Common use of Withdrawn Properties Clause in Contracts

Withdrawn Properties. (a) Other than with respect to a Withdrawn Property pursuant to Section 5.2(c), the Sellers shall have the right to adjourn the Initial Closing for a reasonable period not exceeding the Outside Date to cure any Property Material Adverse Effect or other issues, conditions or circumstances that make any Property a Withdrawn Property (each, a “Correctible Condition”) for the purpose of allowing the Sellers the opportunity to effectuate such cure (to the extent such cure is reasonably capable of being effected during such period), and if such cure is not effected on or prior to the end of such period, the Buyer may elect to waive such matter or to treat such Property as a Withdrawn Property. In lieu of effecting a cure pursuant to the foregoing, the Sellers may instead agree with the Buyer that the Sellers shall effect such cure after the Initial Closing pursuant to an agreement in form and substance reasonably acceptable to the Buyer, which, unless otherwise agreed upon by Buyer in its sole discretion, includes an obligation on behalf of the Sellers to escrow cash or provide a surety bond equal to 125% of the amount mutually agreed upon by the Buyer and the Sellers as required to cure such Correctible Condition, in which event such Property shall not be a Withdrawn Property. In the event any Property becomes a Withdrawn Property, the Initial Closing Date Consideration shall be reduced by an amount equal to the Purchase Price allocated to such Property set forth in Exhibit C. (b) In the event that prior to the Initial Closing, the aggregate number of Withdrawn Properties is greater than three or the aggregate Purchase Price allocated to all Withdrawn Properties as set forth in Exhibit C is greater than $110,000,000, this Agreement may be terminated in its entirety at the election of the Buyer by written notice given to the Sellers delivered within the 10 days following the date on which the right first becomes available. (c) In the event that any Property of the REIT II Sellers becomes a Withdrawn Property prior to the expiration of the Inspection Period, this Agreement may be terminated in its entirety at the election of the Sellers by written notice given to the Buyer delivered within the five Business Days following the date on which the right first becomes available.

Withdrawn Properties. (a) Other than with respect A "WITHDRAWN PROPERTY" shall be any Unapproved Property, Damaged Property or Condemned Property as to a Withdrawn Property which this Agreement has been terminated pursuant to Section 5.2(c)1.2, the Sellers shall have the right to adjourn the Initial Closing for a reasonable period not exceeding the Outside Date to cure Section 1.3, Section 14.2 ----------- ----------- ------------ or Article 15, respectively, or any Real Property Material Adverse Effect or other issues, conditions or circumstances that make any Property a Withdrawn Property (each, a “Correctible Condition”) for the purpose of allowing the Sellers the opportunity to effectuate such cure (which has tax exempt bond ---------- financing associated therewith and which if transferred to the extent such cure is reasonably capable of being effected during such period)Operating Company pursuant this Agreement, and if such cure is not effected on either by direct conveyance or prior to by the end of such period, the Buyer may elect to waive such matter or to treat such Property as a Withdrawn Property. In lieu of effecting a cure pursuant to the foregoing, the Sellers may instead agree with the Buyer that the Sellers shall effect such cure after the Initial Closing pursuant to an agreement in form and substance reasonably acceptable to the Buyer, which, unless otherwise agreed upon by Buyer in its sole discretion, includes an obligation on behalf transfer of the Sellers Partnership Interests in the Contributor which owns that Real Property, would cause the interest payable on such tax exempt bond financing to escrow cash or provide a surety bond equal cease to 125% of the amount mutually agreed upon by the Buyer and the Sellers as required to cure such Correctible Condition, in which event such Property shall not be a Withdrawn Propertytax exempt. In the event any Real Property becomes a Withdrawn Property, the Initial Closing Date Consideration Schedule 2.1(b) shall be reduced by an amount equal revised to delete the loan associated with such Withdrawn Property for the definition of Assumed Loans and the TCR Representatives and the Transferee shall each use good faith efforts to mutually agree upon the assigned value for that Real Property (the "ASSIGNED VALUE"), taking into account the relation of the Withdrawn Property to the Purchase Price allocated value of the entire portfolio of Real Properties being acquired, unless the Assigned Value is specified on Schedule -------- 2.8, in which event the Assigned Value for the Real Property shall be the --- Assigned Value so specified on Schedule 2.8. If the parties are unable to such Property set forth in Exhibit C. (b) In agree ------------ on the event that Assigned Value by the fifth Business Day prior to the Initial ClosingClosing Date, then either party may request binding arbitration of the Assigned Value by the following method. Ernst & Young LLP is hereby appointed by both parties as the neutral arbitrator (the "ARBITRATOR") of the Assigned Value; provided, that if for any reason Ernst & Young LLP is unable to act as the Arbitrator, Ernst & Young LLP shall appoint an arbitrator to serve in its place. The party electing determination by the Arbitrator shall give written notice to the Arbitrator and the other party of such election. On the date (the "SUBMISSION DATE") which is five (5) Business Days from the date of such notice, each party shall submit to the Arbitrator its proposed Assigned Value, together with any materials it wishes to submit in support of its position. The Arbitrator shall then make its own determination of value and, within ten (10) Business Days after the Submission Date, shall select, in the Arbitrator's sole discretion, the aggregate number of Withdrawn Properties is greater than three value proposed by one or the aggregate Purchase Price allocated to all Withdrawn Properties as set forth in Exhibit C is greater than $110,000,000, this Agreement may be terminated in its entirety at the election other of the Buyer by written notice given parties (the Arbitrator not being authorized to select any other value), which selected value shall then be the Sellers delivered within Assigned Value. In making its decision, the 10 days following the date on which the right first becomes available. (c) In the event that any Property Arbitrator may make such investigation of the REIT II Sellers becomes a Withdrawn Real Property prior to and the expiration of the Inspection Periodtransactions contemplated by this Agreement, this Agreement may be terminated in its entirety at the election of the Sellers by written notice given to the Buyer delivered within the five Business Days following the date on which the right first becomes availableand hold such hearings, as it deems appropriate.

