Common use of Failure of a Condition Clause in Contracts

Failure of a Condition. 7.3.1 If any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, has not been satisfied on or before the Closing Date, then Purchaser shall give notice to Seller of the condition or conditions that Purchaser asserts are not satisfied. Purchaser shall have the right to waive the unsatisfied condition or conditions by written notice to Seller and Escrow Agent given on or before the Closing Date, in which case Purchaser shall have the right to extend the Closing Date by one (1) Business Day. Seller shall have the right to extend the Closing Date for a period of up to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith efforts to close prior to the end of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before the Closing Date, then Seller shall give notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date to satisfy the unsatisfied condition for a period of up to seven (7) additional days, by giving written notice thereof to Seller and Escrow Agent within one (1) Business Day after the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurred, in which event the Closing Date shall be the date that is five (5) Business Days after Purchaser’s receipt of Seller’s waiver notice. Notwithstanding the foregoing or anything set forth herein to the contrary, in no event shall the Closing Date be extended for Purchaser’s failure to fund into escrow the balance of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller in writing in Seller’s sole and absolute discretion.

Failure of a Condition. 7.3.1 If (i) In the event that any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, Closing has not been satisfied on or before (if applicable) the Closing Date, then Purchaser the party who would have benefited from having such condition to Closing satisfied (the “Unsatisfied Party”) shall give notice to Seller the other party of the condition or conditions that Purchaser the Unsatisfied Party asserts are not satisfiedsatisfied (each, individually, a “Failed Condition”). Purchaser shall have the right to waive the unsatisfied condition or conditions by written notice to Seller and Escrow Agent given on or before the Closing DateIn that event, in which case Purchaser shall have the right to extend the Closing Date by one shall be extended for ten (110) Business Day. Seller shall have days (the right “Satisfaction Period”) to extend allow the Closing Date for a period of up other party to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith make commercially reasonable efforts to close prior to the end of satisfy any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to PurchaserFailed Condition. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, Failed Condition has not been satisfied on or before within the Closing DateSatisfaction Period, then Seller shall give notice the Unsatisfied Party may elect to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date to satisfy the unsatisfied condition for a period of up to seven (7) additional days, waive such Failed Condition by giving written notice thereof to Seller and Escrow Agent the other party (the “Waiver Notice”) within one three (13) Business Day after business days following the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurredSatisfaction Period (the “Waiver Period”), in which event the parties shall proceed to Closing Date as contemplated hereunder. If the Unsatisfied Party does not give the Waiver Notice to the other party within the Waiver Period, then the Unsatisfied Party shall be deemed to have elected to terminate this Agreement, whereupon neither party shall have any further rights or obligations hereunder other than any Surviving Obligations and, if the date that Unsatisfied Party is five (5) Business Days after Purchaser’s receipt of Seller’s waiver noticethe Buyer, the Buyer shall be entitled to the Deposit. Notwithstanding the foregoing foregoing, if such Failed Condition is due to a default or anything set forth herein to the contrary, in no event shall the Closing Date be extended for Purchaser’s failure to fund into escrow the balance breach by one of the Purchase Price due at Closing as required parties of a covenant, representation or warranty contained in this Agreement (it being understood that a breach of a covenant, representation or warranty under this Agreement shall constitute both a Failed Condition and a breach or default under this Agreement), unless expressly agreed then the Unsatisfied Party shall have those rights and remedies set forth in Section 8 above. (ii) If the transaction contemplated by this Agreement closes, the parties shall be deemed to have waived any and all unmet or unsatisfied conditions, other than those that constitute Surviving Obligations; provided, however, if Seller has actual knowledge that any representation or warranty made by Buyer in Section 12 is untrue, or if Buyer has actual knowledge that any representation or warranty made by Seller in writing in Seller’s sole Section 13 is untrue, and absolute discretionthe party with knowledge of the untrue representation or warranty proceeds to Closing, then such party shall be deemed to have waived any claim it might otherwise have after the Closing against the other party with respect to such representation or warranty. 16.

