Common use of Failure of Condition Clause in Contracts

Failure of Condition. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit.

Failure of Condition. If A. Except (i) as set forth in subparagraph B below and (ii) for failure of the conditions condition set forth in Section 12(a13.2.E (Greeley’s Conditions) which shall be subject to Section 6.1. A (Conditions to Obligations Governing Body Approval), in the event of Seller) or the conditions set forth a failure of any condition contained in Section 12(b13.2 (Greeley’s Conditions), Greeley may in its sole discretion: (1) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate Terminate this Agreement by written notice to the otherWingfoot, in which event: (a) all funds deposited by Greeley under this Agreement as of such date shall be immediately returned to Greeley and Seller shall, subject to Section 24(a(b) and Section 24(b), Greeley shall be entitled to reimbursements from Wingfoot and Wingfoot shall be obligated to pay Greeley for all reasonable, out-of-pocket costs incurred by Greeley subsequent to the Deposit and/or Effective Date and prior to pursue its remedies set forth the termination arising from or in connection with this Agreement, which shall include but is not limited to the Inspection Costs; or (2) Greeley may waive such default or condition and effectuate the Closing; or (3) If the failure of condition consists of a default by Wingfoot that can be cured by action within the reasonable control of Wingfoot, Greeley may elect to treat this Agreement as being in full force and effect and Greeley shall have the right to specific performance, monetary damages arising out of such default, or both, EXCEPT THAT GREELEY SPECIFICALLY WAIVES ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES. B. In the event of a failure of any condition contained in Section 24(a13.1 (Wingfoot’s Conditions) above, Wingfoot may in its sole discretion: (Purchaser Defaults1) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate Terminate this Agreement by written notice to Greeley, in which event Wingfoot shall retain the otherDeposit, and Purchaser shall, subject as liquidated damages pursuant to Section 24(a13.4 (Pre- Closing Liquidated Damages), be entitled in addition to receive a return reimbursements from Greeley of all of Wingfoot’s reasonable, out-of-pocket costs incurred by Wingfoot subsequent to the DepositEffective Date and prior to the termination arising from or in connection with this Agreement; or (2) Wingfoot may waive such default or condition and effectuate the Closing and Wingfoot shall have the right to recover monetary damages arising out of such default,, EXCEPT THAT WINGFOOT SPECIFICALLY WAIVES ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT DAMAGES. WINGFOOT HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO SPECIFIC PERFORMANCE IN THE EVENT OF A DEFAULT BY GREELEY.

Failure of Condition. If In the event that any of the conditions set forth in Section 12(a6.1 shall not have occurred prior to (or shall not occur simultaneously with) the scheduled Closing Date, then upon Buyer's request, Seller agrees to delay the Closing for a reasonable period, but in no event exceeding sixty (Conditions 60) days beyond the scheduled Closing Date, to Obligations allow such condition to occur. In the event that any of Seller) or the conditions set forth in Section 12(b6.2(b) (Conditions to Obligations of Purchaseror Section 6.2(e) are shall not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing have occurred prior to the initial Closing Date (or shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(iioccur simultaneously with) that Purchaser pay the Purchase Price on the scheduled Closing Date, then upon Seller's request and subject to Buyer's written approval, which approval shall not be unreasonably withheld, the Closing shall be delayed for a reasonable period, in no event exceeding thirty (30) days beyond the scheduled Closing Date, to allow such condition to occur. If In the event that any of the conditions set forth in Section 12(a6.2(a), Section 6.2(c), Section 6.2(d) or Section 6.2(f) shall not have occurred prior to (Conditions or shall not occur simultaneously with) the scheduled Closing Date, then upon Seller's request and subject to Obligations Buyer's written approval, which approval may be withheld in Buyer's sole and absolute discretion, the Closing shall be delayed for a reasonable period, in no event exceeding sixty (60) days beyond the scheduled Closing Date, to allow such condition to occur. If any condition for the benefit of Buyer or Seller shall not occur prior to the Closing Date (as the same may be extended as provided above), then Buyer, in the case of a Buyer's condition, or Seller) are not satisfied by , in the expiration case of such 15-day period or if neither party elects such an extensiona Seller's condition, either party may terminate this Agreement by delivering a written termination notice to the otherother party, and Seller shall, subject as the terminating party's sole remedy with respect to Section 24(a) and Section 24(b), be entitled such failed condition. In the event that this Agreement is terminated due to the Deposit and/or to pursue its remedies failure of a condition set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth this Article 6, then except as otherwise expressly provided herein, including in Section 12(b) (Conditions Article 12 with respect to Obligations of Purchaser) are not satisfied a default by the expiration of such 15-day period Buyer or if either party does not elect such extension, either party may terminate this Agreement by written notice Seller or in Article 4 with respect to survey or title defects and with respect to the otherMutual Easement Agreement and Restaurant CC&Rs, Escrow Holder shall return the Deposit to Buyer, the parties shall share equally any cancellation fees of Escrow Holder, and Purchaser shall, subject neither party shall have any further obligations hereunder to Section 24(a), be entitled the other except pursuant to receive a return any provision hereof which expressly survives the termination of the Depositthis Agreement.

Failure of Condition. If all of the conditions to Closing set forth above in Section 5.1.1 have not been satisfied by the Closing Date, provided the same is not the result of Developer’s failure to perform in any material respect any of its obligations hereunder, Developer shall have the option, in its sole discretion, to: (i) waive such condition(s) and proceed to Closing hereunder; (ii) other than with respect to the conditions set forth in Section 12(a5.1.1 that have not been met due to Force Majeure, terminate this Agreement by delivering written notice of such termination to District, whereby the Project Deposit shall be returned to Developer and the Parties shall be released from any further liability or obligation hereunder except those that expressly survive termination of this Agreement; provided, however, if the failure to satisfy the condition precedent is due to a District Default, Developer may exercise its remedies in Section 8.3; or (iii) delay Closing for thirty (Conditions 30) days (or such longer time as may be agreed to Obligations of Sellerby the Parties) or to permit District to satisfy the conditions to Closing set forth in Section 12(b) 5.1.1. In the event Developer proceeds under clause (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the iii), Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall occur within thirty (1530) days to allow such after the conditions precedent set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be Section 5.1.1 have been satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that but in no event later than the Outside Closing Date. District shall Purchaser have use good faith efforts and diligently pursue satisfaction of the right conditions to extend the Closing Date if Purchaser fails to satisfy the condition set forth in Section 12(a)(ii5.1.1. In the event such conditions precedent have not been satisfied by the end of the thirty (30) that Purchaser pay day period, provided the Purchase Price on same is not the scheduled result of Developer’s failure to perform any obligation of Developer hereunder, Developer may again proceed under clause (i), (ii) or (iii) above, in its sole discretion. The foregoing notwithstanding, Closing shall not occur after the Outside Closing Date. If the conditions Closing has not occurred by such date, this Agreement shall immediately terminate and be of no further force and effect, except for those provisions that expressly survive termination of this Agreement. Notwithstanding anything set forth above to the contrary, if any such failed condition is a District Default hereunder, then Developer may exercise its remedies in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit8.3.