Withdrawn Properties. (a) Other than with respect A "WITHDRAWN PROPERTY" shall be any Affected Property, Damaged Property or Condemned Property as to a Withdrawn Property which this Agreement has been terminated pursuant to Section 5.2(c)Sections 4.3 or 12.2 or Article 13, respectively, or any Real Property that has tax exempt bond financing associated therewith, the Sellers shall have interest payable on which would cease to be tax exempt as a result of the right to adjourn transactions contemplated by this Agreement; provided, however, that if any one of the Initial Closing for a reasonable period not exceeding the Outside Date to cure any Property Material Adverse Effect or other issues, conditions or circumstances that make any Property a Withdrawn Property (each, a “Correctible Condition”) for the purpose of allowing the Sellers the opportunity to effectuate such cure (to the extent such cure is reasonably capable of being effected during such period), and if such cure is not effected Properties listed on or prior to the end of such period, the Buyer may elect to waive such matter or to treat such Property as Schedule 3.5 becomes a Withdrawn Property. In lieu of effecting a cure pursuant to the foregoing, the Sellers may instead agree with the Buyer that the Sellers shall effect such cure after the Initial Closing pursuant to an agreement in form and substance reasonably acceptable to the Buyer, which, unless otherwise agreed upon by Buyer in its sole discretion, includes an obligation on behalf then all of the Sellers to escrow cash or provide a surety bond equal to 125% of the amount mutually agreed upon by the Buyer and the Sellers as required to cure such Correctible Condition, in which event such Property Properties listed on Schedule 3.5 shall not be a Withdrawn PropertyProperties. In the event any Real Property becomes a Withdrawn Property, the Initial Closing Date Consideration Schedule 3.2 shall be reduced by an amount equal revised to delete the Assumed Loan associated with such Withdrawn Property from the definition of Assumed Loans and the TCR Representatives and the Transferee shall each use good faith efforts to mutually agree upon the assigned value for the Property Partnership that owns such Real Property (the "ASSIGNED VALUE"), taking into account the relation of the Withdrawn Property to the Purchase Price allocated value of the entire portfolio being acquired as a result of the transactions contemplated by this Agreement. If the parties are unable to such Property set forth in Exhibit C. agree on the Assigned Value by the fifth (b5th) In the event that Business Day prior to the Initial Closingapplicable Closing Date, then either party may request binding arbitration of the Assigned Value by the following method. Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ is hereby appointed by the parties as the neutral arbitrator (the "ARBITRATOR") of the Assigned Value; provided that if, for any reason Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ is unable to act as Arbitrator, Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ shall appoint an arbitrator to serve in its place. The party electing determination by the Arbitrator shall give written notice to the Arbitrator and the other party of such election. On the date (the "SUBMISSION DATE") that is five (5) Business Days from the date of such notice, each party shall submit to the Arbitrator its proposed Assigned Value, together with any materials it wishes to submit in support of its position. The Arbitrator shall then make its own determination of value and, within ten (10) Business Days after the Submission Date, shall select, in the Arbitrator's sole discretion, the aggregate number of Withdrawn Properties is greater than three value proposed by one or the aggregate Purchase Price allocated to all Withdrawn Properties as set forth in Exhibit C is greater than $110,000,000, this Agreement may be terminated in its entirety at the election other of the Buyer by written notice given parties (the Arbitrator not being authorized to select any other value), which selected value shall then be the Sellers delivered within Assigned Value. In making its decision, the 10 days following the date on which the right first becomes available. (c) In the event that any Property Arbitrator may make such investigation of the REIT II Sellers becomes a Withdrawn Real Property prior to (including the expiration value of any tax exempt financing) and the Inspection Periodtransactions contemplated by this Agreement, this Agreement may be terminated in its entirety at the election of the Sellers by written notice given to the Buyer delivered within the five Business Days following the date on which the right first becomes availableand hold such hearings, as it deems appropriate.