Failure of a Condition. 7.3.1 7.4.1. If any condition precedent to PurchaserInvestor’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, has not been satisfied on or before the Closing Date, then Purchaser Investor shall give notice to Seller BCSP of the condition or conditions that Purchaser Investor asserts are not satisfied. Purchaser If the conditions specified in such notice are not satisfied within ten (10) Business Days after receipt of such notice (with the Closing Date automatically being extended to accommodate such ten (10) Business Day period, but in no event beyond the Outside Closing Date without BCSP’s approval)), then Investor may terminate this Agreement by written notice to BCSP and Escrow Agent, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Deposit shall be returned to Investor. Notwithstanding anything contained herein to the contrary, if any of the conditions precedent to Investor’s obligation to close, as set forth in Section 7.1 of this Agreement, are not satisfied within the ten (10) Business Day period specified above and the same, in BCSP’s reasonable judgment, are reasonably susceptible of being cured, BCSP or Investor, as the case may be, shall have the right to extend such period in which to satisfy the unsatisfied condition for a period of up to forty-five (45) additional days, by giving written notice thereof to Investor or BCSP, as applicable, and Escrow Agent within the initial ten (10) Business Day period referenced above. Investor shall have the right to waive the unsatisfied condition or conditions by written notice to Seller and Escrow Agent given on or before the Closing Date, in which case Purchaser shall have the right to extend the Closing Date by one (1) Business Day. Seller shall have the right to extend the Closing Date for a period of up to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith efforts to close prior to the end of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before the Closing Date, then Seller shall give notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date to satisfy the unsatisfied condition for a period of up to seven (7) additional days, by giving written notice thereof to Seller and Escrow Agent within one (1) Business Day after the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser BCSP and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurred, in which event the Closing Date shall be the date that is five (5) Business Days after PurchaserBCSP’s receipt of SellerInvestor’s waiver notice. If the Closing Date is extended pursuant to this paragraph, then the Closing Date shall be the date that is the earlier to occur of five (5) Business Days after (a) the date that the unsatisfied condition has been satisfied, or (b) BCSP’s receipt of Investor’s waiver notice. It is understood and agreed that the failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by BCSP hereunder unless such failed condition was caused by BCSP’s willful and intentional actions in violation of its covenants set forth in Section 6.1.1 hereof. 7.4.2. If any condition precedent to BCSP’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before the Closing Date, then BCSP shall give notice to Investor of the condition or conditions that BCSP asserts are not satisfied. If the conditions specified in such notice are not satisfied within ten (10) Business Days after receipt of such notice (with the Closing Date automatically being extended to accommodate such ten (10) Business Day period, but in no event beyond the Outside Closing Date without BCSP’s approval), then BCSP may terminate this Agreement by written notice to Investor and Escrow Agent, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Deposit shall be returned to Investor (unless the applicable conditions are not satisfied due to a default by Investor under this Agreement, in which case the Deposit shall be paid to BCSP). Notwithstanding anything contained herein to the contrary, if any of the conditions precedent to BCSP’s obligation to close, as set forth in Section 7.2 of this Agreement, are not satisfied within the ten (10) Business Day period specified above and the same, in BCSP’s reasonable judgment, are reasonably susceptible of being cured, BCSP may be shall have the right to extend such period in which to satisfy the unsatisfied condition for a period of up to forty-five (45) additional days, by giving written notice thereof to Investor, and Escrow Agent within the initial ten (10) Business Day period referenced above. BCSP shall have the right to waive the unsatisfied condition or conditions by written notice to Investor and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurred, in which event the Closing Date shall be the date that is five (5) Business Days after Investor’s receipt of BCSP’s waiver notice. If the Closing Date is extended pursuant to this paragraph, then the Closing Date shall be the date that is the earlier to occur of five (5) Business Days after (a) the date that the unsatisfied condition has been satisfied, or (b) Investor’s receipt of BCSP’s waiver notice. Notwithstanding the foregoing or anything set forth herein to the contrary, in no event shall the Closing Date be extended for Purchaserwith respect to Investor’s failure to fund into escrow the balance of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller BCSP in writing in SellerBCSP’s sole and absolute discretion.

