in Sections 8.1 and 8.2In the event that as of July 1, other than 1998 for any reason any of the conditions set forth in Sections 8.2(eSection 2 (the "Conditions") – are not met, MainStreet shall have the option, exercisable by written notice to UCI on or before July 8, 1998 to either (oi) require UCI to continue to use its reasonable best efforts to complete the Conditions no later than July 31, 1998, or (ii) unwind the transactions as herein provided (an "Unwind Event"). In the case of an Unwind Event or if the Conditions have not been met by July 31, 1998, the parties to the Acquisition Agreement shall immediately take all actions in their best efforts to restore the parties to the respective positions they held prior to the closing of the transactions contemplated in the Acquisition Agreement. In this connection, without limiting the generality of the foregoing, each party to the Acquisition Agreement shall (a) undertake all such actions necessary so that, to the greatest extent reasonably practicable, all liabilities and assets transferred from any party in the Acquisition are referred transferred back to herein such party, (b) shall execute and deliver any and all deeds, bills of sale, assignments, assumptions, and other instruments of conveyance or assumption as “Closing Day Conditions,” shall be reasonably required to return such liabilities and assets, and (c) perform such other acts as set forth in the Acquisition Agreement concerning the unwinding of the transactions contemplated in the Acquisition Agreement. The Transferees will use commercially reasonable efforts to hold separate and segregate the Assets until the conditions set forth in Sections 8.2(eSection 2 above are satisfied. In the event for any reason a party (the Maker") – is unable to return to any other party (othe "Holder") are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this Agreement, and either any assets (aincluding any cash) a Closing Day Condition is not satisfied or waived as of liabilities received by or from the Closing Date (as same may be duly extended Holder pursuant to the terms hereof)Acquisition Agreement, or (b) the Maker shall immediately execute and delivery to the Holder a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then the Party benefiting from such condition promissory note (the “Electing Party”"Note") may either (i) waive such condition and proceed to Closing (subject to in favor of the terms and conditions of this Agreement)Holder in an original principal amount equal to, or (ii) extend the Closing Date with respect to any Property affected party, the excess, if any, of the amount of the fair market value of any and all assets which are not returned by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option party as set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, above over the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to (1) if a Portfolio MAE exists, terminate this Agreement with respect to all remaining Properties, in which case the Deposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement); (2) terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the failed closing condition (but without waiver fair market value of any other rights of the Electing Party hereunder) and proceed to Closing all liabilities which are not returned by such party in accordance with each case taking into account the terms of this Agreement the Acquisition Agreement. Such Note shall bear interest at the then "Prime Rate" as listed in the Money Rates Section of the Wall Street Journal, and without any adjustment to all interest and principal thereunder shall be due and payable one month after the Purchase Pricedate of execution of such Note.

Failure of Conditions. The conditions set forth If (i) Seller shall be unable to give title, make conveyance or deliver possession of the Property, all as herein stipulated, (ii) at the time of the Closing the Property does not conform with the provisions hereof in Sections 8.1 and 8.2, all material respects or (iii) any other than condition to Purchaser's obligation to purchase the conditions set forth in Sections 8.2(e) – (o), are referred to herein as “Closing Day Conditions,” and the conditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is Property shall not in default under this Agreement, and either (a) a Closing Day Condition is not be satisfied or waived as at the time of the Closing Date (as same may be duly extended pursuant each such event referred to in the terms hereofforegoing clauses (i), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then the Party benefiting from such condition (the “Electing Party”) may either (i) waive such condition and proceed to Closing (subject to the terms and conditions of this Agreement), or (ii) extend the Closing Date with respect to any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as (iii) being hereinafter called a "Failure of such extended Closing Date either Condition"), then Seller, for a Failure of Condition arising out of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii), and Purchaser, at Purchaser's election, for a Failure of Condition arising out of clause (iii), shall give written notice thereof to the other at or before the time of the Closing, and thereupon, at Seller's option, the time of the Closing shall be extended for a period of up to 60 days, during which time Xxxxxx xxxll use reasonable efforts to cure such Failure of Condition. This iterative process Such efforts of Seller to cure such Failure of Condition shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreementnot require Seller to expend more than $300,000 in costs and expenses in such efforts; provided, orhowever, if earlier, any such Failure of Condition relating to the occurrence condition of title to the Land and Improvements is a result of a voluntary consensual action by Seller to so encumber the title to the Land and Improvements such dollar limit to Seller's efforts shall not apply. If the time of the Outside Closing Date. If is extended and if at the end of such extension period Seller shall have failed so to cure such Failure of Condition, as herein provided, or if at the Closing there is a Failure of Condition and the time of the Outside Closing Date a closing condition set forth is not extended by Seller, and, in Section 8.1 or Section 8.2 has either such instance, if Purchaser, at its election, does not been satisfied or waivedwaive any such Failures of Condition, then the Electing Party Deposit and all interest accrued thereon shall have be forthwith refunded to Purchaser and all other obligations of the right to (1) if a Portfolio MAE exists, terminate parties hereto shall cease and this Agreement with respect to all remaining Properties, in which case the Deposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, be null and void and the Parties parties hereto shall have no further rights obligation or obligations under this Agreement with respect to such Properties liability arising hereunder (except for such Purchaser's obligations that expressly survive the termination of this Agreement); (2i) terminate this Agreement with respect to any Property with respect to for Violations, which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) and proceed to Closing continue in accordance with the terms of this Agreement Paragraph 18 and without any adjustment to the Purchase Price(ii) as otherwise provided in Paragraph 20).