Failure of Condition. If Purchaser is unable to timely satisfy (and Seller has not waived in writing) the conditions precedent to Seller’s obligation to effect the Closing (or effect the Closing with respect to any Individual Premises, as applicable) as set forth in Section 12(a10(f), then such failure shall constitute a default hereunder, in which case, Section 20(a) (Conditions shall govern. If Seller is unable to Obligations of Seller) or timely satisfy the conditions precedent to Purchaser’s obligation to effect the Closing (or effect the Closing with respect to any Individual Premises, as applicable) as set forth in Section 12(b10(g) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled unless Purchaser is willing to waive such conditionconditions), either party then (i) Seller may, provided that such party is not then from time to time, if it so elects and without any abatement in material default under this Agreementthe Purchase Price, extend adjourn the Scheduled Closing Date for a period not to exceed fifteen or periods that, when aggregated with the number of days which Seller has previously adjourned the Closing in accordance with this Agreement, including, without limitation, Section 5 hereof (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Sellerbut excluding Section 36(b) and 12(b) (Conditions to Obligations of Purchaser) to be satisfiedSection 38(e), it being agreed that any extension by Seller or Purchaser under Section 36(b) or Section 38(e) shall be in addition to any extension(s) under this Section 10(h)), does not exceed ninety (90) days in the inability of either party aggregate with respect to satisfy a condition any Individual Premises, and (ii) if Seller does not so elect to adjourn such Scheduled Closing prior to the initial Closing Date Date, Purchaser shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the adjourn such Scheduled Closing Date if from time to time for a period or periods that, when aggregated with the number of days which Purchaser fails has previously adjourned such Scheduled Closing Date in accordance with this Section 10(h), does not exceed thirty (30) days in the aggregate with respect to any Individual Premises by written notice thereof to Seller within five (5) business days after the applicable Scheduled Closing Date, time being of the essence. If Purchaser elects to adjourn such Scheduled Closing Date as provided in clause (ii) above, then (A) Seller, in good faith, shall seek to satisfy the condition conditions to Purchaser’s obligation to proceed with the applicable Closing (it being agreed that Seller shall have no obligation to expend any funds, commence any litigation or otherwise incur any liability in Section 12(a)(iiorder to satisfy any such conditions), and (B) that Purchaser and Boston Properties Limited Partnership, a Delaware limited partnership (“BPLP”), shall be obligated, on a joint and several basis, to pay to Seller a per diem amount equal to (x) $64,259.00 with respect to the Purchase Price 125 West 55th Premises, (y) $89,367.00 with respect to the 2GCT Premises, and (z) $59,152.00 with respect to the 540 Madison Premises, in each case on a current monthly basis on the scheduled 1st]of each calendar month in arrears from and after such Scheduled Closing DateDate (prior to any such adjournment) until the earliest to occur of (I) the Closing for the applicable Individual Premises, (II) the termination of this Agreement in respect of such Individual Premises, and (III) the last day of the adjournment period to which Purchaser adjourned the Scheduled Closing Date (which amounts shall be due and payable whether or not any Closing occurs, and which amounts shall be non-refundable and Seller shall have no liability to Purchaser therefor whatsoever). If the conditions Scheduled Closing Date for more than one Individual Premises is adjourned by Purchaser pursuant to the immediately preceding sentence, then the aggregate amount of such payments shall equal the sum of the per diem amounts set forth in clauses (x), (y) and (z) above for the applicable Individual Premises for which the Scheduled Closing Date has been adjourned. BPLP is countersigning this Agreement to indicate its agreement to be bound by and liable under this Section 12(a10(h). If, after any such extension, the conditions precedent to Purchaser’s obligation to effect the Closing continue not to be satisfied (and Purchaser has not waived the same) (Conditions to Obligations or neither Seller nor Purchaser elects such extension and, in either case, such failure of condition precedent is not the result of Seller) are ’s default hereunder (it being agreed that, without limitation, the inability to deliver the Required Tenant Estoppel Certificates is not satisfied a default unless such inability derives from Seller’s failure to request the Required Tenant Estoppel Certificate as required by the expiration of such 15-day period or if neither party elects such an extensionSection 36 hereof), either party may then Purchaser shall be entitled to terminate this Agreement by written notice in its entirety as to all Individual Premises; provided, that once the closing under the GM Contribution Agreement has occurred, Purchaser’s right under this Section 10(h) shall be to terminate this Agreement as to the otherapplicable Individual Premises only, and Seller shallin either case by notice given to Seller. Upon the timely giving of any termination notice under the preceding sentence, subject (i) if Purchaser shall have validly elected to Section 24(a) and Section 24(b)terminate this Agreement in its entirety, then Purchaser shall be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the DepositDeposit and this Agreement shall terminate and neither party hereto shall have any further rights or obligations hereunder other than those which are expressly provided to survive the termination hereof, and (ii) if Purchaser shall have validly elected to terminate this Agreement with respect to the applicable Individual Premises only, then Purchaser shall be entitled to a return of the portion of the Deposit allocable to such applicable Individual Premises only and this Agreement shall terminate with respect to the applicable Individual Premises only and neither party hereto shall have any further rights or obligations hereunder with respect to such Individual Premises only other than those which are expressly provided to survive the termination hereof. For the avoidance of doubt, it is understood and agreed that notwithstanding any termination of this Agreement by Purchaser with respect to an Individual Premises for failure of condition as provided above, Purchaser shall remain obligated hereunder with respect to the remaining Individual Premises in all respects. If the provisions of clause (ii) above would be applicable, except that such failure of condition precedent is the result of Seller’s default hereunder (whether with respect to all or less than all of the Individual Premises), then Section 20(b) shall govern. The provisions of this Section 10(h) shall not apply to any failure to obtain Lenders’ Consent or close a Loan Assumption, the failure of such conditions, and the respective rights of the parties to adjourn a Scheduled Closing Date by reason thereof, being governed by the applicable provisions of Section 38. The provisions of this Section 10(h) shall survive any termination of this Agreement.

Failure of Condition. (i) Transferee may, by notice to Transferor, adjourn the Closing Date from time to time, but in no event later than January 30, 2004. (ii) If the conditions Transferee shall have adjourned the Closing Date to January 30, 2004 under Section 6.3(a)(i), and on January 30, 2004, the condition to Closing set forth in Section 12(a6.1(e) shall not be satisfied (Conditions without regard to Obligations the parenthetical contained in such section), Transferee may, by notice to Transferor, adjourn the Closing Date from time to time but in no event later than April 30, 2004; provided, that no such adjournment shall be effective unless Transferee shall deliver to Escrow Holder upon the first such adjournment pursuant to this Section 6.3(a)(ii) Five Million Dollars ($5,000,000) by wire transfer of Seller) or immediately available federal funds to the conditions account set forth on Exhibit X, which amount shall be added to, and deemed part of, the Deposit. (b) Subject to Sections 6.3(c) and (d) below, if, on the Closing Date (as the same may have been adjourned pursuant to the terms of this Agreement), (x) any condition to Transferor's obligation to close hereunder shall not be satisfied, then Transferor shall be entitled to terminate this Agreement or (y) any condition to Transferee's obligation to close hereunder shall not be satisfied, then Transferee shall be entitled to terminate this Agreement, or (z) any judgment, injunction, order, decree or action by any governmental entity of competent authority preventing or prohibiting the Closing shall have become final and non-appealable, then either Transferor or Transferee shall be entitled to terminate this Agreement, in Section 12(beach such case, by delivering notice thereof to the other party. (c) (Conditions to Obligations of Purchaser) are not satisfied or waived If Transferee shall notify Transferor at any time on or before the Closing Date by that the party entitled to waive such condition, either party may, provided that such party condition in Section 6.1(f) is not then in material default under this Agreementsatisfied (any such notice, extend a "MAC Notice") then notwithstanding the Closing Date for a period not to exceed fifteen provisions of Section 6.3(b): (15i) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date Transferor shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend give a written notice to Transferee (the Closing Date if Purchaser fails "Remediation Notice") within 10 days following Transferor's receipt of any MAC Notice stating that Transferor intends to attempt to satisfy such condition, provided, that Transferor shall have no obligation to deliver the Remediation Notice or to remedy any such condition regardless of whether the Remediation Notice is given by Transferor; and (ii) if the Remediation Notice shall be given to Transferee, then (A) if the condition in Section 12(a)(ii6.1(f) that Purchaser pay the Purchase Price shall be satisfied on the scheduled date that is thirty days after the date the Remediation Notice was given by Transferor (the "Remediation Date") then the Closing Date. If Date shall be adjourned at Transferee's option from time to time to a date not later than the conditions set forth later of (x) the date thirty days after the Remediation Date or (y) such other date to which the Closing Date may be adjourned pursuant to Section 6.3(a) above and (B) if the condition in Section 12(a6.1(f) (Conditions to Obligations of Seller) are shall not be satisfied by on the expiration of such 15-day period or if neither party elects such an extensionRemediation Date, either party then Transferee may terminate this Agreement by written notice to Transferor. (d) If the condition in Section 6.1(h) shall not be satisfied on the Closing Date, with respect to either or both of the Existing Mortgages (the Existing Mortgage or Mortgages as to which the condition is so unsatisfied is called the "Relevant Existing Mortgage") but all other conditions are satisfied, the parties shall nevertheless proceed to Closing subject to and in accordance with the other terms of this Agreement, and at Transferor's option, (i) Transferor shall pay to the holder of each Relevant Existing Mortgage all sums necessary to satisfy such Relevant Existing Mortgage and the affected Property or Properties shall be transferred free and clear of such Relevant Existing Mortgage, or (ii) such Property or Properties shall not be transferred pursuant to this Agreement and the Allocated Value of the affected Property or Properties shall be accounted for by reducing the amount of the Existing Unsecured Debt assumed by Transferee or such other method as Transferee and Transferor may reasonably agree. (e) If the condition in Section 6.1(c) shall not be satisfied on the Closing Date in respect of one or more Properties solely by reason of the existence of liens, encumbrances and other title exceptions which are not Permitted Exceptions, are not Voluntary Encumbrances and cannot be satisfied solely by the payment of a liquidated sum, but all other conditions are satisfied, the parties shall nevertheless proceed to Closing subject to and in accordance with the other terms of this Agreement, and, at Transferee's option, (i) Transferee may effect a substitution pursuant to Section 12.1 in order to replace such Property or Properties, or (ii) such Property or Properties shall not be transferred pursuant to this Agreement and the Allocated Value of the affected Property or Properties shall be accounted for by reducing the amount of the Existing Unsecured Debt assumed by Transferee or such other method as Transferee and Transferor may reasonably agree. (f) If this Agreement shall terminate pursuant to Section 6.3(b), then neither party shall have any further obligation or liability to the other, and Seller shallexcept for any such obligation or liability which expressly survives the termination of this Agreement; provided, subject that if any such termination is due to a party's default in performing its material obligations hereunder, then the remedies under Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit8.2 shall control.