Failure of a Condition. 7.3.1 If 8.3.1 In the event that any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, Closing has not been satisfied on or before the Closing Date, then Purchaser the party whose conditions to Closing have not been satisfied (the “Unsatisfied Party”) shall give notice to Seller the other party of the condition or conditions that Purchaser which the Unsatisfied Party asserts are not satisfied. If the conditions specified in such notice are not satisfied within ten (10) Business Days after receipt of such notice, then the party whose condition precedent was not satisfied may terminate this Agreement, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Deposit shall be returned to Purchaser; provided, however, that if such failure of a condition is due to a default by one of the parties, the disposition of the Deposit shall be governed solely by Article 11 of this Agreement and not by this Section 8.3.1. Notwithstanding anything contained herein to the contrary, if any of the conditions precedent to Purchaser’s obligation to close, as set forth in Section 8.1 of this Agreement, are not satisfied within the ten (10) Business Day period specified above and the same are reasonably susceptible of being cured, Seller shall have the right to extend such period in which to satisfy the unsatisfied condition for a period of up to thirty (30) additional days, by giving notice thereof to Purchaser within such ten (10) Business Day period. Further, Purchaser shall have the right to waive the unsatisfied condition or conditions conditions, by written notice to Seller and Escrow Agent given on or before the Closing Date, in which case Purchaser shall have the right to extend the Closing Date by one (1) Business Day. Seller shall have the right to extend the Closing Date for a period of up to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith efforts to close prior to the end of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before the Closing Date, then Seller shall give notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date to satisfy the unsatisfied condition for a period of up to seven (7) additional days, by giving written notice thereof to Seller and Escrow Agent within one (1) Business Day after the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period period, without satisfaction having occurred, in which event the Closing Date shall be the date that which is five (5) Business Days after PurchaserSeller’s receipt of SellerPurchaser’s waiver notice. Notwithstanding The foregoing notice and cure periods shall not apply to a breach of Sections 9.2 or 9.3. 8.3.2 If the foregoing transaction contemplated by this Agreement closes, the parties shall be deemed to have waived any and all unmet or anything set forth herein to unsatisfied conditions, other than any unmet or unsatisfied conditions arising out of a breach by either party of any of its representations and warranties hereunder of which the contrary, in other party has no event shall the Closing Date be extended for Purchaser’s failure to fund into escrow the balance knowledge as of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller in writing in Seller’s sole and absolute discretionClosing.

