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 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 Closing Date, will be materially inaccurate or untrue, then Purchaser shall promptly give Seller written notice of its objection thereto. Notwithstanding the foregoing, Purchaser may not object to the state of title of the Property on the basis of matters set forth out in Section 12(a) 3.4 above after the Cure Period. Seller shall have five (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 (155) days after notice from Purchaser to allow provide written notice to Purchaser about whether Seller will attempt to cure any 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, objection; provided, however, the parties acknowledge and agree that in Seller shall have no obligation to cure any objection within (i) or (ii) above. In the event shall Purchaser have the right that Seller elects to extend attempt to cure any such objection, Seller may elect to postpone the Closing Date if for thirty (30) days and attempt to cure such objection. If Purchaser fails to satisfy waive any such objection within five (5) days after notice from Seller that Seller will not cure the condition in Section 12(a)(ii) that Purchaser pay objection, this Agreement will terminate automatically and Seller shall promptly direct the Purchase Price on Title Company to return the scheduled Closing Date. If the conditions set forth in Section 12(a) (Conditions Deposit to Obligations of Seller) are not satisfied by the expiration of such 15-day period or if Purchaser, and neither party elects such an extension, either party may terminate this Agreement by written notice shall have any liability to the otherother 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 the Title Policy, 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 shallagrees to pay such additional premium upon Closing. Notwithstanding the foregoing or any other provision of this Agreement, subject to Section 24(a) and Section 24(b)it shall not be a failure of a condition precedent, be entitled to the Deposit and/or to pursue its remedies set forth a breach of any representation or warranty, or a default by Seller if a tenant is in Section 24(a) (Purchaser Defaults) hereof. If the conditions set forth in Section 12(b) (Conditions to Obligations default of Purchaser) are not satisfied by the expiration of such 15-day period his 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 Deposither Lease.

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 If, prior to Closing, Seller discloses to Purchaser or Purchaser discovers that (i) title to the conditions set forth Property is subject to defects, limitations or encumbrances other than Permitted Encumbrances; (ii) any representation or warranty of Seller contained in Section 12(a) (Conditions to Obligations this Agreement is or, as 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 Date, will be untrue, (iii) there is a landlord default under the party entitled 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 waive postpone the Closing for thirty (30) days and attempt to cure such condition, either party mayobjection, 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 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 is not then in material default under shall have any liability to the other except for the Surviving Obligations. For the purposes of this Agreement, extend the Closing Date 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 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 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 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 acquisition of the Deposit.Property shall be further conditioned on the following:

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 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 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 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 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 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; or (ii) any representation or warranty of Seller contained in this Agreement is or, as of the Closing Date, will be untrue in any material respect, or (iii) there is a failure of any of the conditions set forth in Section 12(a) (Conditions 4 above, then Purchaser shall promptly give Seller written notice of its objection thereto. In such event, Seller may elect 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 postpone the Closing Date by the party entitled for thirty (30) days and attempt to waive cure such condition, either party mayobjection, 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 within (i) or (ii) above unless it is a defect caused by Seller. If Purchaser fails to waive any such party is objection within ten (10) days after notice from Seller that Seller will not then in material default cure the objection, Purchaser shall be entitled to elect to either (i) close under this Agreement, extend with a deduction of the Closing Date for a period not amount reasonably necessary to exceed fifteen (15) days to allow cure 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 defect from the breach amount 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 extensiondue Seller at Closing, either party may placed in escrow or allowed as a credit to Purchaser, or (ii) 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 with a return of the Depositentire Deposit to Purchaser, and neither party shall have any liability to the other except for the Surviving Obligations, and in such event the Lease shall remain in full force and effect except that paragraphs 3, 4 and 5 of the Third Amendment shall be deemed to be deleted and have no further force or effect. For the purposes of this Agreement, any title defect, limitation or encumbrance other than a Permitted Encumbrance shall be deemed cured if the 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, and the Title Company agrees to continue to so insure future purchasers of the property without exception for such defect, limitation or encumbrance for no additional premium.

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 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 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 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 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, 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; or (ii) any representation or warranty of Seller contained in this Agreement is or, as of the Closing Date, 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 within (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 or as otherwise set forth herein. 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. Notwithstanding the foregoing or any other provision of this Agreement, it shall not be a failure of a condition precedent, a breach of any representation or warranty, or a default by Seller if any tenant is in default of its Lease or is not in occupancy of any portion of the Property or if Seller terminates any Lease prior to Closing by reason of the tenant’s default. In any such event, the obligations of Purchaser shall not be affected in any manner and Purchaser shall not be entitled to an abatement of or credit against the Purchase Price nor shall it give rise to any other claim on the part of the Purchaser. In addition, Purchaser’s obligation hereunder to complete settlement shall be conditioned upon Seller delivering each of the items set forth in Section 12(a) (Conditions 9.2 of this Agreement, failing which this Agreement will terminate automatically and Seller shall promptly direct the Title Company to Obligations of Seller) or return the conditions set forth in Section 12(b) (Conditions Deposit 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 Purchaser shall not be considered a in 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 and neither party shall Purchaser have any liability to the right to extend other except for 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 Surviving Obligations or as otherwise 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 Depositherein.

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.