Failure of Condition. If If, for any reason, this Agreement fails to become effective as provided in Paragraphs 3, 9 and/or 12, each and every obligation under the conditions set forth in Section 12(a) (Conditions Agreement shall cease to Obligations be of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such conditionany force and effect, either party may, provided that such party is not then in material default under and this Agreement, extend any dismissal entered pursuant to this Agreement, the Closing Date Final Judgment and any orders entered in connection with the Settlement, dismissal order or Final Judgment, shall be vacated, rescinded, canceled, annulled and deemed “void” and/or “no longer equitable” and/or set aside for a period not reason that otherwise “justifies relief” for purposes of Fed.R.Civ.P. 60 and/or Mo. Rule 74.06 and the Parties shall be returned to exceed fifteen (15) days the status quo prior to allow such conditions set forth in Sections 12(a) (Conditions entering into this Agreement with respect to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfiedthe Litigation as if this Agreement had never been entered into, it being agreed except that the inability provisions of either party to satisfy a Paragraph 1 hereof shall survive and remain binding on the Parties and effective in all respects regardless of the reasons for such failure of condition to Closing prior to and any Party may reassert their claims against the initial Closing Date shall not be considered a default by other Party or Parties in the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, Litigation; provided, however, that in no event shall Purchaser have if at such time the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period Litigation is terminated or otherwise concluded, or if neither party elects the Named Plaintiffs and/or the LaSalle Settlement Class Members are precluded from reasserting their claims against XxXxxxx in the Litigation after requesting the Court to allow them to do so, then the Named Plaintiffs and the LaSalle Settlement Class Members may commence a new lawsuit or proceeding against LaSalle, or any one or more of them, to pursue the claims and causes of action that they are currently asserting in the Litigation as if the claims had been reasserted in the Litigation as stated herein; provided further, however, that any such an extensionre-commenced lawsuit shall be filed in the United States District Court for the Western District of Missouri, either party may terminate Western Division. In such event, claims time- barred as of the date of this Agreement by written notice remain so and the Settling Defendant retain all defenses, privileges and immunities they had prior to the otherexecution of the Agreement. Further, the Agreement and all negotiations, court orders and proceedings relating thereto shall be without prejudice to the rights of any and all parties hereto, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled evidence relating to the Deposit and/or to pursue its remedies set forth Agreement and all negotiations relating thereto shall not be admissible or discoverable in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period Litigation or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositotherwise.

Failure of Condition. If, prior to Closing, Seller discloses to Purchaser or Purchaser discovers that (i) title to the Property is subject to defects, limitations or encumbrances other than Permitted Encumbrances; (ii) any representation or warranty of Seller contained in this Agreement is or, as of the Closing Date, will be untrue, (iii) there is a landlord default under the Lease, or (iv) a voluntary or involuntary filing for the protection of Lessee under the Federal Bankruptcy Act has been made, then Purchaser shall promptly give Seller written notice of its objection thereto. In such event, Seller may elect to postpone the Closing for thirty (30) days and attempt to cure such objection, provided that Purchaser may not object to the state of title of the Property on the basis of matters set out in Section 3.4 above. The parties acknowledge and agree that Seller shall have no obligation to cure any objection described within clauses (i) or (ii) above. If Purchaser fails to waive any such objection within ten (10) days after notice from Seller that Seller will not cure the conditions objection, this Agreement will terminate automatically and Seller shall promptly direct the Title Company to return the Deposit to Purchaser, provided that Purchaser shall not be in default hereunder, and neither party shall have any liability to the other except for the Surviving Obligations. For the purposes of this Agreement, any title defect, limitation or encumbrance other than a Permitted Encumbrance shall be deemed cured if Title Company will agree to issue an ALTA owner’s title insurance policy to Purchaser for the Purchase Price, which policy takes no exception for such defect, limitation or encumbrance and is issued for no additional premium or for an additional premium if Seller agrees to pay such additional premium upon Closing. Purchaser’s obligation to close on the acquisition of the Property shall be further conditioned on the following: 10.3.1 The tenant under the Lease shall have executed an amendment to the Lease in form and substance reasonably acceptable to Purchaser that provides that the tenant’s pro rata share of common area maintenance charges, taxes, insurance and any other charge which is calculated on a pro rata basis shall be calculated based on the square footage of the premises relative to the square footage of the building located on the Property, and not based on the square footage of the premises relative to the square footage of other buildings within the phase of which the Property is a part. 10.3.2 In the event that the a condition set forth in Section 12(a) (Conditions to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are 10.3.1 is not satisfied or waived on or before the Closing Date by the party entitled to waive such conditionat Closing, Purchaser may, at Purchaser’s election, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen of thirty (1530) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing Seller to satisfy such condition unless condition, or (b) terminate this Agreement and receive a full return of the Deposit. In the event that such inability results from condition, together with the breach remaining conditions (if any) set forth herein, is unsatisfied as of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if as extended, Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement and receive a full return of the Deposit by providing written notice to Seller and the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the DepositTitle Company.

Failure of Condition. If Subject to any applicable extensions pursuant to Section 9.2 hereof, if the conditions precedent set forth in Section 12(a) (Conditions this Article IX to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions either party’s obligation to Obligations of Purchaser) are not satisfied or waived on or before effect the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a satisfied (and Seller or Purchaser, as the case may be, has not waived the same) and such failure of condition precedent is not the result of the other party’s default by hereunder, then (i) the party failing whose condition precedent has not been satisfied shall be entitled to satisfy such condition unless such inability results from terminate this Agreement by notice thereof to the breach of such other party’s express , and (ii) the other party shall not be in default hereunder. If this Agreement is so terminated, then Seller shall be entitled to receive or retain the Deposit and neither party shall have any further obligations hereunder, except for the Surviving Obligations, provided, however, that in no event subject to the following: (1) if such failure of condition precedent is the result of either party’s default hereunder, then Section 12.1 and Section 12.2, as applicable, shall Purchaser have the right to extend the Closing Date govern; (2) if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a9.1(a) (Conditions to Obligations of Seller) are shall not satisfied by the expiration of such 15-day period or if neither party elects such an extensionbe satisfied, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to then the Deposit and/or shall be returned to pursue its remedies Buyer. (3) if (i) the condition set forth in Section 24(a9.1(c)(1) shall not be satisfied on account that a Material Representation is untrue due to changed facts or circumstances not constituting a default by Seller hereunder, and (ii) the changed facts or circumstances (not otherwise approved or caused by Purchaser) would reasonably be expected to have a Material Adverse Effect on Purchaser Defaultsor Purchaser’s Intended Development, then an amount equal to the Initial Non-Refundable Portion of the Deposit and, if applicable, any Initial Adjournment Deposit and Second Adjournment Deposit shall be retained or delivered to Seller and the balance of the Deposit shall be returned to Purchaser; and (4) hereof. If if the conditions condition set forth in Section 12(b9.1(c)(4) (Conditions to Obligations of Purchaser) are shall not satisfied by the expiration of such 15-day period or if either party does not elect such extensionbe satisfied, either party may terminate this Agreement by written notice an amount equal to the otherInitial Non-Refundable Portion and, if applicable, any Initial Adjournment Deposit and Purchaser shall, subject Second Adjournment Deposit shall be retained or delivered to Section 24(a), be entitled to receive a return Seller and the balance of the DepositDeposit shall be returned to Purchaser.

Failure of Condition. If Except as otherwise provided in this Agreement, if the conditions set forth in Section 12(a) (Conditions Escrow fails to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived close on or before the then-extant Scheduled Closing Date by the party entitled to waive such conditionfor any reason whatsoever, including, without limitation, a failure of a condition precedent set forth in this SECTION 9, either party mayBuyer or Seller, provided that such party is if not then in material default under this Agreement, extend may terminate the Escrow and this Agreement in accordance with the provisions of this Agreement; and, thereupon: 9.3.1 The costs of the Escrow through the Scheduled Closing Date shall be governed by SECTION 4.8.5; 9.3.2 Subject to the provisions of SECTION 3.5, all monies paid into the Escrow and all documents deposited in the Escrow shall be returned to the party paying or depositing the same together with interest earned thereon, upon execution by such party of an escrow cancellation instruction; 9.3.3 Except as provided in SECTION 4.8.5, each party shall pay its own costs and expenses; and 9.3.4 Each party shall be released from all obligations under this Agreement, except for a period not to exceed fifteen (15) days to allow such conditions the obligations set forth in Sections 12(a) SECTIONS 3.5, 8.1, 10, and 15.7. Without limiting the generality of the foregoing, if Seller terminates this Agreement due to a Buyer Breach, as described in SECTION 3.5, Seller shall be entitled (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaseri) to be satisfiedthe immediate return to Seller of all documents and instruments deposited by Seller in the Escrow or delivered to Buyer, it being agreed that upon demand therefor by Seller and without the inability necessity for any release thereof or approval of either party to satisfy a condition to Closing prior such release by Buyer; and (ii) to the initial Closing Date shall not be considered a default by immediate release to Seller of the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing DateDeposit as liquidated damages. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), Buyer shall be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of any funds or documents delivered into escrow, then Seller shall deliver to Escrow Holder immediately any consents, approvals or instructions which may be requested by Escrow Holder to return the Depositfunds to Buyer.

