Common use of Failure to Close Clause in Contracts

Failure to Close. 27.1 If for any reason, without material non-cooperation and/or material non-performance of Seller with its obligations under this Agreement, Buyer fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Seller shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions of such electing party.

Failure to Close. 27.1 If Tenant’s failure to close the purchase of the Landlord’s Estate upon exercise of the Option (as described in this Article 35) shall not constitute a breach or a default by Tenant under this Lease and this Lease shall continue unaffected thereby, provided, however, that if Tenant fails to close the Option as described in this Article 35 through no fault of Landlord, and such failure shall continue for any reasonten (10) Business Days after written notice from Landlord, then Tenant shall reimburse Landlord on demand for all reasonable out of pocket costs and expenses of Landlord and Fee Mortgagee (including, without material non-cooperation and/or material non-performance limitation, all reasonable attorneys’ fees and expenses) incurred in connection with the exercise of Seller with its obligations under this Agreement, Buyer fails to consummate such Option and preparation for the closing of such purchase and sale the provisions of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Seller Article 35 shall thereafter be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effecteffect and Tenant shall forfeit the Option Purchase Deposit, as liquidated damages in full settlement of all claims against Tenant with respect to failure to close the Liquidated Damages Payment Option as the Parties agree that the amount of actual damages that Landlord would suffer as a result of Tenant’s default would be extremely difficult to determine and have agreed, after specific negotiation, that the amount of the Option Purchase Deposit is a reasonable estimate of Landlord's damages and is intended to constitute a fixed amount of liquidated damages in lieu of other remedies available to Landlord and is not intended to constitute a penalty. If Landlord fails to close through no fault of Tenant, Tenant’s sole remedies shall be paid (i) to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof ▇▇▇ for specific performance or (ii) obtain specific performance with respect to terminate the purchase transaction and sale recover from Landlord all of the Loans related to such Applicable Closing Date. 27.2 If for Tenant’s and any reasonLeasehold Mortgagee’s actual out-of-pocket costs and expenses, including, without material non-cooperation and/or material non-performance limitation, reasonable attorneys’ fees (but no consequential, speculative or punitive damages) incurred in connection with the exercise of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase such Option and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer preparation for the costs incurred, labor closing and services performed and otherwise regarding the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Datecontemplated purchase. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions of such electing party.

Failure to Close. 27.1 If any Selling Party is not present at the specified place on the Closing Date of the sale or is present but fails for any reasonreason whatsoever to produce and deliver to the Purchasers those deliverables described in section 7.5, without material non-cooperation and/or material non-performance then the Sale Price as and when payable shall be deposited by the Purchasers into a special account at a branch of Seller with its obligations under this Agreementthe Corporation's bank (the "Bank") in the name of the Corporation . Such deposit shall constitute valid and effective payment of the Sale Price for the Purchased Shares to the Selling Party. If the full Sale Price for all the Purchased Shares is so deposited in a special account at the branch of the Bank, Buyer fails then from and after the date of such deposit, even though the certificates evidencing the Purchased Shares have not been delivered to consummate the Purchasers, the purchase of all of such Purchased Shares shall be deemed to have been fully completed and sale all right, title, benefit and interest, both at law and equity, in and to all such Purchased Shares shall be conclusively deemed to have been transferred and assigned to and become vested in the Purchasers and all right, title, benefit and interest both at law and equity of the Loans Selling Party or any transferee, assignee or any other Person, having any interest, legal or equitable therein or thereto , whether the Selling Party or otherwise. shall cease and determine and the Corporation shall issue and deliver to the Purchasers new share certificates representing such Purchased Shares and record the transfer on its books. The Selling Party hereby irrevocably constitutes and appoints the person from time to time holding the office of Secretary of the Corporation as its true and lawful attorney in fact and agent for, in the name of and on behalf of the Selling Party, to execute and deliver in the name of the Selling Party all such assignments, transfers, deeds and instruments as may be necessary to effectively transfer and assign the Purchased Shares or any part thereof to the Purchasers