Common use of Conditions Precedent Favoring Purchaser Clause in Contracts

Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Sellers’ Representative. (a) Sellers shall have delivered, or caused to be delivered, all of the items required by Section 8.2 hereof. (b) Sellers shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Sellers prior to or at the Closing. (c) On the Closing Date, the representations of Sellers’ Representative set forth in Section 7.2 shall be true, complete and accurate in all material respects, subject to: (i) changes that are caused by the negligent acts or omissions or willful misconduct of Purchaser or its agents or affiliates or their officers, agents or employees, and (ii) casualty or condemnation (which shall be governed by Sections 6.3 and 6.4, respectively). Casualty and condemnation shall in all events be governed by Sections 6.3 and 6.4, respectively, and not by this Section 6.1(c). (d) Purchaser shall have received the Federated Estoppel as well as estoppel certificates confirming the accuracy in all material respects of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses from the following (collectively, the “Required Tenants”): (i) each Anchor Tenant; (ii) each Large Non-Anchor Tenant; and (iii) a sufficient number of Small Non-Anchor Tenants so that, in the aggregate, Purchaser receives estoppel certificates (excluding any Sellers’ Estoppel Certificates delivered in accordance with Section 6.1(e) hereof) that cover not less than seventy-five percent (75%) (by net rentable square feet) of all of the Improvements that are leased by Owner to all Small Non-Anchor Tenants. The disclosure or expression of any facts, claims or information by Tenants in their completed estoppel certificates shall not be deemed a material variation from the form required if such facts, claims or information were disclosed to Purchaser by letter from Seller before the Effective Date or as part of the Rent Roll. (e) Notwithstanding the foregoing, Sellers shall provide to Purchaser Sellers’ Estoppel Certificates confirming the accuracy in all material respects of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses for all Leases for which Seller does not receive estoppel certificates from the Tenants, and no such Seller Estoppel Certificate shall be considered in determining compliance with the requirements of Section 6.1(d).All estoppel certificates required hereby from Tenants shall be substantially in the form attached hereto as Exhibit B; provided, however, that an estoppel certificate containing all information required under an applicable Lease shall be sufficient for the purpose of satisfying the requirements of Section 6.1(d). All estoppel certificates shall be dated after the date of this Agreement and all completed estoppel certificates shall be delivered to Purchaser within three (3) Business Days upon receipt by any Seller Party. Back to Contents (f) Northgate Investments shall have performed all of its obligations to be performed as a condition to the closing under the Northgate Investments Property Contract. (g) Sellers and Purchaser shall have obtained the consent of the Senior Lender to the transfer of the Subject Interests pursuant to this Agreement, including substitution of ▇▇▇▇▇▇▇ Equities Management, LLC, an Arizona limited liability company, as the manager of the Property in substitution for the existing manager of the Property, in a form reasonably acceptable to Purchaser to the Closing of this Agreement, and the forms of all documents required by the Senior Lender in connection with such Closing shall have been approved by Purchaser, such approval not being unreasonably withheld or delayed, but in no event shall the Senior Lender consent impose any obligation on Purchaser that is not currently imposed on Sellers, but Purchaser agrees to pay to the Senior Lender up to $50,000 of any assumption or comparable fee required by Senior Lender to be paid to it as a condition to its consent, and Sellers agree to pay the portion of any such fee exceeding $50,000. (h) Sellers shall provide Purchaser with evidence reasonably satisfactory to Purchaser that at or before Closing the membership interest of ▇▇▇▇▇ in Group has been redeemed or extinguished or acquired by another member of Group and that ▇▇▇▇▇ has been paid all amounts due to ▇▇▇▇▇ in consideration thereof as provided in the Operating Agreement of Group and any other agreements pertaining thereto (“▇▇▇▇▇ Redemption”). (i) Purchaser shall have received a zoning certification for the Real Property issued by ▇▇▇▇▇▇▇▇ County, Ohio in form and substance reasonably acceptable to Purchaser (the “Zoning Certificate”). (j) Purchaser shall have received a fully executed original of the Escrow Agreement. (k) Purchaser shall have received acceptable evidence that Sellers’ Representative Guarantor has the net worth required under Section 7.2(c)(viii) of this Agreement. Such evidence shall be, at the election of Sellers’ Representative Guarantor, in the form of financial statements or in the form of a certification from the accountants of Sellers’ Representative Guarantor. (l) Purchaser shall have received the Updated Survey. (m) [intentionally omitted] (n) The existing manager of the Property shall have waived any claim by it for indemnity under all existing agreements for management of the Property to which the existing manager is a party and have consented to the termination of the existing agreements pursuant to documentation (the “Management Waiver”) reasonably acceptable to Purchaser and such existing manager. Back to Contents (o) The Title Company shall have irrevocably and unconditionally committed to issue a title insurance policy to Purchaser in the amount of the Purchase Price with the standard exceptions removed and subject only to the other exceptions shown in the Title Commitment which have been approved or deemed approved by Purchaser consistent with the provisions of this Agreement, together with such endorsements as Purchaser may request, including without limitation a non-imputation endorsement (ALTA Form 15), contiguity endorsement, and survey endorsement. (p) Seller shall have received and delivered to Purchaser estoppel certificates from all parties to the Operating Agreement reflecting that Owner is not in breach of any obligation under the Operating Agreement. (q) The Senior Lender shall have released ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ from the Released Obligations and an Affiliate of the Purchaser acceptable to the Senior Lender shall have executed such documents as may be required by the Senior Lender to assume the Released Obligations (and Purchaser shall cooperate with Sellers in communications and any negotiations with the Senior Lender, with the intention of attaining such result).

Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Sellers’ RepresentativeSeller. (a) Sellers shall have delivered, or caused to be delivered, all of the items required by Section 8.2 hereof. (b) Sellers Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Sellers Seller prior to or at the Closing.; (cb) On the Closing Date, the representations of Sellers’ Representative set forth in Section 7.2 Seller Representations shall be true, complete and accurate in all material respects, subject to: (i) changes that are caused evidenced by the negligent acts or omissions or willful misconduct delivery by Seller of a certificate of compliance (“Seller’s Representation Certificate”) to Purchaser or its agents or affiliates or their officers, agents or employees, and (ii) casualty or condemnation (which shall be governed by Sections 6.3 and 6.4, respectively). Casualty and condemnation shall in all events be governed by Sections 6.3 and 6.4, respectively, and not by this Section 6.1(c).at Closing; (dc) Purchaser shall have received an estoppel certificate from Yankee Clipper dated no more than thirty (30) days prior to the Federated Estoppel as well as estoppel certificates confirming Closing Date reflecting the accuracy in all material respects terms of the Rent Roll Existing Yankee Lease and the absence of material defaults and asserted offsets, claims or defenses from the following (collectively, the “Required Tenants”): (i) each Anchor Tenant; (ii) each Large Non-Anchor Tenant; and (iii) a sufficient number of Small Non-Anchor Tenants so that, in the aggregate, Purchaser receives estoppel certificates (excluding any Sellers’ Estoppel Certificates delivered in accordance with Section 6.1(e) hereof) that cover not less than seventy-five percent (75%) (by net rentable square feet) of all of the Improvements that are leased by Owner to all Small Non-Anchor Tenants. The disclosure or expression of any facts, claims or information by Tenants in their completed estoppel certificates shall not be deemed a material variation from the form required if such facts, claims or information were disclosed to Purchaser by letter from Seller before the Effective Date or as part of the Rent Roll. (e) Notwithstanding the foregoing, Sellers shall provide to Purchaser Sellers’ Estoppel Certificates confirming the accuracy in all material respects of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses for all Leases for which Seller does not receive estoppel certificates from the Tenants, and no such Seller Estoppel Certificate shall be considered in determining compliance with the requirements of Section 6.1(d).All estoppel certificates required hereby from Tenants shall be otherwise substantially in the form attached hereto as Exhibit B; provided, however, that B-1 (the “Yankee Estoppel Certificate”). Purchaser shall have received an estoppel certificate containing all from ▇▇▇▇ Flotation dated no more than thirty (30) days prior to the Closing Date reflecting the terms of the Existing ▇▇▇▇ Lease and otherwise substantially in the form attached hereto as Exhibit B-2 (the “▇▇▇▇ Estoppel Certificate” and together with the Yankee Estoppel Certificate, each an “Estoppel Certificate” and collectively, the “Estoppel Certificates”). With respect to each Estoppel Certificate, this condition shall not be satisfied if an Estoppel Certificate discloses: (i) any default by Seller, in its capacity as landlord, or Yankee Clipper or ▇▇▇▇ Flotation, as applicable; (ii) any amendment, modification or supplement to the applicable Existing Lease that was entered into in violation of the terms of this Agreement; or (iii) any other information that is inconsistent in any material respect with the applicable Existing Lease or related information as provided to Purchaser during the Due Diligence Period. Seller shall use good faith, commercially reasonable efforts to obtain the Estoppel Certificates, and shall deliver a copy of each Estoppel Certificate to Purchaser promptly upon receipt thereof by Seller. Seller shall allow Purchaser to review each Estoppel Certificate before presenting it to the applicable tenant. Seller may also request a subordination, non-disturbance and attornment agreement (an “SNDA”) from each of Yankee Clipper and ▇▇▇▇ Flotation, as requested by Purchaser or its lender, such SNDA to be in the form provided by Purchaser (or in such other form as may be required under an by the applicable Existing Lease) for the benefit of Purchaser’s lender, promptly after Seller’s receipt thereof and shall reasonably cooperate with Purchaser in connection with obtaining such SNDAs. Seller shall deliver to Purchaser the executed SNDAs (and written comments received from the applicable tenant with respect thereto) promptly upon receipt (but no later than two (2) Business Days following receipt thereof). In no event shall the Closing be conditioned on Purchaser’s receipt of such SNDAs, if applicable; (d) On the Closing Date, Purchaser, as landlord, and ▇▇▇▇ Flotation, as tenant, shall have executed and delivered that certain Lease for occupancy of approximately three hundred eighteen thousand one hundred and four (318,104) square feet of leasable space at the Property substantially in the form attached hereto as Exhibit M (the “Seller Lease”) and the Seller Lease shall contemplate the Existing Yankee Lease continuing to be in full force and effect as a sublease on the Property. All further modifications with respect to the Seller Lease shall be sufficient for negotiated by the purpose parties on or before the expiration of satisfying the requirements of Section 6.1(d). All estoppel certificates Due Diligence Period; (e) On the Closing Date, title to the Property shall be dated after conveyed to Purchaser subject only to the date of this Agreement Permitted Exceptions and all completed estoppel certificates the Title Company shall be delivered irrevocably committed to issue to Purchaser within three an extended coverage owner’s title insurance policy (3on the current ALTA Form) Business Days upon receipt by any Seller Party. Back in the amount of the Purchase Price, together with the endorsements for Purchaser’s owner’s title insurance policy, insuring good and indefeasible fee simple title to Contentsthe Real Property in Purchaser, subject only to the Permitted Exceptions; (f) Northgate Investments shall have performed all of its obligations to be performed as a condition to On the closing under the Northgate Investments Property Contract. (g) Sellers and Purchaser shall have obtained the consent of the Senior Lender to the transfer of the Subject Interests pursuant to this AgreementClosing Date, including substitution of neither Seller, ▇▇▇▇ Flotation nor ▇▇▇▇▇▇ Equities Management, LLC, an Arizona limited liability company, as the manager of the Property in substitution for the existing manager of the Property, in a form reasonably acceptable to Purchaser to the Closing of this Agreement, and the forms of all documents required by the Senior Lender in connection with such Closing shall have been approved by Purchaser, such approval not being unreasonably withheld or delayed, but in no event shall the Senior Lender consent impose any obligation on Purchaser that is not currently imposed on Sellers, but Purchaser agrees to pay to the Senior Lender up to $50,000 of any assumption or comparable fee required by Senior Lender to be paid to it as a condition to its consent, and Sellers agree to pay the portion of any such fee exceeding $50,000. (h) Sellers shall provide Purchaser with evidence reasonably satisfactory to Purchaser that at or before Closing the membership interest of ▇▇▇▇▇ in Group has been redeemed or extinguished or acquired by another member of Group and that ▇▇▇▇▇ has been paid all amounts due to ▇▇▇▇▇ in consideration thereof as provided in shall be the Operating Agreement of Group and any other agreements pertaining thereto (“▇▇▇▇▇ Redemption”). (i) Purchaser shall have received a zoning certification for the Real Property issued by ▇▇▇▇▇▇▇▇ County, Ohio in form and substance reasonably acceptable to Purchaser (the “Zoning Certificate”). (j) Purchaser shall have received a fully executed original of the Escrow Agreement. (k) Purchaser shall have received acceptable evidence that Sellers’ Representative Guarantor has the net worth required under Section 7.2(c)(viii) of this Agreement. Such evidence shall be, at the election of Sellers’ Representative Guarantor, in the form of financial statements or in the form of a certification from the accountants of Sellers’ Representative Guarantor. (l) Purchaser shall have received the Updated Survey. (m) [intentionally omitted] (n) The existing manager of the Property shall have waived any claim by it for indemnity under all existing agreements for management of the Property to which the existing manager is a party and have consented to the termination of the existing agreements pursuant to documentation (the “Management Waiver”) reasonably acceptable to Purchaser and such existing manager. Back to Contents (o) The Title Company shall have irrevocably and unconditionally committed to issue a title insurance policy to Purchaser in the amount of the Purchase Price with the standard exceptions removed and subject only to the other exceptions shown in the Title Commitment which have been approved or deemed approved by Purchaser consistent with the provisions of this Agreement, together with such endorsements as Purchaser may request, including without limitation a non-imputation endorsement (ALTA Form 15), contiguity endorsement, and survey endorsement. (p) Seller shall have received and delivered to Purchaser estoppel certificates from all parties to the Operating Agreement reflecting that Owner is not in breach of any obligation under the Operating Agreementbankruptcy proceedings. (q) The Senior Lender shall have released ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ from the Released Obligations and an Affiliate of the Purchaser acceptable to the Senior Lender shall have executed such documents as may be required by the Senior Lender to assume the Released Obligations (and Purchaser shall cooperate with Sellers in communications and any negotiations with the Senior Lender, with the intention of attaining such result).