Failure of Conditions. The conditions set forth If any condition specified in Sections 8.1 and 8.2, other than the conditions set forth in Sections 8.2(e) – (oSection 9.1(d), are referred to herein as “Closing Day Conditions,” and the conditions set forth in Sections 8.2(e(f), (i), (m) – or (on) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this Agreement, and either (a) a Closing Day Condition is not satisfied on or waived as of before the applicable Closing Date (as same may be duly extended pursuant to Date, either Buyer or the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of applicable Seller shall have the right extend such Closing Date by written notice to the other party(ies) for a sufficient time (but not to exceed 15 days) within which to cure or was satisfied or waived fewer than ten (10) Business Days prior satisfy such condition and if a party elects to extend such Closing Date, then such Seller shall immediately commence prosecution of such cure or satisfaction. If any condition specified in any other provision of Section 9.1 is not cured or satisfied on or before the Party benefiting from applicable Closing Date, or any condition specified in Section 9.1(d), (f), (i), (m) or (n) is not satisfied within the 15-day or shorter period set forth above (if such Closing Date was extended as aforesaid) or if no party exercises such extension right, Buyer may, at its option, and in its sole and absolute discretion, (a) extend the applicable Closing Date to allow such Seller a sufficient time (but not to exceed 15 days) within which to cure or satisfy such condition, (b) waive any such condition (which can legally be waived either at the “Electing Party”) may either (i) waive time originally established for such condition Closing or at any time on or before the 15th day thereafter and proceed to such Closing without adjustment or abatement of the Purchase Price, (subject c) terminate this Agreement as to the terms and conditions Bridgepoint Property only if such condition relates to the Bridgepoint Property or all of this Agreement), the remaining Properties only if such condition does not relate to the Bridgepoint Property by written notice to the applicable Seller or (iid) extend the Closing Date with respect to any Property affected by if such condition to is the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 9.1(i) with respect to estoppels or Section 8.2 such condition has a Material Adverse/Economic Effect, either (1) terminate this Agreement as to such Seller and such Seller’s Property (provided this Agreement shall remain in effect with respect to all other Properties) or (2) proceed to such Closing and receive a credit at such Closing in an amount equal to the Remedial Cost with respect to such matter, not been satisfied to exceed $100,000. If Buyer elects to terminate this Agreement in whole or waivedin part as aforesaid, Buyer shall do so by delivering a Termination Notice to the applicable Seller(s) within three (3) Business Days after the applicable Closing Date, or the expiration of such 15 day (or shorter) period, if applicable. In addition, if Buyer elects to terminate this Agreement as to either the Aurora Property or Park 355 Property, the Electing Party applicable Sellers shall have the right to (1) if a Portfolio MAE exists, terminate this Agreement with respect as to all remaining Propertiesof the Non-Bridgepoint Properties by written notice delivered to Buyer within five (5) days after receipt of the Termination Notice; provided, however, if such Seller(s) exercises such termination right, Buyer shall have the right to rescind the Termination Notice by giving written notice to the applicable Seller within 2 Business Days after Buyer’s receipt of such notice from such Seller(s). In the case of a full or partial termination of this Agreement, Escrow Agent shall refund to Buyer the applicable Property Deposit, less the Independent Contract Consideration applicable to such Property (which Escrow Agent shall deliver to such Seller), and Buyer and Seller shall each pay one half of the cancellation charges as to such Property (unless a Seller is in breach or default hereunder in which case such Seller shall pay the Deposit cancellation charges as to such Property) if any, of Escrow Agent shall promptly refund the remaining Deposit to Buyerand Title Company, and the Parties hereto this Agreement shall be of no further force or effect as to such Seller and its Property and neither party shall have no any further rights or obligations under this Agreement with respect hereunder as to such Properties one another (except for such obligations that other than pursuant to any provision hereof which expressly survive survives the termination of this Agreement); , but this Agreement will remain in full force and effect as to all other Properties. In addition to (2and notwithstanding) the foregoing, if the failure of the condition is due to a breach by such Seller hereunder, Buyer may terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms extent set forth above and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 recover its costs and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies expenses under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial terminationSection 13.1(i); or (3) waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) and proceed to Closing in accordance with the terms of this Agreement and without any adjustment to the Purchase Price.

