Common use of Failure to Accept or Elect Clause in Contracts

Failure to Accept or Elect. If (a) BREA delivers a written notice that it rejects the Purchase Offer with respect to a BREA Membership Sale, (b) the Administrative Member fails to deposit the Purchase Deposit within five business days after a Purchase Offer with respect the BREA Membership Sale is accepted, or (c) the Administrative Member elects or is deemed to have elected not to purchase BREA’s Membership Interest, then, in any such event, BREA may market BREA’s Membership Interest and sell BREA’s Membership Interest at any time during the Marketing Period. If the Administrative Member did not deliver a Purchase Offer or if the Administrative Member fails to deposit the Purchase Deposit within ten (10) days after a Purchase Offer is accepted, then, in either case, BREA may sell BREA’s Membership Interest during the Marketing Period for any price that is acceptable to BREA. If the Administrative Member delivers a Purchase Offer with respect to the Portfolio Sale and such Purchase Offer is (1) rejected by BREA or (2) accepted by BREA and the Purchase Deposit is delivered by the Administrative Member on a timely basis but the parties do not enter into a ROFO Purchase Agreement, then BREA may sell BREA’s Membership Interest for a purchase price that is not less than 95% of the Administrative Member’s Price. If BREA desires to sell BREA’s Membership Interest for a purchase price that is less than 95% of the Administrative Member’s Price, then, prior to agreeing to sell BREA’s Membership Interest to a third party for such price, BREA must deliver a Supplemental Notice, which Supplemental Notice shall identify the Third Party Price. The Administrative Member shall have five (5) business days from the date of receipt of the Supplemental Notice to notify BREA in writing that either (a) the Administrative Member is prepared to purchase BREA’s Membership Interest at a purchase price equal to the Third Party Price, or (b) the Administrative Member is not prepared to purchase BREA’s Membership Interest. Failure of the Administrative Member to respond in writing to the Supplemental Notice within such five business day period shall be deemed an election by the Administrative Member that the Administrative Member is not prepared to purchase BREA’s Membership Interest. If the Administrative Member elects not to, or is deemed to elect not to purchase BREA’s Membership Interest, then BREA may sell BREA’s Membership Interest to a third party at the Third Party Price. If the Administrative Member elects to purchase BREA’s Membership Interest for the Third Party Price, then the sale of BREA‘s Membership Interest shall take place in accordance with the terms of Section 10.1C(2) and 10.1C(3) hereof, except that the terms shall be modified to reflect a purchase price equal to the Third Party Price.

Failure to Accept or Elect. If (a) BREA delivers a written notice that it rejects the Purchase Offer with respect to a BREA Membership Property Sale, (b) the Administrative Member fails to deposit the Purchase Deposit within five business days after a Purchase Offer with respect to the BREA Membership Property Sale is accepted, or (c) the Administrative Member elects or is deemed to have elected not to purchase BREA’s Membership Interestthe applicable Property or Properties, then, in any such event, BREA may market BREA’s Membership Interest the applicable Property or Properties, and cause the Company to sell BREA’s Membership Interest the applicable Property or Properties at any time during the Marketing Period. If the Administrative Member did not deliver a Purchase Offer or if the Administrative Member fails to deposit the Purchase Deposit within ten (10) days after a Purchase Offer is accepted, then, in either case, BREA may cause the Company to sell BREA’s Membership Interest the applicable Property or Properties during the Marketing Period for any price that is acceptable to BREA. If the Administrative Member delivers a Purchase Offer with respect to the Portfolio Property Sale and such Purchase Offer is (1) rejected by BREA or (2) accepted by BREA and the Purchase Deposit is delivered by the Administrative Member on a timely basis but the parties do not enter into a ROFO Purchase Agreement, then BREA may cause the Company to sell BREA’s Membership Interest the applicable Property or Properties for a purchase price that is not less than 95% of the Administrative Member’s Price. If BREA desires to cause the Company to sell BREA’s Membership Interest the applicable Property or Properties for a purchase price that is less than 95% of the Administrative Member’s Price, then, prior to agreeing to sell BREA’s Membership Interest the applicable Property or Properties to a third party for such price, BREA