Conditions Precedent Favoring Purchaser. In addition to any other conditions precedent in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, Purchaser’s obligations under this Agreement are subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Sellers’ RepresentativeSeller or by Purchaser consummating the transactions described in this Agreement at the Closing. (a) Sellers shall have deliveredSeller and CLSB II Assignor, or caused to be deliveredas the case may be, all of the items required by Section 8.2 hereof. (b) Sellers shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Sellers Seller and CLSB II Assignor, as the case may be, prior to or at the Closing. (cb) On Subject to Section 7.3, on the Closing Date, the representations of Sellers’ Representative Seller and CLSB II Assignor, respectively, set forth in Section 7.2 (as the same have been updated pursuant to Section 7.3(c)) shall be true, complete and accurate in all material respects, subject to: (i1) changes that that: (y) are caused by the negligent acts or omissions or willful misconduct of Purchaser or Persons acting under Purchaser; or (z) are a result of the operation of the Property in the normal course of business since the date hereof and in accordance with the terms of this Agreement and do not, individually or in the aggregate, have a material adverse effect on the value of the Property or the Purchaser’s ability to use the Property for its agents or affiliates or their officers, agents or employees, intended uses; and (ii2) casualty or condemnation (which shall be governed by Sections 6.3 Section 6.3). (c) Purchaser shall have received estoppel certificates from each of the Tenants (each, a “Tenant Estoppel Certificate”) or shall have been provided with Seller’s Estoppel Certificates as permitted by the following sentence, in each case dated no earlier than the Effective Date and 6.4, respectivelyin no event more than thirty (30) Business Days before the Closing (the “Estoppel Requirement”). Casualty If Seller is unable to obtain estoppel certificates from D▇▇▇ ▇▇▇▇▇▇ Cancer Institute, Inc. and/or the CBR Institute for Biomedical Research, Inc., in order to meet the Estoppel Requirement, Seller shall provide to the Purchaser substitute Seller’s Estoppel Certificates with respect to the Leases to D▇▇▇ ▇▇▇▇▇▇ Cancer Institute, Inc. and/or the CBR Institute for Biomedical Research, Inc., as the case may be. With respect to any Tenant for whom Seller delivers a Seller’s Estoppel Certificate, Seller’s statements therein shall be deemed to be representations and condemnation warranties as though set forth under and subject to Article 7 of this Agreement. Seller shall be entitled to continue to deal with such Tenant after Closing to attempt to obtain a Tenant Estoppel Certificate from such Tenant. If Purchaser subsequently receives a Tenant Estoppel Certificate from any Tenant for whom Seller has delivered a Seller’s Estoppel Certificate, Seller shall thereupon be released from liability with respect to the Seller’s Estoppel Certificate given with respect to such Tenant to the extent that the information contained in the Tenant Estoppel Certificate obtained from the Tenant is materially consistent with the information contained in Seller’s Estoppel Certificate. All Tenant Estoppel Certificates required hereby shall be substantially in the form of the Seller’s Estoppel Certificate; but such form may contain modifications and additions so long as the substance of such form is included, and the delivery of a Tenant Estoppel Certificate that complies in all material respects with the applicable Lease shall in all events be governed deemed to satisfy the Estoppel Requirement as to such Lease. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Tenant Estoppel Certificate (or Seller’s Estoppel Certificate) shall count towards the Estoppel Requirement if it (A) discloses any material default by Sections 6.3 and 6.4, respectivelySeller or the respective Tenant that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the Leases as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth claims or disputes not disclosed to Purchaser before the commencement of the Restricted Period, and in each case has a material adverse effect on the value of the Property following the Closing; or (D) discloses any information that would make any Seller Representation untrue in any material respect. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value of not more than Five Hundred Thousand Dollars ($500,000) and an aggregate value (with respect to all Tenant estoppel certificates and Seller’s Estoppel Certificates) of not more than One Million Dollars ($1,000,000) and that would not entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed not to have a material adverse effect on the value of the Property following the Closing. Tenant Estoppel Certificates or Seller’s Estoppel Certificates that set forth claims, disputes or landlord defaults with respect to construction or other matters having an individual value greater than Five Hundred Thousand Dollars ($500,000) or an aggregate value (with respect to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates) greater than One Million Dollars ($1,000,000) or that would entitle the Tenant under the applicable Lease to terminate such Lease pursuant to the terms thereof as of the date of such Certificates shall conclusively be deemed to have a material adverse effect on the value of the Property following the Closing. The foregoing deemed material adverse effect shall apply to all Tenant Estoppel Certificates and Seller’s Estoppel Certificates, whether the same are delivered to Purchaser before or following the commencement of the Restricted Period (notwithstanding the provisions of Section 6.1(g) below). If any Tenant Estoppel Certificate or Seller’s Estoppel Certificate provided to Purchaser contains any information that is inconsistent with any Seller Representation, the Seller Representation shall be deemed modified by this the information contained in such estoppel certificate. Notwithstanding anything herein to the contrary but subject to the provisions set forth in Section 6.1(c6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, an estoppel