Failure of Conditions. The conditions set forth in Sections 8.1 and 8.2, other than (a) If the conditions set forth in Sections 8.2(e6.1(c) – or (oe) cannot or will not be satisfied at or prior to the Closing Date (unless the failure to satisfy any such conditions is caused by the default of Purchaser under this Agreement), and, if curable, Sellers are referred unable to herein cure any such matter or satisfy such condition within fifteen (15) days after written notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration of such fifteen (15) day period), then Purchaser may elect by written notice delivered to Sellers to terminate this Agreement, in which event (i) the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 8.6 which expressly survive a termination of this Agreement, (ii) the Deposit shall be returned to Purchaser, and (iii) all other rights and obligations of the parties hereunder (except those referenced in clause (i)) shall terminate immediately. Notwithstanding the foregoing, in the event that the condition set forth in Section 6.2(d) has not been satisfied by the Closing Date, and if Purchaser has the right to commence an action for specific performance under the CNL Agreement and elects to commence such an action in the name of Sellers and Purchaser, Purchaser shall have the right to adjourn the Closing Date until such date as “Closing Day Conditions,” a closing is mandated by court order. The costs of such litigation shall be borne 55% by Sellers and 45% by Purchaser, payable monthly. If Sellers and Purchaser do not prevail in such litigation, then upon the earlier to occur of (x) the issuance of a final non-appealable decision denying the plaintiffs specific performance or (y) the decision by Purchaser not to pursue the litigation any further, either Sellers or Purchaser may elect to terminate this Agreement as provided above. If the conditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this Agreement, and either 6.1 (a), (b) a Closing Day Condition is or (d) cannot or will not be satisfied on or waived as of prior to the Closing Date (as same may be duly extended pursuant unless the failure to the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then the Party benefiting from satisfy such condition (is caused by the “Electing Party”) may either (i) waive such condition and proceed to Closing (subject to the terms and conditions default of Purchaser or its Affiliates under this Agreement), or (ii) extend the Closing Date with respect to any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder provisions of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party Section 10.1 shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to (1) if a Portfolio MAE exists, terminate this Agreement with respect to all remaining Properties, in which case the Deposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement); (2) terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) and proceed to Closing in accordance with the terms of this Agreement and without any adjustment to the Purchase Pricegovern.