Withdrawn Properties. A "WITHDRAWN PROPERTY" shall be any (ai) Other than with respect Affected Property, (ii) Damaged Property, (iii) Condemned Property as to which this Agreement has been terminated pursuant to Sections 3.3, 16.2, or Article 17, respectively, or (iv) any other Real Property for which a Withdrawn Property condition to Closing has not been satisfied or waived pursuant to Section 5.2(c)13.2, For purposes of the determination of Net Value under Section 2.1, the Sellers shall have the right to adjourn the Initial Closing for a reasonable period not exceeding the Outside Date to cure "ASSIGNED VALUE" of any Property Material Adverse Effect or other issues, conditions or circumstances that make any Property a Withdrawn Property (eachshall be the amount that the TCR Group and the Transferee agree upon in good faith, a “Correctible Condition”) for taking into account the purpose relation of allowing the Sellers the opportunity to effectuate such cure (Withdrawn Property to the extent such cure is reasonably capable value of the entire portfolio of Real Properties being effected during such period), and if such cure is not effected on or prior to acquired including appropriate allocation of "going concern" value among the end of such period, the Buyer may elect to waive such matter or to treat such Property as a Withdrawn Property. In lieu of effecting a cure pursuant to the foregoing, the Sellers may instead agree with the Buyer that the Sellers shall effect such cure after the Initial Closing pursuant to an agreement in form and substance reasonably acceptable to the Buyer, whichReal Properties, unless otherwise agreed upon by Buyer in its sole discretion, includes an obligation the Assigned Value is specified on behalf of the Sellers to escrow cash or provide a surety bond equal to 125% of the amount mutually agreed upon by the Buyer and the Sellers as required to cure such Correctible ConditionSchedule 2.6, in which event such the Assigned Value for the Real Property shall not be the Assigned Value so specified on Schedule 2.6. If the parties are unable to agree on the Assigned Value by the fifth business day after the determination that a Property is a Withdrawn Property, then either party may request binding arbitration of the Assigned Value by the following method. Ernst & Young/Kenn▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ hereby appointed by both parties as the neutral arbitrator (the "ARBITRATOR") of the Assigned Value; provided, that if for any reason Ernst & Young/Kenn▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ unable to act as the Arbitrator, Arth▇▇ ▇▇▇e▇▇▇▇, ▇▇P shall be appointed as Arbitrator to serve in its place. The party electing determination by the Arbitrator shall give written notice to the Arbitrator and the other party of such election. On the date (the "SUBMISSION DATE") which is five (5) business days from the date of such notice, each party shall submit to the Arbitrator its proposed Assigned Value, together with any materials it wishes to submit in support of its position. The Arbitrator shall then make its own determination of value and, within ten (10) business days after the Submission Date, shall select, in the Arbitrator's sole discretion, the value proposed by one or the other of the parties (the Arbitrator not being authorized to select any other value), which selected value shall then be the Assigned Value. In making its decision, the Arbitrator may make such investigation of the Real Property and the transactions contemplated by this Agreement, and hold such hearings, as it deems appropriate. In the event the Withdrawn Property has been withdrawn because either the holder of an Owner Interest not being transferred no longer consents to the transaction, or any Property becomes partner of a Withdrawn PropertyContributor no longer consents to the transaction, the Initial Closing Date Consideration Assigned Value shall be reduced increased by an amount equal to five percent (5%) but in no event more than One Million Dollars ($1,000,000.00) in the Purchase Price allocated to such Property set forth in Exhibit C. (b) aggregate for all Withdrawn Properties. In the event that prior to the Initial Closing, the aggregate number of Withdrawn Properties as to which this Agreement has been terminated pursuant to Sections 3.3, 13.2, 16.2 or Article 17 is greater than three or the aggregate Purchase Price allocated to all (3) Withdrawn Properties as set forth in Exhibit C is greater than $110,000,000Properties, this Agreement may be terminated in its entirety at the election of the Buyer TCR Group or Transferee by written notice given on or prior to five (5) business days after the Sellers delivered within the 10 days following the date on which the right first becomes available. fourth (c4th) In the event that any Property of the REIT II Sellers property becomes a Withdrawn Property prior to the expiration of the Inspection Period, this Agreement may be terminated in its entirety at the election of the Sellers by written notice given to the Buyer delivered within the five Business Days following the date on which the right first becomes availableProperty.