certificate that would otherwise satisfy the requirements for an acceptable estoppel certificate above, except for an alleged “landlord default” or any Tenant claims or disputes in excess of the foregoing amounts set forth in such certificate shall be deemed acceptable and shall count toward the Estoppel Requirement if (x) Seller cures such asserted landlord default at or prior to the Closing, or (y) Seller is disputing such landlord default in good faith, such alleged default could not reasonably be expected to result in a termination of the respective Lease, and Seller at its sole discretion deposits with the Escrow Agent at the Closing funds reasonably adequate to effect the cure of such landlord default post-Closing and pay Tenant all amounts due under the Lease or that otherwise may be due to the Tenant under applicable law, if any, as a result thereof, such funds to be held in escrow by the Escrow Agent until such dispute is resolved in landlord’s favor or such landlord default is cured, and if such dispute is not resolved in landlord’s favor within ninety (90) days after the Closing, Purchaser may use and apply so much of the escrow funds as shall be necessary to cure the landlord default and pay Tenant all amounts due under the Lease or that may otherwise be due to the Tenant under applicable law, if any, as a result thereof, and any remaining balance shall be promptly remitted to Seller. Purchaser shall reasonably cooperate with Seller’s efforts to effect such cure after the Closing at no material cost to Purchaser (unless such cost is reimbursed to Purchaser). (d) Purchaser shall have received the Federated Estoppel as well as estoppel certificates confirming the accuracy in all material respects of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses a statement from the following (collectively, the “Required Tenants”): (i) each Anchor Tenant; (ii) each Large Non-Anchor Tenant; and (iii) a sufficient number of Small Non-Anchor Tenants so that, in the aggregate, Purchaser receives estoppel certificates (excluding any Sellers’ Estoppel Certificates delivered in accordance with Section 6.1(e) hereof) that cover not less Contractor dated no earlier than seventy-five percent (75%) (by net rentable square feet) of all of the Improvements that are leased by Owner to all Small Non-Anchor Tenants. The disclosure or expression of any facts, claims or information by Tenants in their completed estoppel certificates shall not be deemed a material variation from the form required if such facts, claims or information were disclosed to Purchaser by letter from Seller before the Effective Date or as part of and in no event more than thirty (30) Business Days before the Rent Roll. (e) Notwithstanding the foregoingClosing, Sellers shall provide to Purchaser Sellers’ Estoppel Certificates confirming the accuracy in all material respects of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses for all Leases for which Seller does not receive estoppel certificates from the Tenants, and no such Seller Estoppel Certificate shall be considered in determining compliance with the requirements of Section 6.1(d).All estoppel certificates required hereby from Tenants shall be substantially in the form attached hereto as Exhibit B; provided, however, that an estoppel certificate containing all information required under an applicable Lease shall be sufficient for Schedule 6.1(d) (the purpose of satisfying “Contractor’s Statement”) setting forth therein the requirements of Section 6.1(d). All estoppel certificates shall be dated after the date of this Agreement and all completed estoppel certificates shall be delivered to Purchaser within three (3) Business Days upon receipt by any Seller Party. Back to Contents (f) Northgate Investments shall have performed all of its obligations to be performed as a condition Remaining GMP Amount with respect to the closing under the Northgate Investments Property Contract. (g) Sellers and Purchaser shall have obtained the consent of the Senior Lender to the transfer of the Subject Interests pursuant to this Agreement, including substitution of ▇▇▇B▇▇▇▇ Equities Management, LLC, an Arizona limited liability company, Contract (as such terms are defined in Schedule 6.1(d)). Such form may contain modifications so long as it in substance sets forth the manager of the Property in substitution for the existing manager of the Property, in a form reasonably acceptable to Purchaser to the Closing of this AgreementRemaining GMP Amount, and the forms other material provisions of all documents required the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Contractor’s Statement shall satisfy this condition if it (A) discloses any material default by Seller or the Senior Lender in connection with such Closing shall have been approved by Purchaser, such approval Contractor that was not being unreasonably withheld disclosed to Purchaser before the commencement of the Restricted Period or delayed, but in no event shall the Senior Lender consent impose any obligation on Purchaser (B) contains information that is not currently imposed on Sellers, but Purchaser agrees to pay to materially inconsistent with the Senior Lender up to $50,000 of any assumption or comparable fee required by Senior Lender to be paid to it as a condition to its consent, and Sellers agree to pay information set forth in the portion of any such fee exceeding $50,000. (h) Sellers shall provide Purchaser with evidence reasonably satisfactory to Purchaser that at or before Closing the membership interest of ▇B▇▇▇▇ in Group has been redeemed Contract as made available to Purchaser before the commencement of the Restricted Period or extinguished or acquired by another member of Group and that ▇▇▇▇▇ has been paid all amounts due to ▇▇▇▇▇ in consideration thereof as provided (C) sets forth Disputed Contractor Claims (including Disputed Contractor Claims for an increase in the Operating Agreement contract amount or an extension of Group and any other agreements pertaining thereto deadline) not disclosed to Purchaser before the commencement of the Restricted Period that would either (“▇▇▇▇▇ Redemption”)i) have a material adverse effect on the value of the Property with an aggregate