must deliver a Supplemental Notice, which Supplemental Notice shall identify the Third Party Price. The Administrative Member shall have five (5) business days from the date of receipt of the Supplemental Notice to notify BREA in writing that either (a) the Administrative Member is prepared to purchase BREA’s Membership Interest the applicable Property or Properties at a purchase price equal to the Third Party Price, or (b) the Administrative Member is not prepared to purchase BREA’s Membership Interestthe applicable Property or Properties. Failure of the Administrative Member to respond in writing to the Supplemental Notice within such five business day period shall be deemed an election by the Administrative Member that the Administrative Member is not prepared to purchase BREA’s Membership Interestthe applicable Property or Properties. If the Administrative Member elects not to, or is deemed to elect not to purchase BREA’s Membership Interestthe applicable Property or Properties, then BREA may sell BREA’s Membership Interest the applicable Property or Properties to a third party at the Third Party Price. If the Administrative Member elects to purchase BREA’s Membership Interest the applicable Property or Properties for the Third Party Price, then the sale of BREA‘s Membership Interest the applicable Property or Properties shall take place in accordance with the terms of Section 10.1C(210.1A(2) and 10.1C(310.1A(3) hereof, except that the terms shall be modified to reflect a purchase price equal to the Third Party Price.

Failure to Accept or Elect. If (a) BREA delivers a written notice that it rejects the Purchase Offer with respect to a BREA Membership Portfolio Sale, (b) the Administrative Member fails to deposit the Purchase Deposit within five (5) business days after a Purchase Offer with respect the BREA Membership Portfolio Sale is accepted, or (c) the Administrative Member elects or is deemed to have elected not to purchase BREA’s Membership the Portfolio/Company Interest, then, in any such event, BREA may market BREA’s Membership Interest the Portfolio/Company Interest, and cause the Company to sell BREA’s Membership the Portfolio/Company Interest at any time during the Marketing Period. If the Administrative Member did not deliver a Purchase Offer or if the Administrative Member fails to deposit the Purchase Deposit within ten (10) days after a Purchase Offer is accepted, then, in either case, BREA may cause the Company to sell BREA’s Membership the Portfolio/Company Interest during the Marketing Period for any price that is acceptable to BREA. If the Administrative Member delivers a Purchase Offer with respect to the Portfolio Sale and such Purchase Offer is (1) rejected by BREA or (2) accepted by BREA and the Purchase Deposit is delivered by the Administrative Member on a timely basis but the parties do not enter into a ROFO Purchase Agreement, then BREA may cause the Company to sell BREA’s Membership the Portfolio/Company Interest for a purchase price that is not less than 95% of the Administrative Member’s Price. If BREA desires to cause the Company to sell BREA’s Membership the Portfolio/Company Interest for a purchase price that is less than 95% of the Administrative Member’s Price, then, prior to agreeing to sell BREA’s Membership the Portfolio/Company Interest to a third party for such price, BREA must deliver a Supplemental Notice, which Supplemental Notice shall identify the Third Party Price. The Administrative Member shall have five (5) business days from the date of receipt of the Supplemental Notice to notify BREA in writing that either (a) the Administrative Member is prepared to purchase BREA’s Membership the Portfolio/Company Interest at a purchase price equal to the Third Party Price, or (b) the Administrative Member is not prepared to purchase BREA’s Membership the Portfolio/Company Interest. Failure of the Administrative Member to respond in writing to the Supplemental Notice within such five business day period shall be deemed an election by the Administrative Member that the Administrative Member is not prepared to purchase BREA’s Membership the Portfolio/Company Interest. If the Administrative Member elects not to, or is deemed to elect not to purchase BREA’s Membership the Portfolio/Company Interest, then BREA may sell BREA’s Membership the Portfolio/Company Interest to a third party at the Third Party Price. If the Administrative Member elects to purchase BREA’s Membership the Portfolio/Company Interest for the Third Party Price, then the sale of BREA‘s Membership the Portfolio/Company Interest shall take place in accordance with the terms of Section 10.1C(210.1B(2) and 10.1C(310.1B(3) hereof, except that the terms shall be modified to reflect a purchase price equal to the Third Party Price.