Failure of a Condition. 7.3.1 If 8.3.1 In the event that any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, Closing has not been satisfied on or before the Closing Date, then Purchaser the party whose conditions to Closing have not been satisfied (the “Unsatisfied Party”) shall give notice to Seller the other party of the condition or conditions that Purchaser which the Unsatisfied Party asserts are not satisfied. Purchaser shall have If the right to waive the unsatisfied condition or conditions by written specified in such notice to Seller and Escrow Agent given on or before the Closing Date, in which case Purchaser shall have the right to extend the Closing Date by one are not satisfied within ten (110) Business Day. Seller shall have the right to extend the Closing Date for a period of up to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ Days after Seller’s receipt of such notice if Seller is unable notice, then the party whose condition precedent was not satisfied may terminate this Agreement, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Deposit shall be returned to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s)Purchaser; provided, however, that if the Closing Date such failure of a condition is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice due to a default by one of the extended Closing Date (further provided that Purchaser parties, the disposition of the Deposit shall be governed solely by Article 11 of this Agreement and Seller shall use good faith efforts to close prior not by this Section 8.3.1. Notwithstanding anything contained herein to the end contrary, if any of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition conditions precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreementclose, as set forth in Section 7.2 8.1 of this Agreement, has are not been satisfied on or before within the Closing Dateten (10) Business Day period specified above and the same are reasonably susceptible of being cured (as reasonably determined by Seller), then Seller shall give notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. and Purchaser shall each have the right to extend the Closing Date such period in which to satisfy the unsatisfied condition for a period of up to seven thirty (730) additional days, by giving written notice thereof to Seller and Escrow Agent the other party within one such ten (110) Business Day after the Designated Closing Dateperiod. Further, but in no event beyond December 31, 2012. Seller Purchaser shall have the right to waive Table of Contents the unsatisfied condition or conditions conditions, by written notice to Purchaser and Escrow Agent given Seller within five (5) Business Days after expiration of the applicable satisfaction period period, without satisfaction having occurred, in which event the Closing Date shall be the date that which is five (5) Business Days after PurchaserSeller’s receipt of SellerPurchaser’s waiver notice. Notwithstanding It is understood and agreed that the foregoing or anything failure of any condition set forth herein in Section 8.1 of this Agreement (except for Section 8.1.5) shall not constitute a default, breach of a covenant or other failure to perform by Seller hereunder. Further, and notwithstanding anything to the contrarycontrary contained herein, in no event shall the Closing Date conditions set forth in Sections 8.1.1 and 8.2.1 be extended for Purchaser’s failure waived by either Purchaser or Seller, respectively. 8.3.2 If the transaction contemplated by this Agreement closes, the parties shall be deemed to fund into escrow have waived any and all unmet or unsatisfied conditions, other than any unmet or unsatisfied conditions arising out of a breach by either party of any of its representations and warranties hereunder of which the balance other party has no actual knowledge as of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller in writing in Seller’s sole and absolute discretionClosing.

Failure of a Condition. 7.3.1 If (i) In the event that any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, Closing has not been satisfied on or before (if applicable) the Closing Date, then Purchaser the party who would have benefited from having such condition to Closing satisfied (the “Unsatisfied Party”) shall give notice to Seller the other party of the condition or conditions that Purchaser the Unsatisfied Party asserts are not satisfiedsatisfied (each, individually, a “Failed Condition”). Purchaser shall have the right to waive the unsatisfied condition or conditions by written notice to Seller and Escrow Agent given on or before the Closing DateIn that event, in which case Purchaser shall have the right to extend the Closing Date by one shall be extended for ten (110) Business Day. Seller shall have days (the right “Satisfaction Period”) to extend allow the Closing Date for a period of up other party to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith make commercially reasonable efforts to close prior to the end of satisfy any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to PurchaserFailed Condition. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, Failed Condition has not been satisfied on or before within the Closing DateSatisfaction Period, then Seller shall give notice the Unsatisfied Party may elect to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date to satisfy the unsatisfied condition for a period of up to seven (7) additional days, waive such Failed Condition by giving written notice thereof to Seller and Escrow Agent the other party (the “Waiver Notice”) within one three (13) Business Day after business days following the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurredSatisfaction Period (the “Waiver Period”), in which event the parties shall proceed to Closing Date as contemplated hereunder. If the Unsatisfied Party does not give the Waiver Notice to the other party within the Waiver Period, then the Unsatisfied Party shall be deemed to have elected to terminate this Agreement, whereupon neither party shall have any further rights or obligations hereunder other than any Surviving Obligations and, if the date that Unsatisfied Party is five (5) Business Days after Purchaser’s receipt of Seller’s waiver noticethe Buyer, the Buyer shall be entitled to the Deposit. Notwithstanding the foregoing foregoing, if such Failed Condition is due to a default or anything set forth herein to the contrary, in no event shall the Closing Date be extended for Purchaser’s failure to fund into escrow the balance breach by one of the Purchase Price due at Closing as required parties of a covenant, representation or warranty contained in this Agreement (it being understood that a breach of a covenant, representation or warranty under this Agreement shall constitute both a Failed Condition and a breach or default under this Agreement), unless expressly agreed then the Unsatisfied Party shall have those rights and remedies set forth in Section 8 above. (ii) If the transaction contemplated by this Agreement closes, the parties shall be deemed to have waived any and all unmet or unsatisfied conditions, other than those that constitute Surviving Obligations; provided, however, if Seller has actual knowledge that any representation or warranty made by Buyer in Section 12 is untrue, or if Buyer has actual knowledge that any representation or warranty made by Seller in writing in Seller’s sole Section 13 is untrue, and absolute discretionthe party with knowledge of the untrue representation or warranty proceeds to Closing, then such party shall be deemed to have waived any claim it might otherwise have after the Closing against the other party with respect to such representation or warranty.