value of more than One Million Dollars ($1,000,000) or (ii) increase the Purchaser’s cost to complete the Project after the Closing by more than One Million Dollars ($1,000,000) or (iii) cause the Contract Substantial Completion Date to occur more than one (1) month past November 30, 2007 or (D) discloses any information that would make any Seller Representation untrue in any material respect. (ie) Purchaser shall have received a zoning certification for statement from the Real Property issued by ▇▇▇▇▇▇▇▇ CountyArchitect dated no earlier than the Effective Date and in no event more than thirty (30) Business Days before the Closing, Ohio substantially in the form and substance reasonably acceptable to Purchaser attached hereto as Schedule 6.1(e) (the “Zoning CertificateArchitect’s Statement”) setting forth therein the Remaining Contract Amount with respect to the TKA Contract (as such term is defined in Schedule 6.1(e)). Such form may contain modifications so long as it in substance sets forth the Remaining Contract Amount, and the other material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Architect’s Statement shall satisfy this condition if it (A) discloses any material default by Seller or the Architect that was not disclosed to Purchaser before the commencement of the Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the TKA Agreement as made available to Purchaser before the commencement of the Restricted Period or (C) sets forth Disputed Architect Claims not disclosed to Purchaser before the commencement of the Restricted Period that would either (i) have a material adverse effect on the value of the Property with an aggregate value of more than One Million Dollars ($1,000,000) or (ii) increase the Purchaser’s cost to complete the Project after the Closing by more than One Million Dollars ($1,000,000) or (iii) delay the completion of the Project by more than three (3) months or (D) discloses any information that would make any Seller Representation untrue in any material respect. (jf) Purchaser shall have received an estoppel certificate from CLSB II Borrower, dated no earlier than the Effective Date and in no event more than thirty (30) Business Days before the Closing, substantially in the form attached hereto as Schedule 6.1(f) (the “Purchase Money Loan Estoppel Certificate”), setting forth therein the amount of indebtedness owed by CLSB II Borrower under the CLSB II Purchase Money Loan. If CLSB II Assignor is unable to obtain the Purchase Money Loan Estoppel in order to satisfy this condition, CLSB II Assignor shall provide to the Purchaser a fully executed original substitute “CLSB II Assignor’s Estoppel Certificate”, which shall be in the form of the Escrow Agreement. (k) Purchaser Purchase Money Loan Estoppel Certificate but shall have received acceptable evidence be modified for delivery from CLSB II Assignor and acknowledge this Agreement and the limitations on CLSB II Assignor’s liability set forth herein. In the event that Sellers’ Representative Guarantor has the net worth required CLSB II Assignor delivers a CLSB II Assignor’s Estoppel Certificate, CLSB II Assignor’s statements therein shall be deemed to be representations and warranties as though set forth under Section 7.2(c)(viii) and subject to Article 7 of this Agreement. CLSB II Assignor shall be entitled to continue to deal with the CLSB II Borrower after Closing to attempt to obtain the Purchase Money Loan Estoppel Certificate. If CLSB II Assignor subsequently receives a Purchase Money Loan Estoppel Certificate, CLSB II Assignor shall thereupon be released from liability with respect to the CLSB II Assignor’s Estoppel Certificate given to the extent that the information contained in the Purchase Money Loan Estoppel Certificate from the CLSB II Borrower is consistent with the information contained in CLSB II Assignor’s Estoppel Certificate. Such evidence form may contain modifications so long as it in substance sets forth the amount of indebtedness owed by CLSB II Borrower under the CLSB II Purchase Money Loan and the other material provisions of the form attached hereto. Except as provided in Section 6.1(g) below with respect to any Certificate delivered to Purchaser before the commencement of the Restricted Period, no Purchase Money Loan Estoppel Certificate or CLSB II Assignor’s Estoppel Certificate shall besatisfy this condition if it (A) discloses any material default by CLSB II Assignor, at CLSB II Borrower or any other Person that was not disclosed to Purchaser before the election commencement of Sellers’ Representative Guarantorthe Restricted Period or (B) contains information that is materially inconsistent with the information set forth in the CLSB II Purchase Money Loan Documents as made available to Purchaser before the commencement of the Restricted Period or (C) describes any information that would make any Seller Representation untrue in any material respect. (g) If Seller is unable to obtain any of the documents described in Section 6.1 (c), (d), (e) and (f) above (each of the foregoing, a “Certificate”) or otherwise to meet any condition to Purchaser’s obligation to perform, Seller shall have the option, by written notice to Purchaser, to extend the Closing Date from time to time for not more than sixty (60) days in the aggregate from the original Closing Date. Except as otherwise expressly set forth in Section 6.1(c) above, in the form event that any Certificate is delivered to Purchaser before the commencement of financial statements the Restricted Period, and thereafter Purchaser does not terminate this Agreement pursuant to Section 5.2, then notwithstanding anything set forth in this Agreement to the contrary, any such Certificate shall be deemed to satisfy any requirement applicable thereto set forth in this Agreement, and Purchaser shall have no right to object to the form, content or in substance of such Certificate or any matter disclosed therein as not meeting the form conditions for Closing and any such nonconformity shall be deemed waived. Seller and CLSB II Assignor, as applicable, shall use commercially reasonable efforts to obtain each of a certification from the accountants of Sellers’ Representative GuarantorCertificates. (lh) Purchaser