on the Applicable Closing Date according books of the Corporation. Such appointment and power of attorney being coupled with an interest, shall not be revoked by the insolvency, bankruptcy, death or incapacity of the Selling Party and the Selling Party hereby ratifies and confirms and agrees to ratify and confirm all that the terms and conditions set forth in this Agreement, Seller Corporation's Secretary may lawfully do or cause to be done by virtue of the provisions hereof. The Selling Party shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice Sale Price deposited with the said bank, without interest, upon delivery to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller the Corporation of the deliverables described in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss section 7.5. ARTI CLE EIGHT - RIGHT OF FIRST OFFER 8.1 Right of its bargain, all of which are difficult to ascertain, and in First Offer. In the event Seller that a Shareholder (the "Offeror") wishes to sell any of his Shares, then before being able to do so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance Offeror must comply with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either provisions: (a) The Offeror shall first offer to sell his Shares to the non-occurrence other Shareholders owning the same class of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence shares as those of the Stage One ClosingOfferor (the "Offerees"), and such amount shall represent as nearly as may be in proportion to the full liquidated damages due in respect number of Shares respectively held by the Offerees at the date of the non-occurrence of both offer. Such offer shall be made in writing and shall indicate the Stage One Closing price and terms upon which the Stage Two Closing), or Shares are being offered. (b) Each Offeree shall have the occurrence right to accept such ofter to purchase the Offerer's Shares in proportion to the number of Shares respectively held by the Offerees at the date of the Stage One Closing but offer or in such other proportion as the non-occurrence Ofterees who desire to purchase may agreed at any time within seven (7) days after the receipt of such offer. (c) Any sale of Shares to Offerees made pursuant to this section 8.1 shall, in default of written agreement to the contrary between the parties to the relevant transfer, be completed at the offices of the Stage Two Closing. The Liquidated Damages Payment lawyers of the Corporation at 11:00 a.m. local time on the 30th day following the date of the notice pursuant to which the sale is being made at which time the total purchase price shall be payable by wire transfer certified cheque and the title to the Shares of immediately available funds. Any the Offerer shall pass to the Ofteree(s) and the certificates representing such payment Shares shall be made delivered to the Offeree(s) duly endorsed for transfer. (d) If all of the Shares of the Offeror are not purchased within two a period of thirty (230) Business Days days after the election receipt of such ofter, then, subject to Section 8.2, the Offeror may, during the following period of sixty (60) days, offer all or any of the Shares not purchased by the applicable Offerees to any person who is not a Shareholder, but the price at which the Shares may be sold shall not be less than the price offered to the Offerees and the terms shall not be less favourable than those offered to the Offerees. If any of the Offeror's Shares are not sold after the sixty (60) day period noted herein has elapsed, the Offeror will not be entitled to sell such Shares without repeating compliance with this provisions of this section 8.1. (e) Every sale of Shares to a person who is not a Shareholder shall be subject to the condition that such person shall agree to be bound by the terms of this Agreement and become a party in accordance with Section 27.1 or 27.2hereto and shall agree to be bound by the terms, and become a party to the Assignment of Rights Agreement attached hereto as applicableSchedule "A". 8.2 Piggy-Back : If, in accordance after compliance with the instructions provisions of section 8.1, an Offerer becomes entitled to sell all, and not less than all, of his Shares to a person who is not a Shareholder and reaches an agreement for the sale of such electing partyshares then the Offerer shall give written notice of such agreement and a true copy thereof to all of the Offerees and such a sale may only proceed if the Offerees are given an equal right (which must be exercised within ten (10) days from the date of receipt of such notice) to participate in such sale to such person for the same consideration and on the same terms and conditions. Each Ofteree shall have the right, exercisable within ten (10) days from the date of receipt of such notice, and upon notice in writing to the Offeror to require the person who is not a Shareholder to purchase all but not less than all of the Shares held by each Offeree who duly exercises such right for the same consideration and on the same terms and conditions as are contained in the binding agreement between the Offeror and the person who is not a Shareholder. If no Ofteree shall give such a notice within such ten (10) day period then the Offeror shall be free to complete the sale of its Shares to the person who is not a Shareholder.