Failure to Accept or Elect. If (a) BREA delivers a written notice that it rejects the Purchase Offer with respect to a BREA Membership SaleOffer, (b) the Administrative Member fails to deposit the Purchase Deposit within five (5) business days after a Purchase Offer with respect the BREA Membership Sale is accepted, or (c) the Administrative Member elects or is deemed to have elected not to purchase the applicable Property, or BREA’s Membership Interest, as applicable, then, in any such event, BREA may market BREA’s Membership Interest or the applicable Property for sale (directly or through the sale of the applicable Company Subsidiary) and cause the Company to sell BREA’s Membership Interest the applicable Property (directly or through the sale of the applicable Subsidiary) at any time during the one hundred eighty (180) days following the date that Administrative Member’s right to purchase the applicable Property, BREA’s Membership Interest, as applicable, expires or is otherwise lost (the “Marketing Period”). If the Administrative Member did not deliver a Purchase Offer or if the Administrative Member fails to deposit the Purchase Deposit within ten (10) days after a Purchase Offer is accepted, then, in either case, BREA may cause the Company to sell BREA’s Membership Interest or the applicable Property during the Marketing Period for any price that is acceptable to BREA. If the Administrative Member delivers a Purchase Offer with respect to the Portfolio Sale and such Purchase Offer is (1) rejected by BREA or (2) accepted by BREA and the Purchase Deposit is delivered by the Administrative Member on a timely basis but the parties do not enter into a ROFO Purchase AgreementBREA, then BREA may cause the Company to sell BREA’s Membership Interest or the applicable Property for a purchase price that is not less more than 95% of the $5,000,000 lower than Administrative Member’s PricePrice as set forth in the Purchase Offer delivered by Administrative Member after receipt of the applicable Intent to Sell Notice, provided that if the proposed sale relates to less than eighty percent (80%) of the Properties, the foregoing threshold shall be not less than ninety-five percent (95%) of Administrative Member’s Price as set forth in the Purchase Offer, rather than $5,000,000. If BREA desires to cause the Company to sell BREA’s Membership Interest or the applicable Property for a purchase price that is more than $5,000,000 lower than, or less than ninety-five percent (95% of the %) of, as applicable, Administrative Member’s PricePrice as set forth in the Purchase Offer that Administrative Member delivered after receipt of the applicable Intent to Sell Notice, then, prior to agreeing to sell BREA’s Membership Interest or the applicable Property to a third party for such price, BREA must deliver a written notice to Administrative Member (a “Supplemental Notice”), which Supplemental Notice shall identify the proposed sale price (the “Third Party Price”). The Administrative Member shall have five (5) business days from the date of receipt of the Supplemental Notice to notify BREA in writing that either (a) the Administrative Member is prepared to purchase BREA’s Membership Interest or the applicable Property at a purchase price equal to the Third Party Price, or (b) the Administrative Member is not prepared to purchase BREA’s Membership InterestInterest or the applicable Property. Failure of the Administrative Member to respond in writing to the Supplemental Notice within such five (5) business day period shall be deemed an election by the Administrative Member that the Administrative Member is not prepared to purchase BREA’s Membership InterestInterest or the applicable Property. If the Administrative Member elects not to, or is deemed to elect not to purchase BREA’s Membership InterestInterest or the applicable Property, then BREA may sell BREA’s Membership Interest or cause the Company to a sell the applicable Property to the third party at the Third Party Price. If the Administrative Member elects to purchase BREA’s Membership Interest or the applicable Property for the Third Party Price, then the sale of BREA‘s BREA’s Membership Interest or the applicable Property shall take place in accordance with the terms of Section 10.1C(2) and 10.1C(3) 10.2 hereof, except that the terms of Section 10.2 shall be modified to reflect a purchase price equal to the Third Party Price.