shall have received In the Updated Survey. (m) [intentionally omitted] (n) The existing manager of event that the Property shall have waived Closing is delayed for any claim by it for indemnity under all existing agreements for management of the Property to which the existing manager is a party and have consented to the termination of the existing agreements pursuant to documentation (the “Management Waiver”) reasonably acceptable to Purchaser and such existing manager. Back to Contents (o) The Title Company shall have irrevocably and unconditionally committed to issue a title insurance policy to Purchaser in the amount of the Purchase Price with the standard exceptions removed and subject only to the other exceptions shown in the Title Commitment which have been approved or deemed approved by Purchaser consistent with the provisions of this Agreementreason, together with such endorsements as Purchaser may request, including without limitation a non-imputation endorsement (ALTA Form 15), contiguity endorsement, and survey endorsement. (p) Seller shall have received and delivered to Purchaser estoppel certificates from all parties to the Operating Agreement reflecting that Owner is not in breach option to, or if as a result of any obligation such delay any Certificate shall cease to satisfy the applicable requirement set forth above to be dated no more than thirty (30) Business Days prior to Closing, Seller shall use commercially reasonable efforts to, obtain updates to any of the Certificates (any such update being an “Updated Certificate”). In the event that any Updated Certificate (x) discloses information other than differing Remaining Contract Amounts and Remaining GMP Amounts under the Operating Agreement. (q) The Senior Lender shall have released ▇B▇▇▇▇ ▇. ▇▇▇▇▇▇ from Contract or the Released Obligations and an Affiliate of the Purchaser acceptable TKA Contract (with respect to the Senior Lender shall have executed Statements) or increased funding of an applicable tenant improvement allowance (with respect to any Lease) and (y) such documents as may be required by the Senior Lender to assume the Released Obligations (and Purchaser shall cooperate with Sellers in communications and any negotiations with the Senior Lender, with the intention of attaining additional disclosure would cause such result).Updated Ce

Conditions Precedent Favoring Purchaser. (a) In addition to any other conditions precedent in favor of Purchaser as may be expressly set forth elsewhere in this Agreement, Purchaser’s 's obligations under this Agreement are subject to the timely fulfillment of the conditions set forth in this Section SECTION 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part only by written notice of such waiver from Purchaser to Sellers’ RepresentativeSeller. (ai) Sellers shall have delivered, or caused to be delivered, all of the items required by Section 8.2 hereof. (b) Sellers Seller shall have performed and complied in all material respects with all of the terms of this Agreement to be performed and complied with by Sellers Seller prior to or at the Closing. (cii) On the Closing Date, the representations of Sellers’ Representative Seller set forth in Section SECTION 7.2 shall be true, complete and accurate in all material respects, subject to: (i1) changes that that: (y) are caused by the negligent acts or omissions or willful misconduct of Purchaser or its agents or affiliates affiliates; or their officers(z) are a result of the operation of the Property in the normal course of business since the date hereof and in accordance with the terms of this Agreement and do not, agents individually or employeesin the aggregate, have a material adverse effect on the value or operation of the Property; and (ii2) casualty or condemnation (which shall be governed by Sections SECTIONS 6.3 and 6.4, respectively). Casualty and condemnation shall in all events be governed by Sections 6.3 and 6.4, respectively, and not by this Section 6.1(c). (diii) On the Closing Date, title to the Property shall be conveyed to Purchaser subject only to the Permitted Exceptions. (iv) Purchaser shall have received the Federated Estoppel as well as estoppel certificates confirming the accuracy in all material respects of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses from the following from: (collectively, the “Required Tenants”): (i1) each Anchor Tenant; (ii) each Large Non-Anchor Major Tenant; and (iii2) a sufficient number of Small Non-Anchor Major Tenants so that, in the aggregate, Purchaser receives estoppel certificates (excluding any Sellers’ Estoppel Certificates delivered in accordance with Section 6.1(e) hereof) that cover not less than seventy-five percent (75%) at least 85% (by net rentable square feet) of all of the Improvements that are leased by Owner subject to all Small Non-Anchor TenantsLeases as of the Closing (the "ESTOPPEL REQUIREMENT"). The disclosure or expression of any facts, claims or information by Tenants in their completed estoppel certificates shall not be deemed a material variation from the form required if such facts, claims or information were (A) set forth in the Leases or the Rent Roll or otherwise disclosed to Purchaser by letter from Seller in writing before the Effective Date or as part commencement of the Rent Roll. Restricted Period, or (eB) represent less than $50,000 in the aggregate in potential loss or cost. Notwithstanding the foregoing, Sellers shall provide if Seller is unable to Purchaser Sellers’ Estoppel Certificates confirming the accuracy in all material respects obtain a sufficient number of the Rent Roll and the absence of material defaults and asserted offsets, claims or defenses for all Leases for which Seller does not receive estoppel certificates from Tenants to meet the TenantsEstoppel Requirement, and no such Seller may, at its sole option, substitute Seller's Estoppel Certificate Certificates for one or more Non-Major Tenants to the extent necessary to satisfy the Estoppel Requirement. With respect to any Tenant for whom Seller delivers a Seller's Estoppel Certificate, Seller shall be considered entitled to continue to deal with such Tenant after Closing to attempt to obtain an estoppel certificate