Failure of a Condition. 7.3.1 8.3.1 If any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 8.1 of this Agreement, has not been satisfied on or before the Closing Date, then Purchaser shall give written notice to Seller of the condition or conditions that Purchaser asserts are not satisfied. If the conditions specified in such notice are not satisfied within ten (10) Business Days after receipt of such notice (with the Closing Date automatically being extended to accommodate such ten (10) Business Day period, then Purchaser may terminate this Agreement by written notice to Seller and Escrow Agent, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Deposit shall be returned to Purchaser. Notwithstanding anything contained herein to the contrary, if any of the conditions precedent to Purchaser’s obligation to close, as set forth in Section 8.1 of this Agreement, cannot reasonably be satisfied within the ten (10) Business Day period specified above, but the same are reasonably susceptible of being cured and Seller is diligently proceeding to cure the same, Seller shall have the right to extend such period in which to satisfy the unsatisfied condition for a period of up to thirty (30) additional days, by giving written notice thereof to the Purchaser and Escrow Agent within the initial ten (10) Business Day period referenced above. Purchaser shall have the right to waive the unsatisfied condition or conditions by written notice to Seller and Escrow Agent given on or before the Closing Date, in which case Purchaser shall have the right to extend the Closing Date by one (1) Business Day. Seller shall have the right to extend the Closing Date for a period of up to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ Days after expiration of the applicable satisfaction period without satisfaction having occurred, in which event the Closing Date shall be the date that is five (5) Business Days after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if Purchaser’s waiver notice. If the Closing Date is extended beyond December 31pursuant to this paragraph, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of then the extended Closing Date shall be the date that is the earlier to occur of five (further provided 5) Business Days after (a) the date that Purchaser the unsatisfied condition has been satisfied, or (b) Seller’s receipt of Purchaser’s waiver notice. It is understood and Seller shall use good faith efforts to close prior to agreed that the end of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 8.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. . 8.3.2 If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 8.2 of this Agreement, has not been satisfied on or before the Closing Date, then Seller shall give written notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have If the right to extend conditions specified in such notice are not satisfied within ten (10) Business Days after receipt of such notice (with the Closing Date automatically being extended to satisfy the unsatisfied condition for a period of up to seven accommodate such ten (7) additional days, by giving written notice thereof to Seller and Escrow Agent within one (110) Business Day after period), then Seller may terminate this Agreement by written notice to Purchaser and Escrow Agent, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Designated Closing DateDeposit shall be returned to Purchaser (unless the applicable conditions are not satisfied due to a default by Purchaser under this Agreement, but in no event beyond December 31, 2012which case the Deposit shall be paid to Seller). Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurred, in which event the Closing Date shall be the date that is five (5) Business Days after Purchaser’s receipt of Seller’s waiver notice. If the Closing Date is extended pursuant to this paragraph, then the Closing Date shall be the date that is the earlier to occur of five (5) Business Days after (a) the date that the unsatisfied condition has been satisfied, or (b) Purchaser’s receipt of Seller’s waiver notice. Notwithstanding the foregoing or anything set forth herein to the contrary, in no event shall the Closing Date be extended for with respect to Purchaser’s failure to fund into escrow the balance of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller in writing in Seller’s sole and absolute discretion; it being expressly understood and agreed that the failure of Purchaser to fund into escrow the balance of the Purchase Price due at Closing shall constitute a default under this Agreement. 8.3.3 If the transaction contemplated by this Agreement closes, the parties shall be deemed to have waived any and all unmet or unsatisfied conditions, other than any unmet or unsatisfied conditions arising out of a breach by either party of any of its representations and warranties hereunder of which the other party has no knowledge as of Closing.