Failure to Close. 27.1 If for At any reasontime prior to the Closing, without material non-cooperation and/or material non-performance of the following procedure shall apply: (a) Seller with its obligations under this Agreement, Buyer fails may deliver written notice to consummate the purchase Purchaser and sale of the Loans on Escrow Agent that the Applicable Closing Date according Seller is entitled to the Fund (the "Seller's Notice") pursuant to the terms and conditions set forth in this of the Agreement. The Seller's Notice shall specify the basis upon which the Seller claims entitlement to the Fund. If the Purchaser does not deliver to Seller and the Escrow Agent a written objection to the Seller's claim to entitlement to the Fund specifying the basis upon which it objects to the Seller's entitlement to the Fund within five (5) Business Days after delivery of the Seller's Notice, then the Escrow Agent shall deliver the Fund to Seller on the sixth Business Day after delivery of the Seller's Notice as liquidated damages as a consequence of Purchaser's default (which liquidated damages shall not constitute a penalty). If the Purchaser delivers to Seller and the Escrow Agent a written objection to Seller's claim to entitlement to the Fund within five (5) Business Days after delivery of the Seller's Notice, then the matter shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than resolved as provided in Section 27.4 3.3 hereof, and other than those that expressly survive the termination hereof or Escrow Agent shall continue to hold the Escrowed Funds until it receives (i) a nonappealable court order from a court of competent jurisdiction directing disposition of such property, (ii) obtain specific performance a signed arbitration award in accordance with respect Section 3.3(c), or (iii) appropriate written instructions signed by both Seller and Purchaser. (b) The Purchaser may deliver written notice to Seller and the Escrow Agent that the Purchaser is entitled to the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for Escrowed Funds or any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according portion thereof pursuant to the terms and conditions set forth in this Agreementof the Purchase Agreement (the "Purchaser's Notice"). The Purchaser's Notice shall specify the basis upon which the Purchaser claims entitlement to the Escrowed Funds. If Seller does not deliver to the Purchaser and the Escrow Agent a written objection to the Purchaser's claim to entitlement to the Escrowed Funds specifying the basis upon which the Seller objects to the Purchaser's entitlement to the Escrowed Funds within five (5) Business Days after delivery of the Purchaser's Notice, Buyer then the Escrow Agent shall deliver the Escrowed Funds to the Purchaser on the sixth Business Day after delivery of the Purchaser's Notice. If Seller delivers to the Purchaser and the Escrow Agent a written objection to the Purchaser's claim to entitlement to the Escrowed Funds within five (5) Business Days after delivery of the Purchaser's Notice, then the matter shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than resolved as provided in Section 27.4 3.3 hereof, and other than those that expressly survive the termination hereof or Escrow Agent shall continue to hold the Escrowed Funds until it receives (i) a nonappealable court order from a court of competent jurisdiction directing disposition of such property, (ii) obtain specific performance a signed arbitration award in accordance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing3.3(c), or (biii) appropriate written instructions signed by both Seller and Purchaser. (c) In the occurrence event that the Escrow Agent receives both a Seller's Notice and a Purchaser's Notice prior to the first date that the Escrow Agent is obligated hereunder to deliver the Escrowed Funds to the Purchaser or the Fund to Seller pursuant to Section 3.2(a) or 3.2(b) hereof, then the Escrow Agent shall continue to hold the Escrowed Funds until it receives (i) a nonappealable court order from a court of the Stage One Closing but the non-occurrence competent jurisdiction directing disposition of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two property, (2ii) Business Days after the election by the applicable party a signed arbitration award in accordance with Section 27.1 or 27.23.3(c), as applicableor, in accordance with the (iii) appropriate written instructions of such electing partysigned by both Seller and Purchaser.