from such Tenant. If Purchaser subsequently receives an estoppel certificate from any Tenant for whom Seller has delivered a Seller's Estoppel Certificate, Seller shall thereupon be released from liability to the extent that the information contained in determining compliance the estoppel certificate obtained from the Tenant is consistent with the requirements of Section 6.1(d).All information contained in Seller's Estoppel Certificate. All Tenant estoppel certificates required hereby from Tenants shall be substantially in the form attached hereto as Exhibit EXHIBIT B; provided, howeverhowever that in connection with any Lease that provides for a form of tenant estoppel certificate (or the contents thereof), that then the delivery of an estoppel certificate containing that complies in all information required under an material respects with the applicable Lease shall in all events be sufficient for the purpose of satisfying deemed to satisfy the requirements of Section 6.1(d). All estoppel certificates shall be dated after the date of this Agreement and all completed estoppel certificates shall be delivered provision as to Purchaser within three (3) Business Days upon receipt by any Seller Party. Back to Contents (f) Northgate Investments shall have performed all of its obligations to be performed as a condition to the closing under the Northgate Investments Property Contractsuch Lease. (gb) Sellers Notwithstanding the foregoing, if the condition set forth in SECTION 6.1(A)(IV) shall not have been fulfilled on or before the Closing Date, and if Purchaser is unwilling to waive such condition, then either Seller or Purchaser shall have obtained the consent of the Senior Lender one time right, exercisable by not less than ten (10) days prior written notice to the transfer of other party, to extend the Subject Interests pursuant Closing Date for up to this Agreement, including substitution of ▇▇▇▇▇▇▇ Equities Management, LLC, an Arizona limited liability company, as the manager of the Property in substitution thirty (30) days to provide additional time for the existing manager fulfillment of the Property, in a form reasonably acceptable to Purchaser to the Closing of this Agreement, and the forms of all documents required by the Senior Lender in connection with such Closing shall have been approved by Purchaser, such approval not being unreasonably withheld or delayed, but condition; in no event shall this extension right apply in the Senior Lender consent impose case of the failure of any condition other than the one set forth in SECTION 6.1(A)(IV). Subject to Purchaser's right to terminate this Agreement prior to the expiration of the Study Period in accordance with the terms of SECTION 5.2, Purchaser acknowledges and agrees that its obligation on Purchaser that to perform under this Agreement is not currently imposed on Sellers, but Purchaser agrees contingent upon Purchaser's ability to pay to the Senior Lender up to $50,000 of obtain any assumption or comparable fee required by Senior Lender to be paid to it as a condition to its consent, and Sellers agree to pay the portion of any such fee exceeding $50,000. (h) Sellers shall provide Purchaser with evidence reasonably satisfactory to Purchaser that at or before Closing the membership interest of ▇▇▇▇▇ in Group has been redeemed or extinguished or acquired by another member of Group and that ▇▇▇▇▇ has been paid all amounts due to ▇▇▇▇▇ in consideration thereof as provided in the Operating Agreement of Group and any other agreements pertaining thereto (“▇▇▇▇▇ Redemption”). (i) governmental or quasi-governmental approval of changes or modifications in use or zoning, or (ii) modification of any existing land use restriction, or (iii) consents to assignments of any service contracts or other agreements which Purchaser shall have received a zoning certification requests, or (iv) endorsements to Purchaser's Owner's Title Policy, or (v) financing for the Real Property issued by ▇▇▇▇▇▇▇▇ County, Ohio in form and substance reasonably acceptable to Purchaser (the “Zoning Certificate”). (j) Purchaser shall have received a fully executed original acquisition of the Escrow AgreementProperty. (k) Purchaser shall have received acceptable evidence that Sellers’ Representative Guarantor has the net worth required under Section 7.2(c)(viii) of this Agreement. Such evidence shall be, at the election of Sellers’ Representative Guarantor, in the form of financial statements or in the form of a certification from the accountants of Sellers’ Representative Guarantor. (l) Purchaser shall have received the Updated Survey. (m) [intentionally omitted] (n) The existing manager of the Property shall have waived any claim by it for indemnity under all existing agreements for management of the Property to which the existing manager is a party and have consented to the termination of the existing agreements pursuant to documentation (the “Management Waiver”) reasonably acceptable to Purchaser and such existing manager. Back to Contents (o) The Title Company shall have irrevocably and unconditionally committed to issue a title insurance policy to Purchaser in the amount of the Purchase Price with the standard exceptions removed and subject only to the other exceptions shown in the Title Commitment which have been approved or deemed approved by Purchaser consistent with the provisions of this Agreement, together with such endorsements as Purchaser may request, including without limitation a non-imputation endorsement (ALTA Form 15), contiguity endorsement, and survey endorsement. (p) Seller shall have received and delivered to Purchaser estoppel certificates from all parties to the Operating Agreement reflecting that Owner is not in breach of any obligation under the Operating Agreement. (q) The Senior Lender shall have released ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ from the Released Obligations and an Affiliate of the Purchaser acceptable to the Senior Lender shall have executed such documents as may be required by the Senior Lender to assume the Released Obligations (and Purchaser shall cooperate with Sellers in communications and any negotiations with the Senior Lender, with the intention of attaining such result).