Failure of Conditions. The conditions set forth in Sections 8.1 and 8.2, other than If the conditions set forth in Sections 8.2(e) – (o), are referred precedent for the benefit of Purchaser shall fail to herein as “Closing Day Conditions,” and the conditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this Agreement, and either (a) a Closing Day Condition is not satisfied be met at or waived as of the Closing Date (as same may be duly extended pursuant prior to the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then provided that the Party benefiting same shall not have resulted from such condition the default by Purchaser hereunder (it being understood and agreed that failure to secure the “Electing Party”) may either (i) waive such condition and proceed Required Consents shall not, absent the failure to Closing (subject to use good faith commercially reasonable efforts, constitute a default on the terms and conditions part of this AgreementPurchaser hereunder), or (ii) extend the Closing Date with respect to any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party then Purchaser shall have the right as its sole and exclusive remedy to elect, with such election to be determined in Purchaser’s sole and absolute discretion, (1i) if a Portfolio MAE exists, to terminate this Agreement with respect by providing written notice thereof to all remaining PropertiesSeller, in which case event the Deposit Escrow Agent (less the amount of the extension fee related to the Existing Debt Extension that Purchaser is expressly required to pay or reimburse hereunder, which amount shall promptly refund the remaining Deposit be paid to Buyer, Seller) shall be immediately returned to Purchaser and the Parties hereto parties shall have no further rights or obligations under this Agreement except to the extent expressly deemed to survive termination hereof, or (ii) to waive any of the conditions precedent which exist for Purchaser’s benefit at the Closing and to proceed to Closing immediately. If the conditions precedent for the benefit of Seller shall fail to be met at or prior to the Closing Date, provided that the same shall not have resulted from the default by Seller hereunder (it being understood and agreed that failure to secure any of the deliverables constituting conditions precedent (other than Seller’s delivery of the deliverables required of it under Section 8.2 hereof) shall not in any event constitute a default on the part of Seller under this Agreement unless the same shall have resulted from a failure by Seller to use the efforts described in, and subject to the limitations of, Section 6.3 above), then Seller shall have the right as its sole and exclusive remedy to elect, with respect such election to such Properties be determined in Seller’s sole and absolute discretion, (except for such obligations that expressly survive the termination of this Agreement); (2i) to terminate this Agreement with respect by providing written notice thereof to any Property with respect to Purchaser, in which a closing condition has not been satisfied or waived event the Deposit (each such excluded Property, a “Closing Condition Excluded Property”) and close on less the remainder amount of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject extension fee related to the terms and conditions of this Agreement) with respect Existing Debt Extension that Purchaser is expressly required to the remaining Propertiespay or reimburse hereunder, (B) the remaining Purchase Price which amount shall be reduced according paid to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000Seller) shall be immediately returned to Buyers, and (D) Buyers Purchaser and the applicable Seller parties shall have no further rights, obligations, rights or remedies obligations under this Agreement with respect except to each such Closing Condition Excluded Property (except as may the extent expressly deemed to survive such partial termination); termination hereof, or (3ii) to waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) conditions precedent which exist for Seller’s benefit at the Closing and to proceed to Closing with Closing. For the avoidance of doubt, nothing herein contained shall affect the rights and/or remedies of the parties as provided in accordance with Article X hereof in the terms event of a default on the part of Purchaser or Seller under this Agreement and without any adjustment to the Purchase PriceAgreement.

Failure of Conditions. The conditions set forth in Sections 8.1 7.1 and 8.2, other than 7.2 may only be waived by the party in whose favor such conditions set forth exist (the “Favored Party”) in Sections 8.2(e) – writing or by the consummation of the Closing (owhich will be deemed a waiver of all such conditions), are referred to herein as “Closing Day Conditions,” and the conditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” . If a Party is not in default under this Agreement, and either (a) a Closing Day Condition any such condition is not satisfied on or waived as of before the Closing Date (as same may be duly extended pursuant to the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such original Closing Date, then the Favored Party benefiting from will, as its sole and exclusive remedy, have the right to: (a) if, on or before 3:00 p.m. Detroit, MI, time on the original Closing Date, the other party (the “Other Party”) notifies the Favored Party that the Other Party would nonetheless like to attempt to satisfy such condition (which each party in its capacity as the “Electing Party”) may either (i) waive such condition and proceed Other Party will have the right but not the obligation to Closing (subject to the terms and conditions of this Agreementdo), or (ii) extend the Closing Date with respect for up to any Property affected thirty (30) days to permit the Other Party to do so by such condition delivering written notice thereof to the Other Party within two (2) business days after the originally scheduled Closing Date, in which case the Closing Date will be the date that is ten (10) Business Days days after the earlier of the waiver or timely satisfaction of such condition or such earlier date as the parties agree to, (b) waive such condition, (c) terminate this Agreement by written notice thereof to the Other Party within two (2) business days after the originally scheduled Closing Date and close on or the remainder end of the Properties (subject cure period, if any, provided pursuant to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) above if, by the end of this Section 9.3 shall existsuch cure period, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing such condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to (1) if a Portfolio MAE exists, terminate this Agreement with respect to all remaining Propertiessatisfied, in which case this Agreement will automatically terminate, the Title Company shall promptly return the Deposit Escrow Agent shall promptly refund the remaining Deposit to BuyerPurchaser, and the Parties hereto shall have no parties will be relieved from any further rights or obligations under this Agreement with respect to such Properties (hereunder, except for such obligations that expressly survive the termination Surviving Obligations, or (d) if the failure of the condition is due to a breach by the Other Party of this Agreement); (2) terminate this Agreement with respect to , pursue any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or its remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive Article 12. If the failed closing condition (but without waiver failure of any other rights of such condition is not due to a breach by the Electing Other Party hereunder) and proceed to Closing in accordance with the terms of this Agreement and without any adjustment the Favored Party fails to extend the Purchase PriceClosing Date, if applicable, waive such condition, or terminate this Agreement pursuant to clauses (a), (b), and (c) of the preceding sentence, respectively, then the Favored Party will be deemed to have terminated this Agreement pursuant to such clause (c).