Failure to Close. 27.1 If for Both Purchaser and Seller shall have the right to terminate this Agreement if any reasonof the conditions described in Paragraph 6 are not satisfied or waived on or before the dates referenced therein by written notice of such termination to the other party, without material non-cooperation and/or material non-performance of Seller with its whereupon neither party shall have any further obligations to the other under this Agreement, Buyer fails . Seller shall have the right to consummate terminate this Agreement only upon the purchase and sale failure of the Loans on the Applicable Closing Date according to the terms and conditions an express contingency set forth in Paragraph 6(b) above. If Seller defaults in any of its obligations hereunder, or if any of Seller’s representations and warranties made in this Agreement prove to be untrue as of the date of Closing, then, in addition to any other legal or equitable remedies available to Purchaser, including specific performance, Purchaser shall have the right to have the Refundable Deposit, the Extension Fee (if any), and the Incentive Fee (if any) returned to Purchaser provided that if such default or failure relates to Parcel B, Seller shall return only the Refundable Deposit to Purchaser together with any Extension Fee related to Parcel B. If Purchaser or Seller do not terminate this Agreement pursuant to an express right to do so as contained herein, and if Seller does not default in any of its obligations hereunder and none of the Seller’s representations and warranties prove to be untrue, but Purchaser fails to close as required by this Agreement, Seller shall be entitled as its then Seller’s sole and exclusive right and remedy shall be to either retain the Deposit (i) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargainExtension Fee and Incentive Fee, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be if applicable) paid to Seller by Purchaser as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 acknowledging and other than those agreeing that expressly survive the termination hereof or (ii) obtain specific performance with respect Seller’s actual damages could be difficult if not impossible to ascertain; provided, however, if Purchaser fails to close the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according Parcel B pursuant to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate of this Agreement by written notice following Purchaser’s acquisition of Parcel A, then Purchaser must also pay Seller the deferred portion of the Purchase Price allocated to SellerParcel A (i.e., which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred$400,000.00), labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to extent Purchaser has not previously paid Seller such Applicable Closing Dateamount. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions of such electing party.

Failure to Close. 27.1 (a) The parties agree that in the event of (i) Seller’s inability to convey Title to the Property as required by this Agreement on the Closing Date or any adjournment thereof agreed upon by the parties (“Title Failure”); or (ii) the failure to occur of any of the conditions precedent to Buyers’ obligation to purchase the Property contained in this Agreement (“Condition Failure”) on or before the Closing Date or any adjournment thereof agreed upon by the parties, the Buyer may terminate this contract by written notice to the Seller. Upon such termination, the Buyer shall be entitled to the return of the Deposit. If for such termination is due to Title Failure, Buyer shall receive from Seller an amount equal to the Title/Survey Costs. If the Title Failure or the Condition Failure is due to a deliberate breach by the Seller of any reason, without material non-cooperation and/or material non-performance of Seller with its obligations under this Agreement, then the Buyer shall also be entitled to recover from the Seller the reasonable out of pocket expenses incurred by the Buyer up to a maximum of $20,000 in connection with the transaction contemplated by this Agreement, including without limitation costs of inspections and investigations and costs of engineers, attorneys and environmental consultants. (b) The parties agree that in the event that Buyer fails to consummate Close and to pay the purchase and sale price, other than as a result of the Loans on failure of a contingency or condition precedent to Buyer’s obligation to Close, the Applicable Closing Date according to the terms and conditions set forth in this AgreementSeller, Seller shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Buyer and on account thereof, may terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment whereupon the Seller shall represent and be entitled to obtain from the Escrow Agent the Deposit as liquidated damages payable on account of such default and, thereafter neither party shall have any further rights or obligations hereunder other than those which, pursuant to Seller in such event as a the express provisions hereof, survive the termination of this Agreement. The parties have consulted with their respective advisors and attorneys and have negotiated with each other and have agreed upon an amount for the Deposit that both believe is fair and reasonable sum to recompense Seller under the circumstances and a suitable proxy for actual damages. The payment of the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid Deposit to Seller as liquidated damagesdamages is not intended to be a forfeiture or penalty, but instead is intended to constitute liquidated damages to Seller and is a reasonable estimate of the parties hereto damages that will be incurred by Seller if Buyer defaults in its obligation to purchase the Property hereunder. Nothing contained in this Section 35 shall have no further rights in any way limit any indemnification (and any related hold harmless and defense) obligation of Buyer or obligations under Seller pursuant to this Agreement other than as Agreement. Buyer covenants not to bring any action or suit challenging the amount of liquidated damages provided hereunder in the event of such default. This Section 27.4 and other than those that 35 shall expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions of such electing party...