Failure of Condition. If (a) In the conditions set forth event of a failure of any condition contained in Section 12(a) (Conditions to Obligations 7.1 or 7.2 above which is not the result of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date a default by either party, the party entitled for whose benefit the condition existed may either waive the condition and proceed to waive such conditionClosing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, either all documents deposited by Seller shall be immediately returned to Seller, and neither party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall have any further rights or obligations hereunder (15) days to allow such conditions except as set forth in Sections 12(a) (Conditions to Obligations of Seller3.5(a) and 12(b(e), 3.6(b), 9.1, 11.2 and 11.12); (b) (Conditions In the event of a failure of any condition contained in Section 7.2 above due to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party failing shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller’s obligation to satisfy convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition unless contained in Section 7.1 above due to a default by Purchaser, Seller may in its sole discretion: (i) terminate this Agreement and Seller shall retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) Seller may waive such inability results from default and close the breach transaction. (d) Seller waives any rights it may have to specific performance in the event of such party’s express obligations hereunder, provided, however, that in no event shall a default by Purchaser have with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that Purchaser pay its exclusive remedies in the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions event of a default by Seller shall be to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(b)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.

Failure of Condition. If (a) In the event of a failure of any condition contained in Section 7.1 or 7.2 above which is not the result of a default by either party, the party for whose benefit the condition existed may either waive the condition and proceed to Closing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (b) In the event of a failure of any condition contained in Section 7.2 above due to a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller's obligation to convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition contained in Section 7.1 above due to a default by Purchaser, Seller may in its sole discretion: (i) terminate this Agreement and Seller shall be entitled to liquidated damages (including, if applicable, the retention of the Deposit), as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) Seller may waive such default and close the transaction. (d) Seller waives any rights it may have to specific performance in the event of a default by Purchaser with the exclusive remedy of Seller being the right to liquidated damages more fully described in Section 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller prior to closing and Purchaser acknowledges that its exclusive remedies in the event of such a default by Seller shall be to either terminate this Agreement in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the transaction in accordance with Section 7.3(b)(iii) above. (e) Anything herein to the contrary notwithstanding, in the event the transaction herein contemplated shall fail to close in accordance with the terms and conditions of this Agreement solely by reason of either (i) Seller's default hereunder or (ii) Seller's election to terminate this Agreement pursuant to Section 8.1(a) below (in either case when all material obligations of Purchaser have been satisfied as herein provided at the time of such Seller default or election), then, in addition to Purchaser's right to terminate this Agreement as set forth in Section 12(a7.3(b)(i) (Conditions to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive above, upon such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period termination Seller shall reimburse Purchaser an amount not to exceed fifteen $50,000 for costs and expenses actually incurred by Purchaser in connection with its due diligence and closing related costs (15including reasonable attorneys' fees and expenses), which sum shall be paid by Seller to Purchaser within ten (10) days of presentment by Purchaser of invoices and/or, receipts reasonably acceptable to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Seller substantiating Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations 's claim for reimbursement hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit.

Failure of Condition. If Buyer’s Conditions are solely for the conditions set forth benefit of Buyer and may be waived only by Buyer. Any such waiver or waivers of any of Buyer’s Conditions shall be in Section 12(a) (writing and shall be delivered to Seller. Buyer shall not act or fail to act for the purpose or with the intention of permitting or causing any of Buyer’s Conditions to Obligations fail. If any of Seller) or the conditions set forth in Section 12(b) (Buyer’s Conditions to Obligations of Purchaser) are is not satisfied or has not been so waived by Buyer on or before prior to the Closing Date Date, Buyer shall have the right to (i) Terminate this Agreement by written notice to Seller (and receive a return of the party entitled to waive entire Deposit); (ii) if such condition, either party may, provided that such party failure is not then in material default under this Agreementcaused by Seller, extend the Closing Date for a period not up to exceed fifteen ten (1510) days to allow time for Seller to cure or satisfy such conditions set forth condition; or (iii) if such failure arises from Seller’s breach of this Agreement or a failure to fulfill any of the Buyer’s Conditions enumerated in, Section 8.1 or 8.2, or Sections 8.3, 8.4, 8.6 and 8.7 due to an act or omission of Seller and as a consequence thereof Buyer elects to Terminate this Agreement, avail itself of any remedies provided in Sections 12(a) Section 11.2 (Conditions to Obligations for the avoidance of Seller) and 12(b) (Conditions to Obligations doubt, if a representation or warranty of Purchaser) Seller is untrue when made or as of the Closing but was not known to be satisfieduntrue by Seller or such untruth or inaccuracy was not intentionally, it being agreed that the inability knowingly made by Seller, or if a representation or warranty of either party to satisfy a condition Seller becomes untrue prior to Closing prior due to changes in circumstances not in the initial Closing Date control of Seller or not affirmatively and intentionally caused by Seller, neither such circumstance shall not be considered deemed a default by the party failing to satisfy such condition unless such inability results from the breach of such partythis Agreement). Notwithstanding the foregoing, nothing in this Section 8.8 shall affect Seller’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in accordance with Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) 4.28 hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit.

Failure of Condition. If (a) In the event of a failure of any condition contained in Section 7.1 or 7.2 above which is not the result of a default by either party, the party for whose benefit the condition existed may either waive the condition and proceed to Closing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (b) In the event of a failure of any condition contained in Section 7.2 above due to a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller’s obligation to convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition contained in Section 7.1 above due to a default by Purchaser after the expiration of the Inspection Period, Seller may in its sole discretion: (i) terminate this Agreement and retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) waive such default and close the transaction. (d) Seller waives any rights it may have to specific performance in the event of a default by Purchaser with the exclusive remedy of Seller being the right to liquidated damages more fully described in Section 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that its exclusive remedies in the event of a default by Seller shall be to either terminate this Agreement in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the transaction in accordance with Section 7.3(b)(iii) above. (e) Anything herein to the contrary notwithstanding, in the event the transaction herein contemplated shall fail to close in accordance with the terms and conditions of this Agreement solely by reason of Seller’s willful and bad faith refusal to close (when all other obligations of Seller and Purchaser have been satisfied as herein provided), then, in addition to Purchaser’s right to terminate this Agreement as set forth in Section 12(a7.3(b)(i) (Conditions to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive above, upon such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period termination Seller shall reimburse Purchaser an amount not to exceed fifteen $75,000 for costs and expenses actually incurred by Purchaser in connection with its due diligence and closing related costs (15including reasonable attorneys’ fees and expenses), which sum shall be paid by Seller to Purchaser within ten (10) days of presentment by Purchaser of invoices, receipts and such other documentation reasonably acceptable to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Seller substantiating Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations claim for reimbursement hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit.

Failure of Condition. If Purchaser is unable to timely satisfy (and Seller has not waived in writing) the conditions precedent to Seller’s obligation to effect the Closing set forth in Section 12(a) (Conditions to Obligations of Seller9(c)(i) or (ii) above, then such failure shall constitute a default hereunder, in which case, Section 19(a) shall govern. If Seller is unable to timely satisfy the conditions set forth in Section 12(bprecedent to Purchaser’s obligation to effect the Closing, then, (i) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party Purchaser may, provided that such party is not then in material default under this Agreementits sole discretion and without any abatement in the Purchase Price, extend adjourn the Closing Date for a period or periods not to exceed fifteen sixty (1560) days in the aggregate (but, in any event, to allow a date no later than the Outside Closing Date (as hereinafter defined)) and (ii) if, after any such extension, the conditions set forth precedent to Purchaser’s obligation to effect the Closing continue not to be satisfied (and Purchaser has not waived the same in Sections 12(awriting) (Conditions to Obligations or Seller does not elect such extension and, in either case, such failure of condition precedent is not the result of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a ’s default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, then Purchaser shall be entitled to terminate this Agreement by notice thereof to Seller; provided, however, that if such failure of condition precedent is the result of Seller’s default hereunder, then Section 19(b) shall govern. Notwithstanding anything to the contrary contained in no event this Section 9(e), if Seller fails to deliver the Airspace Lease Assignment Consent by the Closing Date, Seller or Purchaser shall Purchaser have the right to extend adjourn the Closing Date until five (5) days following the date in which Seller shall have delivered the Airspace Lease Assignment Consent; provided, however, that if Purchaser fails Seller shall have failed to satisfy deliver the condition in Section 12(a)(ii) that Purchaser pay Airspace Lease Assignment Consent by [ , 2025] (the Purchase Price on the scheduled “Outside Closing Date”), then either Seller or Purchaser shall, until the Airspace Lease Assignment Consent is obtained, have the right to terminate this Agreement at any time thereafter in its sole discretion. If this Agreement is so terminated, due to a failure of the conditions precedent set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b9(d), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (then Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), shall be entitled to receive a return of the Deposit, together with all interest accrued thereon, and neither party shall have any further obligations hereunder, except as provided in Section 19(b) (if applicable) and except those expressly stated to survive the termination hereof.