Failure of a Condition. 7.3.1 If 8.3.1 In the event that any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, Closing has not been satisfied on or before the Closing Date, then Purchaser the party whose conditions to Closing have not been satisfied (the “Unsatisfied Party”) shall give notice to Seller the other party of the condition or conditions that Purchaser which the Unsatisfied Party asserts are not satisfied. If the conditions specified in such notice are not satisfied within ten (10) Business Days after receipt of such notice, then the party whose condition precedent was not satisfied may terminate this Agreement, whereupon neither party shall have any further rights or obligations hereunder (other than any obligations of either party that expressly survive termination) and the Deposit shall be returned to Purchaser; provided, however, that if such failure of a condition is due to a default by one of the parties, the disposition of the Deposit shall be governed solely by Article 11 of this Agreement and not by this Section 8.3.1. Notwithstanding anything contained herein to the contrary, if any of the conditions precedent to Purchaser’s obligation to close, as set forth in Section 8.1 of this Agreement, are not satisfied within the ten (10) Business Day period specified above and the same are reasonably susceptible of being cured, Seller shall have the right to extend such period in which to satisfy the unsatisfied condition for a period of up to thirty (30) additional days, by giving notice thereof to Purchaser within such ten (10) Business Day period. Further, Purchaser shall have the right to waive the unsatisfied condition or conditions conditions, by written notice to Seller and Escrow Agent given on or before the Closing Date, in which case Purchaser shall have the right to extend the Closing Date by one (1) Business Day. Seller shall have the right to extend the Closing Date for a period of up to six (6) months by delivering written notice to Seller and Escrow Agent within five (5) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith efforts to close prior to the end of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before the Closing Date, then Seller shall give notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date to satisfy the unsatisfied condition for a period of up to seven (7) additional days, by giving written notice thereof to Seller and Escrow Agent within one (1) Business Day after the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive the unsatisfied condition or conditions by written notice to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period period, without satisfaction having occurred, in which event the Closing Date shall be the date that which is five (5) Business Days after PurchaserSeller’s receipt of SellerPurchaser’s waiver notice. Notwithstanding . 8.3.2 If the foregoing transaction contemplated by this Agreement closes, the parties shall be deemed to have waived any and all unmet or anything set forth herein to unsatisfied conditions, other than any unmet or unsatisfied conditions arising out of a breach by either party of any of its representations and warranties hereunder of which the contrary, in other party has no event shall the Closing Date be extended for Purchaser’s failure to fund into escrow the balance knowledge as of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller in writing in Seller’s sole and absolute discretionClosing.