Failure of Conditions. The conditions set forth in Sections 8.1 and 8.2, other than If any of the conditions set forth in Sections 8.2(e) – (o)paragraphs 5.1 or 5.2 above are not timely satisfied or waived by the applicable party, are referred to herein as “Closing Day Conditions,” and for any reason other than the conditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default of Buyer or Seller under this Agreement, then this Agreement and either (a) a Closing Day Condition the rights and obligations of Buyer and Seller shall terminate and be of no further force or effect except as to those matters as specifically stated in this Agreement to survive expiration or early termination, in which case the Title Company is not satisfied or waived as hereby instructed to return promptly to Buyer the Deposit in accordance with paragraph 4.1 and to the party which placed such items into Escrow the documents that are held by the Title Company on the date of termination. Notwithstanding anything to the Closing Date (as same may be duly extended contrary contained in this Agreement, the Parties acknowledge that, if Buyer elects to extend the Due Diligence Period pursuant to paragraph 4.1.1 above, the terms hereof), or (b) a PreInitial Deposit and the Additional Deposit become non-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior refundable to such Closing Date, then the Party benefiting from such condition (the “Electing Party”) may either Buyer except (i) waive such condition and proceed to Closing in the event of a default by Seller hereunder (subject to in which event the terms and conditions provisions of this Agreementparagraph 6.2 shall apply), or (ii) extend in the Closing Date with respect event of a failure of any of Seller’s representations or warranties contained herein due to changed circumstances not caused by an act of Seller (as opposed to Seller’s breach or inaccuracy in any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder representation of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If Seller as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to (1) if a Portfolio MAE exists, terminate date of this Agreement with respect pursuant to all remaining Propertiesparagraph 8 below) as of the Close of Escrow, in which case Buyer shall have the option either to (i) proceed with the Closing and the Deposit Escrow Agent shall promptly refund be applied to the remaining Deposit to BuyerPurchase Price, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement); (2ii) terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to BuyersBuyer. Consequently, and (D) Buyers and except as set forth in the applicable Seller shall have no further rightspreceding sentence, obligations, or remedies under if Buyer terminates this Agreement with respect pursuant to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive this paragraph 5.3 at any time after Buyer’s election to extend the failed closing condition (but without waiver of any other rights of Due Diligence Period, Title Company hereby is instructed to promptly release the Electing Party hereunder) and proceed Deposit to Closing in accordance with the terms of this Agreement and without any adjustment to the Purchase PriceSeller.

Failure of Conditions. The In the event one or more of the closing conditions set forth in Sections 8.1 and 8.28.2 shall not be satisfied as of the Closing Date, then the party for whose benefit the closing condition exists shall have the option, to be exercised by written notice to the other party given as of the Closing Date, either to (i) waive the unsatisfied closing condition and proceed to Closing, or (ii) extending the Closing Date by such reasonable period as may be necessary to allow for satisfaction of the unsatisfied closing condition; provided such extended period shall not be later than thirty (30) days subsequent to the conditions set forth in Sections 8.2(e) – Outside Closing Date. In the event a party shall elect to proceed under clause (oii), are referred the notice of such election shall include the period for which the extension is made. If, after such extension is made, the closing condition remains unsatisfied at the end of the extended period, then the party for whose benefit the closing condition exists shall have the option, to herein be exercised by written notice to the other party given as “Closing Day Conditions,” of the end of such extended period, either to (x) waive the unsatisfied closing condition and the conditions set forth in Sections 8.2(eproceed to Closing, or (y) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default terminate this Agreement, whereupon Purchaser and Seller shall be released and relieved of all further obligations under this Agreement. The parties agree to use good faith efforts to satisfy each closing condition which is within such party's power or obligation to satisfy. Notwithstanding anything in this Agreement to the contrary, and either (a) if a Closing Day Condition is not satisfied or waived closing condition remains unsatisfied as of the Closing Date (as same may be duly extended pursuant a result of the failure of the party's whose obligation it is to the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then the Party benefiting from satisfy such condition (the “Electing "Defaulting Party”) may either (i) waive such condition and proceed to Closing (subject to the terms and conditions of this Agreement"), or (ii) extend then the Closing Date with respect to any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Defaulting Party shall elect be in default hereunder and the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Non-Defaulting Party shall have the right to (1) if a Portfolio MAE existsall rights and remedies allowed herein, terminate this Agreement with respect to all remaining Properties, at law and in which case the Deposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement); (2) terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) and proceed to Closing in accordance with the terms of this Agreement and without any adjustment to the Purchase Priceequity.