Failure of Condition. If the conditions precedent to Sellers' obligations to effect the Closing are not satisfied as of the Scheduled Closing Date (and Sellers have not waived such unsatisfied conditions in writing), then Sellers may terminate this Agreement. If the conditions precedent to Purchaser's obligation to effect the Closing (except with respect to the condition precedent set forth in Section 12(a10(d)(iv) (Conditions to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaserabove) are not satisfied or waived on or before as of the Scheduled Closing Date by the party entitled to waive (and Purchaser has not waived such conditionunsatisfied conditions in writing), either party maythen Purchaser may terminate this Agreement, provided that such party is not then Sellers may, if they so elect and without any abatement in material default under this Agreementthe Purchase Price, extend adjourn the Scheduled Closing Date for a period or periods not to exceed fifteen ninety (1590) days in the aggregate in order to allow such conditions set forth in Sections 12(aattempt to effect the Closing. If this Agreement is so terminated pursuant to this Section 10(e), then Purchaser shall (except to the extent Sellers are entitled to retain the Deposit under Section 20(a) or have made a claim against a portion thereof under Section 20(b)) be entitled to receive the Deposit (Conditions to Obligations of Sellerand all accrued interest thereon) and 12(b) (Conditions to Obligations this Agreement shall be deemed canceled and of Purchaser) to be satisfiedno further force or effect, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date and no Party hereto shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express have any further rights or obligations hereunder, providedexcept those arising under provisions of this Agreement that expressly survive the termination hereof (without limiting Purchaser's remedies for any Seller's default to the extent expressly set forth herein, howeverincluding, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Datewithout limitation, any limitations set forth herein). If the conditions precedent to Purchaser's obligation to effect the Closing set forth in Section 12(a10(d)(iv) (Conditions to Obligations of Seller) above are not satisfied by as of the expiration Scheduled Closing Date, Purchaser may (i) accept the Individual Property subject to the Fort Lauderdale Ground Lease (the "Ground Lease Property") without abatement of such 15-day period the Purchase Price, in which event (x) Purchaser shall close hereunder notwithstanding the failure of Sellers to deliver the Ground Lessor Estoppel Certificate, and (y) Sellers shall have no obligations whatsoever after the Closing Date to deliver the Ground Lessor DOC ID - 21031260.28 Estoppel, or if neither party elects such an extension, either party may (ii) terminate this Agreement by written notice with respect to the otherGround Lease Property only, and by notice given to such Seller shall, subject to Section 24(a) and Section 24(b), in which event the Purchase Price shall be entitled reduced by an amount equal to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If portion of the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice Purchase Price allocated to the other, Ground Lease Property as shown on Schedule B-1 (and Purchaser shall, subject Sellers shall cause an Elimination to Section 24(aoccur with respect to the Ground Lease Property), be entitled to receive a return of the Deposit.

Failure of Condition. If (a) In the conditions set forth event of a failure of any condition contained in Section 12(a) (Conditions to Obligations 7.1 or 7.2 above which is not the result of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date a default by either party, the party entitled for whose benefit the condition existed may either waive the condition and proceed to waive such conditionClosing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, either all documents deposited by Seller shall be immediately returned to Seller, and neither party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall have any further rights or obligations hereunder (15) days to allow such conditions except as set forth in Sections 12(a) (Conditions to Obligations of Seller3.5(a) and 12(b(e), 3.6(b), 9.1, 11.2 and 11.12); (b) (Conditions In the event of a failure of any condition contained in Section 7.2 above due to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the party failing Deposit and all documents and funds deposited by Purchaser shall be immediately returned to satisfy Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and upon such condition unless termination Seller shall reimburse Purchaser an amount not to exceed $30,000 for costs and expenses actually incurred by Purchaser in connection with its due diligence and closing related costs (including reasonable attorneys’ fees and expenses), which sum shall be paid by Seller to Purchaser within ten (10) days of presentment by Purchaser of invoices, receipts and such inability results from the breach of such partyother documentation reasonably acceptable to Seller substantiating Purchaser’s express obligations claim for reimbursement hereunder, providedand neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), however3.6(b), that 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller’s obligation to convey the Property to Purchaser in no accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition contained in Section 7.1 above due to a default by Purchaser after the expiration of the Inspection Period, Seller may in its sole discretion: (i) terminate this Agreement and retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) waive such default and close the transaction. (d) Seller waives any rights it may have to specific performance in the event of a default by Purchaser with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that Purchaser pay its exclusive remedies in the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions event of a default by Seller shall be to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(b)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.

Failure of Condition. If (a) Subject to Section 3.6(c), if the conditions precedent to Seller’s and the Purchasers’ obligation to effect the closing as set forth in Section 12(a) (Conditions to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser3.5(c) are not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party may, provided date that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen five (155) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing Business Days prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunderLong Stop Date, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, then either party Party may terminate this Agreement by written notice thereof to the otherother Party and to Escrow Agent, in which event such terminating Party shall cause, as the case may be, the Polish Purchasers or Polish Sellers to also terminate the Polish Purchase Agreement. If this Agreement is so terminated, then the Purchasers shall be entitled to receive a refund of the Escrowed Deposit and no Party shall have any further obligations hereunder, other than obligations that expressly survive termination hereof. (b) Subject to Section 3.6(c), if by the date that is five (5) Business Days prior to the Long Stop Date (i) any condition precedent to Seller’s obligation to effect the Closing as set forth in Section 3.5(b) is not satisfied, (ii) all conditions precedent to the Purchaser’s obligation to effect the Closing as set forth in Section 3.5(a) are satisfied, and (iii) the conditions precedent set forth in Section 3.5(c) are satisfied, then Seller shallshall be entitled to terminate this Agreement by notice thereof to the Purchasers and the Escrow Agent, in which event Seller shall cause the Polish Sellers to also terminate the Polish Purchase Agreement. Subject to Section 3.6(c), if by the date that is five (5) Business Days prior to the Long Stop Date (i) any condition precedent to the Purchasers’ obligation to effect the Closing as set forth in Section 3.5(a) is not satisfied, (ii) all conditions precedent to the Seller’s obligation to effect the Closing as set forth in Section 3.5(b) are satisfied, and (iii) the conditions precedent set forth in Section 3.5(c) are satisfied, then the Purchasers shall be entitled to terminate this Agreement by notice thereof to Seller and the Escrow Agent, in which event the Purchasers shall cause their Affiliates to cause the Polish Purchasers to also terminate the Polish Purchase Agreement. If this Agreement is terminated by either the Seller or the Purchasers pursuant to the foregoing provisions of this Section 3.6(b), then, subject to Section 24(a) and Section 24(b3.6(c), the Party that so terminated this Agreement shall be entitled to receive the Escrowed Deposit and/or and no Party shall have any further obligations hereunder, other than obligations that expressly survive termination hereof. Subject to pursue its remedies Section 3.6(c), if by the date that is five (5) Business Days prior to the Long Stop Date, (i) any condition precedent to the Purchasers’ obligation to effect the Closing as set forth in Section 24(a3.5(a) is not satisfied, (Purchaser Defaultsii) hereof. If any condition precedent to the conditions Seller’s obligation to effect the Closing as set forth in Section 12(b3.5(b) is not satisfied, and (Conditions to Obligations of Purchaseriii) the conditions precedent set forth in Section 3.5(c) are not satisfied by the expiration of such 15-day period or if satisfied, then either party does not elect such extension, either party Party may terminate this Agreement by written notice thereof to the otherother Party and to Escrow Agent, and Purchaser shallin which event such terminating Party shall cause, subject as the case may be, the Polish Purchasers or Polish Sellers to Section 24(a)also terminate the Polish Purchase Agreement. If this Agreement is so terminated, then the Purchasers shall be entitled to receive a return refund of the DepositEscrowed Deposit and no Party shall have any further obligations hereunder, other than obligations that expressly survive termination hereof. (c) Notwithstanding the foregoing, if the applicable conditions precedent are not satisfied due to a default by Seller or the Purchasers hereunder, then Section 3.7 shall govern and this Section 3.6 shall not apply.