Failure of a Condition. 7.3.1 If any condition precedent to Purchaser’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.1 of this Agreement, Closing has not been satisfied on or before the Closing Date, then Purchaser shall give notice the party that would have benefited from having such condition to Seller of Closing satisfied (the condition or conditions that Purchaser asserts are not satisfied. Purchaser “Unsatisfied Party”) shall have the right to waive the unsatisfied condition or conditions by written give notice to Seller and Escrow Agent given the other party, on or before the Closing Date, in which case Purchaser shall of each condition that the Unsatisfied Party asserts has not been satisfied or be deemed to have the waived its right to extend object. In such notice, the Closing Date by one Unsatisfied Party may also elect (1i) Business Day. Seller shall have the right to extend the Closing Date for a reasonable period of up time (not to six exceed fifteen (6) months by delivering written notice to Seller and Escrow Agent within five (515) Business Days’ after Seller’s receipt of such notice if Seller is unable to meet the conditions to close under this Agreement or the Other Phases agreements, and is diligently working to be able to close such phase(s); provided, that if the Closing Date is extended beyond December 31, 2012, Purchaser is given notice not less than sixty (60) days’ advanced notice of the extended Closing Date (further provided that Purchaser and Seller shall use good faith efforts to close prior to the end of any such sixty (60) day period). The failure of any condition set forth in Section 7.1 hereof that is not reasonably susceptible of being cured within the time allotted shall not constitute a default, breach of a covenant, or other failure to perform by Seller hereunder if caused by a third party (other than Seller’s lender) unless such failed condition was caused by Seller’s negligence, or willful and intentional actions or omissions in violation of its covenants set forth in this Agreement, in which case such shall be a Seller default entitling Purchaser to exercise its rights under Article 10. In the event Seller exercises its right to extend the Closing Date in order to meet a condition precedent to Purchaser’s obligation to close under this preceding paragraph and Closing does not occur on or before December 31, 2012, Escrow Agent shall promptly refund the Extension Payment (together with any interest accrued thereon) to Purchaser. If Seller has exercised its right to extend allow the Closing Date and Closing does not occur on or before June 21, 2013, Escrow Agent shall promptly refund the Deposit (together with any interest accrued thereon) to Purchaser. If any condition precedent to Seller’s obligation to close the transactions contemplated by this Agreement, as set forth in Section 7.2 of this Agreement, has not been satisfied on or before the Closing Date, then Seller shall give notice to Purchaser of the condition or conditions that Seller asserts are not satisfied. Purchaser shall have the right to extend the Closing Date other party to satisfy the unsatisfied condition for a period of up to seven (7) additional days, by giving written notice thereof to Seller and Escrow Agent within one (1) Business Day after the Designated Closing Date, but in no event beyond December 31, 2012. Seller shall have the right to waive unless the unsatisfied condition or conditions by written notice relates to Purchaser and Escrow Agent given within five (5) Business Days after expiration of the applicable satisfaction period without satisfaction having occurredan unsatisfied Assumption Contingency, in which event the Closing Date provisions of Section 7.01(d) shall apply, or unless the unsatisfied condition relates to a required governmental approval or notice requirement, in which case the period for satisfying the condition shall be extended as reasonably necessary for the date parties to obtain such approval or deliver the required notice), (ii) to waive such failed condition in a writing delivered to the Escrow Agent and the party who failed to meet such condition and proceed to Closing as contemplated hereunder, or (iii) if the Unsatisfied Party is any Seller, to terminate this Agreement only as to the particular Facility owned or operated by such Seller with respect to which a condition was not met, whereupon neither party shall have any further rights or obligations hereunder as to such Facility (other than any obligations of either party that is five expressly survive termination), and the portion of the Deposit applicable to the terminated Facility shall be reallocated among the remaining Facilities (5) Business Days after Purchaser’s receipt of Seller’s waiver noticeunless all other Facilities have closed). Notwithstanding the foregoing or anything foregoing, Sellers may not terminate this Agreement under this Section 7.03 with respect to more than two (2) such Facilities without terminating this Agreement with respect to all of the Facilities. If such failure of a condition is due to a material default by one of the parties (after notice and an opportunity to cure), the non-defaulting party shall have those rights and remedies set forth herein to the contrary, in no event shall the Closing Date be extended for Purchaser’s failure to fund into escrow the balance of the Purchase Price due at Closing as required under this Agreement, unless expressly agreed by Seller in writing in Seller’s sole and absolute discretionArticle 10.