Failure to Close. 27.1 If for any reason, without material (A) It is acknowledged and agreed that the ---------------- Buy/Sell Deposit is intended to be a non-cooperation and/or material non-performance of Seller with its refundable deposit to secure the obligations under this Agreement, Buyer fails to consummate the purchase and sale of the Loans on purchasing Institutional Stockholder. Accordingly, if the Applicable Closing Date according Institutional Stockholder which pursuant to the terms and conditions set forth hereof has elected to purchase or has become obligated to purchase the shares of Common Stock of the other Institutional Stockholder fails to close in this Agreement, Seller accordance with Section 9(h) for any reason other than an Excused Condition the Buy/Sell Deposit shall be entitled retained by the selling Institutional Stockholder as liquidated damages for the harm (which harm is acknowledged to not be readily measurable in damages) caused by the failure of the buying Institutional Stockholder to timely conclude its sole and exclusive remedy purchase and, to either the extent that a portion of the Buy/Sell Deposit constituted a pledge of shares of Common Stock, the Deposit Defaulted Shares shall be transferred to the selling Institutional Stockholder. If the buying Institutional Stockholder that so fails to close is JAH, then: (i) receive RMI may, at any time within thirty (30) days after the Liquidated Damages Payment Buy/Sell Closing Date, elect to buy JAH's entire remaining interest in the Company at the Buy/Sell Price specified in the prior Buy/Sell Notice, with the closing thereon to occur in accordance with Section 9(h) sixty (as defined below60) from Buyer and terminate this Agreement by written days after RMI delivers notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all election to buy JAH's shares of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof Common Stock; or (ii) obtain specific performance with respect alternatively, RMI may, at any time within thirty (30) days after the Buy/Sell Closing Date, elect to sell the purchase and Company by the sale or exchange of the Loans related to shares of Common Stock, a merger, consolidation, recapitalization, asset sale or otherwise, for an aggregate value per share not less than ninety-five (95%) percent of the Buy/Sell Price and on such Applicable Closing Dateother terms and conditions as are approved by the Board of Directors of the Company without the vote of the JAH Designees. 27.2 (B) If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according Institutional Stockholder which pursuant to the terms and conditions set forth in this Agreement, Buyer shall be entitled as hereof has elected to sell or has become obligated to sell its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss shares of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect Common Stock to the purchase and sale of the Loans related other Institutional Stockholder fails to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party close in accordance with Section 27.1 or 27.29(h) for any reason other than an Excused Condition, as applicable, the other Institutional Stockholder shall have the remedy set forth in accordance with the instructions of such electing partySection 28.

Failure to Close. 27.1 (1) If for any reason, without material non-cooperation and/or material non-performance of Seller with its obligations under this Agreement, Buyer the Vendor fails to consummate complete the transaction of purchase and sale, then the amount which the Purchaser would otherwise be required to pay to the Vendor at Closing may be deposited by the Purchaser into a trust account in the name of the Vendor at the bank branch used by the Company. Upon making the deposit and giving the Vendor notice that the deposit was made, the purchase and sale of the Loans on Transferred Shares by the Applicable Closing Date according Purchaser shall be deemed to have been fully completed and the Transferred Shares shall be conclusively deemed to have been transferred to and vested in the Purchaser and the Secretary of the Company shall cause the name of the Purchaser (or its nominee as directed) to be entered in the share register of the Company as the holder of the Transferred Shares. The Vendor shall be entitled to receive the amount deposited in the trust account upon satisfying the Vendor's obligations pursuant to SECTION 6.11. (2) If the Purchaser fails to complete the transaction of purchase and sale, the Vendor may, at its option (exercisable by giving written notice thereof to the Vendor on or as soon as reasonably practicable after the intended Closing) and in addition to any other rights it may have at law including seeking an order for specific performance and/or damages, terminate the transaction and the Purchaser's right at that time to purchase the Transferred Shares shall be deemed to be null and void. (3) If any Transfer of Shares is subject to review under the provisions of any statute, the Closing shall be conditional upon the consent or allowance or deemed consent or allowance of the purchase of the Shares by the applicable public authority, which consent or allowance shall be on terms and conditions set forth reasonably satisfactory to the Purchaser. Notwithstanding any other provision in this Agreement, Seller the Closing shall be entitled as its sole and exclusive remedy to either (i) receive delayed until the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions receipt of such electing partyconsent or allowance or deemed consent or allowance.