Failure of Conditions. The If any of the conditions set forth in Sections Section 8.1 is not timely satisfied or waived by Seller in writing, Seller shall have the right to terminate this Agreement by written notice given to Buyer within five (5) business days following the date for satisfaction of such condition. If any of the conditions set forth in Section 8.2 is not timely satisfied or waived by Buyer in writing, Buyer shall have the right to terminate this Agreement by written notice given to Seller within five (5) business days following the date for satisfaction of such condition. If either party shall so terminate this Agreement, this Agreement and 8.2the rights and obligations of Buyer and Seller shall terminate and be of no further force or effect, except as to those matters which are specifically stated in this Agreement to survive termination, and except as to the rights of the nondefaulting party if the failure of condition shall constitute a default by the other than party. In the event that this Agreement is terminated pursuant to the provisions of this Section 8.3, and neither Seller nor Buyer is in default pursuant to this Agreement, the Title Company is hereby instructed to return promptly to the party which placed such items into Escrow all funds (including the Deposit, and all accrued interest thereon, which is to be promptly returned to Buyer) and documents which are held by the Title Company on the date of termination. In the event of any such termination, the Option Payment shall be retained by Seller. Notwithstanding any of the above provisions of Section 8.3 to the contrary, in the event of a termination of this Agreement by reason of a failure of the conditions set forth in Sections 8.2(e) – 8.1.5, 8.2.5 (oby reason of a default of Xxxxx Xxxxxxxx only), are referred or 8.2.7, Seller shall return the Option Payment to herein as “Closing Day Conditions,” and Buyer within two (2) business days thereafter. Further, in the event of a termination of this Agreement by reason of the failure of the conditions set forth in Sections 8.2(e) – (o) are referred 8.1.6 and 8.2.8 if Buyer has previously paid the Option Payment to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this AgreementSeller, and either (a) a Closing Day Condition is not satisfied or waived as of the Closing Date (as same may be duly extended pursuant Seller shall return such Option Payment to the terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of such Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, then the Party benefiting from such condition (the “Electing Party”) may either (i) waive such condition and proceed to Closing (subject to the terms and conditions of this Agreement), or (ii) extend the Closing Date with respect to any Property affected by such condition to the date that is ten (10) Business Days after such Closing Date and close on the remainder of the Properties (subject to the terms and conditions of this Agreement) on such Closing Date. If the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or (b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to (1) if a Portfolio MAE exists, terminate this Agreement with respect to all remaining Properties, in which case the Deposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement); within two (2) terminate this Agreement with respect to any Property with respect to which business days following the date of termination. In the event of a closing condition has not been satisfied or waived (each such excluded Propertydefault by Buyer, a “Closing Condition Excluded Property”) and close on the remainder of the Properties on the Outside Closing Date, whereupon (A) Buyers shall proceed to Closing (subject to the terms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion return of the Deposit equal to and the product of (x) $40,000,000 and (y) (the Allocated Purchase Price disposition of the Closing Condition Excluded Property(ies) divided Option Payment shall be governed by $1,320,000,000) the provisions of Section 19.1. In the event of a default by Seller, the Deposit and all interest accrued thereon and the Option Payment shall be returned to Buyers, and Buyer within two (D2) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the failed closing condition (but without waiver of any other rights of the Electing Party hereunder) and proceed to Closing in accordance with the terms of this Agreement and without any adjustment to the Purchase Pricebusiness days thereafter.