Failure of Condition. If prior to Closing Seller discloses to Purchaser or Purchaser discovers that (i) title to the conditions Property is subject to defects, limitations or encumbrances other than Permitted Encumbrances, or (ii) any representation or warranty of Seller contained in this Agreement is or, as of the Date of Closing, will be untrue then Purchaser shall promptly give Seller written notice of its objection thereto. In such event, Seller may elect to postpone the Closing for thirty (30) days and attempt to cure such objection, provided that Purchaser may not object to the state of title of the Property on the basis of any Permitted Encumbrances. The parties acknowledge and agree that Seller shall have no obligation to cure any objection unless it is required to do so pursuant to Section 3.2 hereof. If Purchaser fails to waive the objection within ten (10) days after notice from Seller that Seller will not cure the objection, this Agreement will terminate automatically (subsequent to the First Closing, only insofar as it affects the Airport I Property) and Seller shall promptly direct the Title Company to return the Deposit (subsequent to the First Closing, the Airport I Deposit only) to Purchaser, provided that Purchaser shall not be in default hereunder, and, except as provided below, neither party shall have any liability to the other except for Purchaser's Indemnity Obligations set forth in Section 12(a) (Conditions 3.1.2 hereof and confidentiality obligations under this Agreement. For the purposes of this Agreement, any title defect, limitation or encumbrance other than a Permitted Encumbrance shall be deemed cured if Chicago Title Insurance Company or another title company reasonably acceptable to Obligations of Seller) Purchaser and authorized to do business in Maryland will agree to issue an ALTA owner's title insurance policy to Purchaser for the applicable Purchase Price, which policy takes no exception for such defect, limitation or encumbrance and is issued for no additional premium or for an additional premium if Seller agrees to pay such additional premium upon Closing. Notwithstanding the conditions foregoing, in the event prior to Closing Seller discloses to Purchaser or Purchaser discovers that a representation and warranty set forth in Section 12(b) (Conditions to Obligations 5.1 was materially untrue when made, and Purchaser can demonstrate that if it were aware of Purchaser) are such material untruth it would not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under have entered into this Agreement, extend or that a reasonable person, as a result of the Closing Date for a period subject matter of the representation and warranty and the adverse effect on the use or value of the Property arising from the inaccuracy of the representation or warranty, would have determined, not to exceed fifteen proceed to consummate this transaction, Purchaser, in addition to terminating this Agreement as above provided, may recover from Seller its third party expenses incurred in its due diligence studies and investigations hereunder up to a maximum amount of Seventy-five Thousand Dollars (15) days to allow $75,000); provided that after the First Closing such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior material untruth must relate to the initial Closing Date shall not be considered a default by Airport I LLC or the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the otherAirport I Property, and Seller shall, subject such amount shall be reduced to Section 24(a) and Section 24(bNineteen Thousand One Hundred Fifty Dollars ($19,150), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit.

Failure of Condition. If (a) In the conditions set forth event of a failure of any condition contained in Section 12(a) (Conditions to Obligations 7.1 or 7.2 above which is not the result of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date a default by either party, the party entitled for whose benefit the condition existed may either waive the condition and proceed to waive such condition, either Closing or may terminate this Agreement in which event (A) all documents and funds deposited by Purchaser shall be immediately returned to Purchaser; and (B) all documents deposited by Seller shall be immediately returned to Seller and neither party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall have any further rights or obligations hereunder (15) days to allow such conditions except as set forth in Sections 12(a3.6(b), 9.1, 11.2 and 11.12); (b) (Conditions In the event of a failure of any condition contained in Section 7.2 above due to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event (A) all documents and funds deposited by Purchaser shall be immediately returned to Purchaser; and (B) all documents deposited by Seller shall be immediately returned to Seller and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.6(b), 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller's obligation to convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition contained in Section 7.1 above due to a default by Purchaser, Seller may in its sole discretion: (i) terminate this Agreement and Seller shall retain as liquidated damages the funds described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller and neither party failing shall have any further rights or obligations hereunder (except as set forth in Sections 5.3(b), 9.1, 11.2 and 11.12); or (ii) Seller may waive such default and close the transaction. (d) Seller waives any rights it may have to satisfy such condition unless such inability results from specific performance in the breach event of such party’s express obligations hereunder, provided, however, that in no event shall a default by Purchaser have with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that Purchaser pay its exclusive remedies in the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions event of a default by Seller shall be to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice in accordance with Section 7.3(a)(i) above, to seek specific performance in accordance with Section 7.3(a)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(a)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.

Failure of Condition. If If, for any reason, this Agreement fails to become effective as provided in Paragraphs 3, 9 and/or 12, each and every obligation under the conditions set forth in Section 12(a) (Conditions Agreement shall cease to Obligations be of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such conditionany force and effect, either party may, provided that such party is not then in material default under and this Agreement, extend any dismissal entered pursuant to this Agreement, the Closing Date Final Judgment and any orders entered in connection with the Settlement, dismissal order or Final Judgment, shall be vacated, rescinded, canceled, annulled and deemed “void” and/or “no longer equitable” and/or set aside for a period not reason that otherwise “justifies relief” for purposes of Fed.R.Civ.P. 60 and/or Mo. Rule 74.06 and the Parties shall be returned to exceed fifteen (15) days the status quo prior to allow such conditions set forth in Sections 12(a) (Conditions entering into this Agreement with respect to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfiedthe Litigation as if this Agreement had never been entered into, it being agreed except that the inability provisions of either party to satisfy a Paragraph 1 hereof shall survive and remain binding on the Parties and effective in all respects regardless of the reasons for such failure of condition to Closing prior to and any Party may reassert their claims against the initial Closing Date shall not be considered a default by other Party or Parties in the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, Litigation; provided, however, that in no event shall Purchaser have if at such time the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period Litigation is terminated or otherwise concluded, or if neither party elects the Named Plaintiffs and/or the Countrywide Settlement Class Members are precluded from reasserting their claims against Countrywide in the Litigation after requesting the Court to allow them to do so, then the Named Plaintiffs and the Countrywide Settlement Class Members may commence a new lawsuit or proceeding against Countrywide, or any one or more of them, to pursue the claims and causes of action that they are currently asserting in the Litigation as if the claims had been reasserted in the Litigation as stated herein; provided further, however, that any such an extensionre-commenced lawsuit shall be filed in the United States District Court for the Western District of Missouri, either party may terminate Western Division. In such event, claims time-barred as of the date of this Agreement by written notice remain so and the Settling Defendant retain all defenses, privileges and immunities they had prior to the otherexecution of the Agreement. Further, the Agreement and all negotiations, court orders and proceedings relating thereto shall be without prejudice to the rights of any and all parties hereto, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled evidence relating to the Deposit and/or to pursue its remedies set forth Agreement and all negotiations shall not be admissible or discoverable in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period Litigation or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositotherwise.

Failure of Condition. If (a) In the conditions set forth event of a failure of any condition contained in Section 12(a) (Conditions to Obligations 7.1 or 7.2 above which is not the result of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date a default by either party, the party entitled for whose benefit the condition existed may either waive the condition and proceed to waive such conditionClosing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, either all documents deposited by Seller shall be immediately returned to Seller, and neither party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall have any further rights or obligations hereunder (15) days to allow such conditions except as set forth in Sections 12(a) (Conditions to Obligations of Seller3.5(a) and 12(b(e), 3.6(b), 9.1, 11.2 and 11.12); (b) (Conditions In the event of a failure of any condition contained in Section 7.2 above due to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the party failing Deposit and all documents and funds deposited by Purchaser shall be immediately returned to satisfy Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and upon such condition unless termination Seller shall reimburse Purchaser an amount not to exceed $25,000 for costs and expenses actually incurred by Purchaser in connection with its due diligence and closing related costs (including reasonable attorney’s fees and expenses), which sum shall be paid to Purchaser within ten (10) days of presentment by Purchaser of invoices, receipts and such inability results from the breach of such partyother documentation reasonably acceptable to Seller substantiating Purchaser’s express obligations claim for reimbursement hereunder, providedneither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), however3.6(b), that 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller’s obligation to convey the Property to Purchaser in no accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition contained in Section 7.1 above due to a default by Purchaser after the expiration of the Inspection Period, Seller may in its sole discretion: (i) terminate this Agreement and retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) waive such default and close the transaction. (d) Seller waives any rights it may have to specific performance in the event of a default by Purchaser with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that Purchaser pay its exclusive remedies in the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions event of a default by Seller shall be to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(b)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.