Failure to Close. 27.1 (1) If for any reason, without material non-cooperation and/or material non-performance of Seller with its obligations under this Agreement, Buyer the Vendor fails to consummate complete the transaction of purchase and sale, then the amount which the Purchaser would otherwise be required to pay to the Vendor at Closing may be deposited by the Purchaser into a trust account in the name of the Vendor at the bank branch used by the Corporation. Upon making the deposit and giving the Vendor notice that the deposit was made, the purchase and sale of the Loans on Transferred Shares by the Applicable Closing Date according Purchaser shall be deemed to have been fully completed and the Transferred Shares shall be conclusively deemed to have been transferred to and vested in the Purchaser and the Secretary of the Corporation shall cause the name of the Purchaser to be entered in the share register of the Corporation as the holder of the Transferred Shares. The Vendor shall be entitled to receive the amount deposited in the trust account upon satisfying the Vendor's obligations pursuant to SECTION 6.01(1). (2) If the Purchaser fails to complete the transaction of purchase and sale, the Vendor may, at its option (exercisable by giving written notice thereof to the Vendor on or as soon as reasonably practicable after the intended Closing) and in addition to any other rights it may have at law including seeking an order for specific performance and/or damages, terminate the transaction and the Purchaser's right at that time to purchase the Transferred Shares shall be deemed to be null and void. (3) If any Transfer of Shares is subject to review under the provisions of any statute, the Closing shall be conditional upon the consent or allowance or deemed consent or allowance of the purchase of the Shares by the applicable public authority, which consent or allowance shall be on terms and conditions set forth reasonably satisfactory to the Purchaser. Notwithstanding any other provision in this Agreement, Seller the Closing shall be entitled as its sole and exclusive remedy to either (i) receive delayed until the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions receipt of such electing partyconsent or allowance or deemed consent or allowance.

Failure to Close. 27.1 (a) If for any reason, without material non-cooperation and/or material non-performance of Seller with its obligations under this Agreement, Buyer Purchaser fails to consummate the purchase transactions contemplated on its part to occur on the Closing Date, in circumstances whereby this Agreement has not been terminated and sale all conditions of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this AgreementArticle 7 have been satisfied in all material respects or waived, Seller Seller's sole remedy shall be entitled as its sole (1) to require Purchaser to consummate and exclusive remedy specifically perform the Purchase in accordance with the terms of this Agreement or (2) to either (i) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement pursuant to Section 9.1(e) and obtain damages to the extent provided by written notice law and to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event obtain reimbursement of Seller's out-of-pocket expenses as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided set forth in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date11.2. 27.2 (b) If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans transactions contemplated on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase and sale of the Loans related to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubt, the ability of one party to receive, and the corresponding obligation of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans part to occur on the Stage One Closing Date, it may do so upon the non-occurrence in circumstances whereby this Agreement has not been terminated and all conditions of the Stage One ClosingClosing set forth in Article 8 have been satisfied in all material respects or waived, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment Purchaser's sole remedy shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (21) Business Days after to require Seller to consummate and specifically perform the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, Purchase in accordance with the instructions terms of such electing partythis Agreement or (2) to terminate this Agreement pursuant to Section 9.1(d) and obtain damages to the extent provided by law and to obtain reimbursement of Purchaser's out-of-pocket expenses as set forth in Section 11.2. (c) If any legal action or other legal proceeding is brought in order to force a party to consummate and specifically perform the Purchase pursuant to this Section 9.3 or otherwise, the prevailing party shall be entitled to recover reasonable attorneys' fees, costs and disbursements in addition to any other relief to which the prevailing party may be entitled.

