Common use of Election Not to Close Clause in Contracts

Election Not to Close. Buyer or Seller (in such capacity, the “Updating Party”) may, upon updating any schedule under Section 3.5.1, at its election, invoke the procedures set forth under this Section 3.5.2 in order to allow an early determination as to whether the Updating Information may permit the other Party (in such capacity, the “Non-Updating Party”) not to consummate the transaction contemplated herein in reliance upon the conditions to the Non-Updating Party’s obligation to consummate the transaction as set forth in this Article 3. The Non-Updating Party shall have the right to review the Updating Information for a period of five (5) Business Days after receipt thereof (the “Terminating Notice Period”). At any time within the Terminating Notice Period, the Non-Updating Party shall have the right to terminate this Agreement if, in the Non-Updating Party’s sole discretion, the Updating Information discloses that a condition to the Non-Updating Party’s obligation to consummate the transactions set out in Article 3 hereof is not capable of satisfaction within a reasonable time period. The Non-Updating Party shall exercise its termination right pursuant to the foregoing sentence by delivering notice to the Updating Party specifying in reasonable detail the Updating Information forming the basis for the decision to terminate, the condition which is not capable of satisfaction and the reason therefor. Such termination right shall be the Non- Updating Party’s sole remedy in respect of the incorrectness or a breach of a representation and warranty as disclosed by such Updating Information if the procedures 21 Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. set forth in this Section 3.5.2 have been invoked by the Updating Party in connection therewith. For the avoidance of doubt, Buyer shall not be permitted to terminate this Agreement and Seller shall not otherwise be deemed to breach this Agreement as a result of any Updating Information that relates to any actions that are expressly required by this Agreement or consented to by Buyer pursuant to Section 6.2.1.

Election Not to Close. Buyer or Seller Notwithstanding the foregoing, either Member (in such capacity, the an “Updating PartyOpt-Out Member”) maymay elect not to proceed with the acquisition of the Property if any of the following events occurs (an “Opt-Out Event”): (a) the terms and conditions of the existing Mortgage Loan are not restructured in a manner reasonably acceptable to such Member; or (b) a casualty or condemnation occurs with respect to the Property or the Seller defaults under the Purchase and Sale Agreement, upon updating in any schedule such case, that would permit the purchaser under Section 3.5.1, at its the Purchase and Sale Agreement to terminate such agreement and receive the Deposit. A Member must make such election, invoke if at all, by delivering written notice of its election not to proceed with the procedures set forth under this Section 3.5.2 in order acquisition of the Property to allow an early determination as to whether the Updating Information may permit the other Party Member within ten (10) days after the occurrence of the Opt-Out Event. (1) If the Opt-Out Event occurs and there is only one Opt-Out Member, then (a) the Opt-Out Member shall withdraw from the Company and the other Member shall be the sole Member of the Company, and (b) the Opt-Out Member shall not be entitled to be reimbursed for any of its Pursuit Costs or any portion of the Deposit funded by the Opt-Out Member (or its Affiliate) unless the Company or an Affiliate of the remaining Member acquires the Property, in such capacitywhich case, only the “Nonportion of the Deposit funded by the Opt-Updating Party”) not to consummate the transaction contemplated herein in reliance upon the conditions Out Member shall be reimbursed to the NonOpt-Updating Party’s obligation to consummate the transaction as set forth in this Article 3. The Non-Updating Party shall have the right to review the Updating Information for a period of Out Member, within five (5) Business Days days after receipt thereof such acquisition. (2) If the Opt-Out Event occurs and both Members elect to be Opt-Out Members, then each Member shall (a) be responsible for its Pursuit Costs with no reimbursement obligation of the Company or any Member, and (b) fund its share (based on Percentage Interests) of all dissolution costs of the Company, including, without limitation, any costs incurred in pursuing a release of any refundable portion of the Deposit under the Purchase and Sale Agreement, provided all Members Approve pursuing such release. If one Member elects to pursue the release of all or any portion of the Deposit (the “Terminating Notice PeriodPursuit Member”). At any time within the Terminating Notice Period, the Non-Updating Party shall have the right to terminate this Agreement if, in the Non-Updating Party’s sole discretion, the Updating Information discloses that a condition to the Non-Updating Party’s obligation to consummate the transactions set out in Article 3 hereof is not capable of satisfaction within a reasonable time period. The Non-Updating Party shall exercise its termination right pursuant to the foregoing sentence by delivering notice to the Updating Party specifying in reasonable detail the Updating Information forming the basis for the decision to terminate, the condition which is not capable of satisfaction ) and the reason therefor. Such termination right other Member does not Approve of such pursuit, then the Pursuit Member may, at its expense, pursue the release of the Deposit and shall be the Non- Updating Party’s sole remedy in respect entitled to receive all of the incorrectness or a breach of a representation and warranty as disclosed by such Updating Information if the procedures 21 Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. set forth in this Section 3.5.2 have been invoked by the Updating Party in connection therewith. For the avoidance of doubt, Buyer shall not be permitted to terminate this Agreement and Seller shall not otherwise be deemed to breach this Agreement as a result of any Updating Information that relates to any actions that are expressly required by this Agreement or consented to by Buyer pursuant to Section 6.2.1released Deposit.