Failure of Condition. If the conditions set forth in Section 12(a(a) (Conditions Subject to Obligations of SellerSections 6.3(b) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived below, if, on or before the Closing Date by the party Date, (w) any condition to Seller’s obligation to close hereunder shall not be satisfied, then Seller shall be entitled to waive such condition, either party may, provided that such party is not then in material default under terminate this Agreement, extend the Closing Date for a period (x) any condition to Purchaser’s obligation to close hereunder shall not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party then Purchaser shall be entitled to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit, (y) any condition to Seller’s obligation to close under the Merger Agreement shall not be satisfied or Seller otherwise has any right to terminate the Merger Agreement, then Seller shall be entitled to terminate this Agreement or (z) either (A) the Merger Agreement shall have terminated without the Merger thereunder having occurred or being capable of occurring immediately after the Closing, or (B) any judgment, injunction, order, decree or action by any governmental entity of competent authority preventing or prohibiting the Closing shall have become final and non-appealable, then in either case Seller and Purchaser shall be entitled to terminate this Agreement, in each such case, by delivering notice thereof to the other party. (b) If this Agreement shall terminate pursuant to Section 6.3(a), then neither party shall have any further obligation or liability to the other, except for any such obligation or liability which expressly survives the termination of this Agreement; provided, that if any such termination is due to a party’s default in performing its material obligations hereunder, then the remedies under Section 8.1 shall control. (c) If and to the extent Seller, without the consent of Purchaser, either (i) accelerates the closing date under the Merger Agreement to a date earlier than January 2, 2007 or (ii) extends the closing date under the Merger Agreement to a date later than January 30, 2007, or (iii) amends the Merger Agreement the effect of such amendment being a material adverse effect on the Assets, then in any such event within three (3) Business Days of written notice of such acceleration, extension or amendment from Seller, Purchaser may terminate this Agreement and receive a return of the Deposit and any interest earned thereon. TIME BEING OF THE ESSENCE with respect to Purchaser’s obligation to terminate the Agreement in the time frame provided. (d) If there has been a “RRR Material Adverse Effect” (as defined in the Merger Agreement) with respect to the Assets entitling Seller to terminate the Merger Agreement, then Purchaser may send written notice of its intention to terminate this Agreement to Seller within five (5) Business Days of such event. If Seller agrees with such determination then this Agreement shall terminate and Purchaser shall receive a return of the Deposit plus all interest earned thereon. If Seller disagrees with such determination it shall send written notice of such objection to Purchaser within fifteen (15) Business Days of receipt of Purchaser’s termination notice, the Deposit shall be placed in escrow and the issue shall be determined by an Expedited Arbitration Proceeding. The prevailing party in the Expedited Arbitration Proceeding shall be entitled to retain the Deposit and all interest earned thereon.

Failure of Condition. If (i) If, as of the Scheduled Closing Date, Purchaser is unable to timely satisfy (and Seller has not waived in writing) the conditions set forth in Section 12(a) (Conditions precedent to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions ’s obligation to Obligations of Purchaser) are not satisfied or waived on or before consummate the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend and such failure of condition precedent is not the Closing Date for a period not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations result of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a ’s default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event then Seller shall Purchaser have the right be entitled to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice thereof to the otherother party. (ii) If, as of the Scheduled Closing Date, Seller is unable to timely satisfy (and Purchaser has not waived in writing) the conditions precedent to Purchaser’s obligation to consummate the Closing under this Agreement, and Seller shallsuch failure of condition precedent is not the result of Seller’s default hereunder, subject to Section 24(a) and Section 24(b), then Purchaser shall be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice thereof to the otherother party. (iii) In the case of clause (i) or (ii) of this Section 10.1(c), if this Agreement is so terminated, then the Down Payment shall be returned to Purchaser (together with all interest thereon, if any), and thereafter neither Seller nor Purchaser shallshall have any further rights or obligations to the other hereunder except with respect to the Termination Surviving Obligations. (iv) If, subject to Section 24(a), be entitled to receive a return as of the DepositScheduled Closing Date, Purchaser is unable to timely satisfy (and Seller has not waived in writing) the conditions precedent to Seller’s obligation to consummate the Closing under this Agreement, and such failure of condition precedent is the result of Purchaser’s default hereunder, then Section 13.2 shall govern. If, as of the Scheduled Closing Date, Seller is unable to timely satisfy (and Purchaser has not waived in writing) the conditions precedent to Purchaser’s obligation to consummate the Closing under this Agreement, and such failure of condition precedent is the result of Seller’s default hereunder, then Section 13.1 shall govern.

Failure of Condition. If If, for any reason, this Agreement fails to become effective as provided in Paragraphs 3, 9 and/or 12, each and every obligation under the conditions set forth in Section 12(a) (Conditions Agreement shall cease to Obligations be of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such conditionany force and effect, either party may, provided that such party is not then in material default under and this Agreement, extend any dismissal entered pursuant to this Agreement, the Closing Date Final Judgment and any orders entered in connection with the Settlement, dismissal order or Final Judgment, shall be vacated, rescinded, canceled, annulled and deemed “void” and/or “no longer equitable” and/or set aside for a period not reason that otherwise “justifies relief” for purposes of Fed.R.Civ.P. 60 and/or Mo. Rule 74.06 and the Parties shall be returned to exceed fifteen (15) days the status quo prior to allow such conditions set forth in Sections 12(a) (Conditions entering into this Agreement with respect to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfiedthe Litigation as if this Agreement had never been entered into, it being agreed except that the inability provisions of either party to satisfy a Paragraph 1 hereof shall survive and remain binding on the Parties and effective in all respects regardless of the reasons for such failure of condition to Closing prior to and any Party may reassert their claims against the initial Closing Date shall not be considered a default by other Party or Parties in the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, Litigation; provided, however, that in no event shall Purchaser have if at such time the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period Litigation is terminated or otherwise concluded, or if neither party elects the Named Plaintiffs and/or the Wendover Settlement Class Members are precluded from reasserting their claims against Wendover in the Litigation after requesting the Court to allow them to do so, then the Named Plaintiffs and the Wendover Settlement Class Members may commence a new lawsuit or proceeding against Wendover, or any one or more of them, to pursue the claims and causes of action that they are currently asserting in the Litigation as if the claims had been reasserted in the Litigation as stated herein; provided further, however, that any such an extensionre-commenced lawsuit shall be filed in the United States District Court for the Western District of Missouri, either party may terminate Western Division. In such event, claims time-barred as of the date of this Agreement by written notice remain so and the Settling Defendant retain all defenses, privileges and immunities they had prior to the otherexecution of the Agreement. Further, the Agreement and all negotiations, court orders and proceedings relating thereto shall be without prejudice to the rights of any and all parties hereto, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled evidence relating to the Deposit and/or to pursue its remedies set forth Agreement and all negotiations shall not be admissible or discoverable in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period Litigation or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositotherwise.

Failure of Condition. If (a) In the conditions set forth event of a failure of any condition contained in Section 12(a) (Conditions to Obligations 7.1 or 7.2 above which is not the result of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date a default by either party, the party entitled for whose benefit the condition existed may either waive the condition and proceed to waive such conditionClosing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, either all documents deposited by Seller shall be immediately returned to Seller, and neither party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall have any further rights or obligations hereunder (15) days to allow such conditions except as set forth in Sections 12(a) (Conditions to Obligations of Seller3.5(a) and 12(b(e), 3.6(b), 9.1, 11.2 and 11.12); (b) (Conditions In the event of a failure of any condition contained in Section 7.2 above due to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party failing shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller’s obligation to satisfy convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition unless contained in Section 7.1 above due to a default by Purchaser after the expiration of the Inspection Period, Seller may in its sole discretion: (i) terminate this Agreement and retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) waive such inability results from default and close the breach transaction. (d) Seller waives any rights it may have to specific performance in the event of such party’s express obligations hereunder, provided, however, that in no event shall a default by Purchaser have with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that Purchaser pay its exclusive remedies in the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions event of a default by Seller shall be to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(b)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.

Failure of Condition. If (a) In the conditions event of a failure of any condition contained in Section 7.1 or 7.2 above which is not the result of a default by either party, the party for whose benefit the condition existed may either waive the condition and proceed to Closing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (b) In the event of a failure of any condition contained in Section 7.2 above due to a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12), provided that in the case of a willful and intentional default of Seller in its obligation to proceed to Closing, or a willful and intentional failure to satisfy any condition set forth in Section 12(a) (Conditions 7.2 and Purchaser elects not to Obligations of Seller) or the conditions set forth in Section 12(b) (Conditions proceed to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party Closing, Purchaser shall be entitled to waive such conditionrecovery from Seller of the actual out-of-pocket damages incurred by Purchaser in connection with the transactions contemplated by this Agreement (but not consequential, either party maypunitive or other damages), provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen (15) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall the aggregate liability of Seller to Purchaser with respect to such damages exceed Thirty Thousand Dollars ($30,000.00); (ii) pursue specific performance of Seller’s obligation to convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition contained in Section 7.1 above due to a default by Purchaser after the expiration of the Inspection Period, Seller may in its sole discretion: (i) terminate this Agreement and Seller shall retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) Seller may waive such default and close the transaction. (d) Seller waives any rights it may have to specific performance in the event of a default by Purchaser with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date12 hereof. If the conditions set forth Except as expressly provided in Section 12(a7.3(b)(i) (Conditions above, Purchaser waives any right to Obligations any claim of Seller) are not satisfied any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that its exclusive remedies in the expiration event of such 15-day period or if neither party elects such an extension, a default by Seller shall be to either party may terminate this Agreement by written notice in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(b)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.