Election Not to Close. Buyer or Seller (in such capacity, the “Updating Party”) may, upon Upon updating any schedule under Section 3.5.13.5(a), the Party updating such schedule (the Updating Party) may, at its electionelection (but shall not be obligated to), invoke the procedures set forth under this Section 3.5.2 3.5(b) in order to allow an early determination as to whether the Updating Information Information, together with all previously provided Updating Information, may permit the other Party party (in such capacity, the “Non-Updating Party”) not to consummate the transaction transactions contemplated herein in reliance upon the conditions to the Non-Updating Party’s obligation to consummate the transaction transactions as set forth in this Article 3ARTICLE III. The In the event an Updating Party elects to invoke the procedures set forth under this Section 3.5(b), such Updating Party shall promptly deliver written notice of such election (an Updating Election Notice) to the Non-Updating Party. Upon receipt of an Updating Election Notice, the Non-Updating Party shall have the right to review the Updating Information Information, together with all previously provided Updating Information, for a period of five (5) ten Business Days after receipt thereof (the “Terminating Notice Period”). At any time within the Terminating Notice Period, the Non-Updating Party shall have the right to terminate this Agreement if, in the Non-Updating Party’s sole discretion, by written notice to the Updating Information Party if the Updating Information, together with all previously provided Updating Information, discloses that a condition precedent to the Non-Updating Party’s obligation to consummate the transactions set out in Article 3 hereof is this ARTICLE III would not capable be satisfied as of satisfaction within a reasonable time periodthe Closing Date after taking into account such Updating Information. The Such written notice from the Non-Updating Party shall exercise its termination right pursuant to the foregoing sentence by delivering notice to the Updating Party specifying specify in reasonable detail the Updating Information forming the basis for the decision to terminate, terminate and the condition which is would not capable of satisfaction be satisfied and the reason therefor. Such termination right shall be the Non- Non-Updating Party’s sole remedy in respect of the incorrectness or a breach of a representation and warranty as disclosed by such Updating Information if the procedures 21 Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. set forth in this Section 3.5.2 3.5(b) have been invoked by the Updating Party in connection therewith. For If such termination notice is not received within the avoidance Terminating Notice Period, the provisions of doubtSection 3.5(c) shall apply. Notwithstanding the foregoing or anything to the contrary in this Agreement, Buyer shall not be permitted have no right to terminate this Agreement and Seller shall not otherwise be deemed pursuant to breach this Agreement as a result of Section 3.5(b) or to fail to consummate the transactions contemplated --24- hereby due to any Updating Information that relates to any actions that are expressly required by this Agreement or consented to by Buyer describes the taking of a Required Action (if any) pursuant to Section 6.2.16.2(a).

Election Not to Close. Buyer or Seller (in such capacity, the “Updating Party”) may, upon updating any schedule under Section 3.5.1, at its election, invoke the procedures set forth under this Section 3.5.2 in order to allow an early determination as to whether the Updating Information may permit the other Party (in such capacity, the “Non-Updating Party”) not to consummate the transaction contemplated herein in reliance upon the conditions to the Non-Updating Party’s obligation to consummate the transaction as set forth in this Article 3. The Non-Updating Party shall have the right to review the Updating Information for a period of five (5) Business Days after receipt thereof (the “Terminating Notice Period”). At any time within the Terminating Notice Period, the Non-Updating Party shall have the right to terminate this Agreement if, in the Non-Updating Party’s sole discretion, the Updating Information discloses that a condition to the Non-Updating Party’s obligation to consummate the transactions set out in Article 3 hereof is not capable of satisfaction within a reasonable time period. The Non-Updating Party shall exercise its termination right pursuant to the foregoing sentence by delivering notice to the Updating Party specifying in reasonable detail the Updating Information forming the basis for the decision to terminate, the condition which is not capable of satisfaction and the reason therefor. Such termination right shall be the Non- Non-Updating Party’s sole remedy in respect of the incorrectness or a breach of a representation and warranty as disclosed by such Updating Information if the procedures 21 Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. set forth in this Section 3.5.2 have been invoked by the Updating Party in connection therewith. For the avoidance of doubt, Buyer shall not be permitted to terminate this Agreement and Seller shall not otherwise be deemed to breach this Agreement as a result of any Updating Information that relates to any actions that are expressly required by this Agreement or consented to by Buyer pursuant to Section 6.2.1.