Failure of Condition. If If, for any reason, this Agreement fails to become effective as provided in Paragraphs 3, 9, 10 and/or 12, each and every obligation under the conditions set forth in Section 12(a) (Conditions Agreement shall cease to Obligations be of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such conditionany force and effect, either party may, provided that such party is not then in material default under and this Agreement, extend any dismissal entered pursuant to this Agreement, the Closing Date Final Approval Order and Judgment and any orders entered in connection with the Settlement, dismissal order or Final Approval Order and Judgment, shall be vacated, rescinded, canceled, annulled and deemed “void” and/or “no longer equitable” and/or set aside for a period not reason that otherwise “justifies relief” for purposes of Fed.R.Civ.P. 60 and/or Mo. Rule 74.06 and the Parties and the DBNTC Trusts shall be returned to exceed fifteen (15) days the status quo prior to allow such conditions set forth in Sections 12(a) (Conditions entering into this Agreement with respect to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfiedthe Litigation as if this Agreement had never been entered into, it being agreed except that the inability provisions of either party to satisfy a Paragraph 1 hereof shall survive and remain binding on the Parties and effective in all respects regardless of the reasons for such failure of condition to Closing prior to and any Party may reassert their claims against the initial Closing Date shall not be considered a default by other Party or Parties or the party failing to satisfy such condition unless such inability results from DBNTC Trusts in the breach of such party’s express obligations hereunder, Litigation; provided, however, that in no event shall Purchaser have if at such time the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period Litigation is terminated or otherwise concluded, or if neither party elects the Named Plaintiffs and/or the DBNTC Trusts Settlement Class Members are precluded from reasserting their claims against the Settling Defendants or the DBNTC Trusts in the Litigation after requesting the Court to allow them to do so, then the Named Plaintiffs and the DBNTC Trusts Settlement Class Members may commence a new lawsuit or proceeding against the Settling Defendants and the DBNTC Trusts, or any one or more of them, to pursue the claims and causes of action that they are currently asserting in the Litigation as if the claims had been reasserted in the Litigation as stated herein; provided further, however, that any such an extensionre- commenced lawsuit shall be filed in the United States District Court for the Western District of Missouri, either party may terminate Western Division. In such event, claims time-barred as of the date of this Agreement by written notice remain so and the Settling Defendants and the DBNTC Trusts retain all defenses, privileges and immunities they had prior to the otherexecution of the Agreement. Further, the Agreement and all negotiations, court orders and proceedings relating thereto shall be without prejudice to the rights of any and all parties hereto, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled evidence relating to the Deposit and/or to pursue its remedies set forth Agreement and all negotiations shall not be admissible or discoverable in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period Litigation or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositotherwise.

Failure of Condition. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) ), including without limitation the condition set forth in Section 12(a)(ii), or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen thirty (1530) days to allow such conditions set forth in Sections 12(a) (Conditions to Obligations of Seller) and 12(b) (Conditions to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 1530-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 1530-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit. Notwithstanding the foregoing, if the unsatisfied closing condition is the failure to establish the Condominium because of governmental delay or because the parties are continuing in good faith to negotiate the Condominium Instruments, Seller and Purchaser shall each have the option to elect to extend the Closing Date, from time to time until such date that is five (5) business days following the receipt by both parties of notice that all governmental approvals for the creation of the Condominium have been received, provided, however, in no event shall the Closing Date be extended beyond April 30, 2011 (the “Outside Closing Date”), in which event either party may terminate this Agreement and preserve its right to receive the Deposit and/or pursue its other remedies as set forth in the preceding two sentences.

Failure of Condition. If all of the conditions to Closing set forth above in Section 5.2.1 have not been satisfied by the Closing Date, provided the same is not the result of District’s failure to perform any obligation of District hereunder, District shall have the option, in its sole discretion, by written notice to Developer, to: (i) waive such condition(s) and proceed to Closing hereunder; (ii) other than with respect to the conditions set forth in Section 12(a5.2.1 that have not been met due to Force Majeure, terminate this Agreement by delivering written notice of such termination to Developer on or prior to the Closing Date, in which event the Project Deposit shall be retained by District and whereupon the Parties shall be released from any further liability or obligation hereunder except those that expressly survive termination of this Agreement; or (iii) delay Closing for up to thirty (Conditions 30) days (or such longer period as may be agreed to Obligations of Seller) or by the Parties), to permit Developer to satisfy the conditions to Closing set forth in Section 12(b) 5.2.1. In the event District proceeds under clause (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the iii), Closing Date by the party entitled to waive such condition, either party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall occur within thirty (1530) days to allow such after the conditions precedent set forth in Sections 12(aSection 5.2.1 have been satisfied. In the event such conditions precedent have not been satisfied by the end of the thirty (30) day period, provided the same is not the result of District’s failure to perform any obligation of District hereunder, District may again proceed under clause (Conditions to Obligations of Selleri), (ii) and 12(bor (iii) (Conditions to Obligations of Purchaser) to be satisfiedabove, it being agreed that the inability of either party to satisfy a condition to in its sole discretion. The foregoing notwithstanding, Closing prior to the initial Closing Date shall not be considered a default by occur after the party failing to satisfy such condition unless such inability results from the breach of such party’s express obligations hereunder, provided, however, that in no event shall Purchaser have the right to extend the Closing Date if Purchaser fails to satisfy the condition in Section 12(a)(ii) that Purchaser pay the Purchase Price on the scheduled Outside Closing Date. If the conditions Closing has not occurred by such date, this Agreement shall immediately terminate and be of no further force and effect, except for those provisions that expressly survive termination of this Agreement. Notwithstanding anything set forth above to the contrary, if any such failed condition is a Developer Default hereunder, then District may exercise its remedies in Section 12(a) (Conditions to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice to the other, and Seller shall, subject to Section 24(a) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Deposit8.2.

Failure of Condition. If (a) In the conditions set forth event of a failure of any condition contained in Section 12(a) (Conditions to Obligations 7.1 or 7.2 above which is not the result of Seller) or the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied or waived on or before the Closing Date a default by either party, the party entitled for whose benefit the condition existed may either waive the condition and proceed to waive such conditionClosing or may terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, either all documents deposited by Seller shall be immediately returned to Seller, and neither party may, provided that such party is not then in material default under this Agreement, extend the Closing Date for a period not to exceed fifteen shall have any further rights or obligations hereunder (15) days to allow such conditions except as set forth in Sections 12(a) (Conditions to Obligations of Seller3.5(a) and 12(b(e), 3.6(b), 9.1, 11.2 and 11.12); (b) (Conditions In the event of a failure of any condition contained in Section 7.2 above due to Obligations of Purchaser) to be satisfied, it being agreed that the inability of either party to satisfy a condition to Closing prior to the initial Closing Date shall not be considered a default by Seller, then Purchaser may in its sole discretion: (i) terminate this Agreement in which event the Deposit and all documents and funds deposited by Purchaser shall be immediately returned to Purchaser, all documents deposited by Seller shall be immediately returned to Seller, and neither party failing shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); (ii) pursue specific performance of Seller's obligation to satisfy convey the Property to Purchaser in accordance with the terms of this Agreement; or (iii) waive such default and close the transaction. (c) In the event of a failure of any condition unless contained in Section 7.1 above due to a default by Purchaser, Seller may in its sole discretion: (i) terminate this Agreement and Seller shall retain as liquidated damages the Deposit, as described in Article 12, in which event all documents deposited by Purchaser shall be immediately returned to Purchaser, and all documents deposited by Seller shall be immediately returned to Seller, copies of all third party reports obtained by Purchaser shall be delivered to Seller in accordance with Section 3.5, and neither party shall have any further rights or obligations hereunder (except as set forth in Sections 3.5(a) and (e), 3.6(b), 9.1, 11.2 and 11.12); or (ii) Seller may waive such inability results from default and close the breach transaction. (d) Seller waives any rights it may have to specific performance in the event of such party’s express obligations hereunder, provided, however, that in no event shall a default by Purchaser have with the exclusive remedy of Seller being the right to extend the Closing Date if Purchaser fails to satisfy the condition liquidated damages more fully described in Section 12(a)(ii) 12 hereof. Purchaser waives any right to any claim of any nature for damages or otherwise in the event of a default by Seller and Purchaser acknowledges that Purchaser pay its exclusive remedies in the Purchase Price on the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions event of a default by Seller shall be to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if neither party elects such an extension, either party may terminate this Agreement by written notice in accordance with Section 7.3(b)(i) above, to seek specific performance in accordance with Section 7.3(b)(ii) above, or waive such default and close the other, and Seller shall, subject to transaction in accordance with Section 24(a7.3(b)(iii) and Section 24(b), be entitled to the Deposit and/or to pursue its remedies set forth in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations of Purchaser) are not satisfied by the expiration of such 15-day period or if either party does not elect such extension, either party may terminate this Agreement by written notice to the other, and Purchaser shall, subject to Section 24(a), be entitled to receive a return of the Depositabove.