Failure to Close. 27.1 If this Agreement is terminated with respect to any Property (and the Closing of the Contribution Transaction for such Property fails to occur) for any reason, without material non-cooperation and/or material non-performance of Seller with its obligations under this Agreement, Buyer fails to consummate then the purchase and sale parties promptly shall adjust proportionately the Original Cap Rate Adjustment for each of the Loans other Properties for which a Closing has occurred or remains expected to occur (collectively, such other Properties being hereinafter referred to as the “Remaining Properties” and each, a “Remaining Property”) so that the weighted average NOI cap rate for all Remaining Properties shall always equal five and ninety-eight hundredths percent (5.98%) (with respect to each Remaining Property, as so adjusted, the “Revised Cap Rate Adjustment” and, the date of any such adjustments being hereinafter referred to as a “Cap Rate Adjustment Date”). If the Closing of a Contribution Transaction with respect to any Remaining Property has already occurred as of a Cap Rate Adjustment Date, then (A) the Contribution Value of such Remaining Property shall be recalculated as of the Closing Date of such Contribution Transaction assuming that the Original Cap Rate Adjustment for such Remaining Property (as and to the extent previously adjusted hereunder) equaled the Revised Cap Rate Adjustment for such Remaining Property on such Closing Date, and (B) to the extent that the recalculated Contribution Value exceeds the Contribution Value that was previously paid for such Remaining Property, Transferee shall, on or before five (5) Business Days after written demand, deliver such excess, together with interest thereon, at the rate then being earned by Transferee on its cash deposits, for the period from the applicable Closing Date to the date of payment thereof, to PMB LLC (on behalf of PMB LLC and the applicable “Transferor Parties” (as hereinafter defined)) in the form of OP Units and/or cash (in the same proportion as such Transferor Parties’ “Allocable Share” (as hereinafter defined) and for the benefit of the same parties as the OP Units and/or cash payments that were delivered on the Applicable applicable Closing Date); provided, however, that if such Contribution Transaction was an Investment Entity Transaction, then such excess, together with interest thereon, at the rate then being earned by Transferee on its cash deposits, for the period from the applicable Closing Date according to the terms and conditions set forth in this Agreementdate of payment thereof, Seller shall be entitled as its sole and exclusive remedy to either (i1) receive the Liquidated Damages Payment (as defined below) from Buyer and terminate this Agreement by written notice to Buyer, which Liquidated Damages Payment shall represent and be liquidated damages payable to Seller in such event as a fair and reasonable sum to recompense Seller for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain, and in the event Seller so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Seller as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii) obtain specific performance with respect to the purchase applicable Transferor Parties that received cash and/or OP Units, be paid by Transferee to PMB LLC (on behalf of PMB LLC and sale such Transferor Parties) in the form of OP Units and/or cash (in the same proportion as such Transferor Parties’ Allocable Share and for the benefit of the Loans related to such Applicable same parties as the OP Units and/or cash payments that were delivered on the applicable Closing Date. 27.2 If for any reason, without material non-cooperation and/or material non-performance of Buyer with its obligations under this Agreement, Seller fails to consummate the purchase and sale of the Loans on the Applicable Closing Date according to the terms and conditions set forth in this Agreement, Buyer shall be entitled as its sole and exclusive remedy to either (i) receive the Liquidated Damages Payment (as defined below) from Seller and terminate this Agreement by written notice to Seller, which Liquidated Damages Payment shall represent and be liquidated damages payable to Buyer in such event as a fair and reasonable sum to recompense Buyer for the costs incurred, labor and services performed and the loss of its bargain, all of which are difficult to ascertain), and in the event Buyer so elects to terminate this Agreement, this Agreement shall be null and void and of no further force or effect, the Liquidated Damages Payment shall be paid to Buyer as liquidated damages, and the parties hereto shall have no further rights or obligations under this Agreement other than as provided in Section 27.4 and other than those that expressly survive the termination hereof or (ii2) obtain specific performance with respect to the purchase applicable Investment Entity Transferor, be delivered by re-computing and sale adjusting such Investment Entity Transferor’s percentage interest in the Investment Entity to equal the “Investment Entity Transferor Allocable Share” (as hereinafter defined) that would have been calculated on the Closing Date of such Investment Entity Transaction based upon the recalculated Contribution Value. If the Closing of a Contribution Transaction with respect to any Remaining Property has not occurred as of a Cap Rate Adjustment Date, then upon the Closing of the Loans related Contribution Transaction with respect to such Applicable Closing Date. 27.3 As used in this Section 27, “Liquidated Damages Payment” means an amount equal to TWO MILLION DOLLARS ($2,000,000). For the avoidance of doubtRemaining Property, the ability Contribution Value of one party to receive, and such Remaining Property shall be calculated using the corresponding obligation Revised Cap Rate Adjustment instead of the other party to pay, the Liquidated Damages Payment as provided in the foregoing provisions of this Section 27 will apply, if at all, in one and only one of the following cases: either (a) the non-occurrence of both the Stage One Closing and the Stage Two Closing (it being understood that if there Original Cap Rate Adjustment for such Remaining Property. A sample calculation is no Stage One Closing, there will be no Stage Two Closing, and accordingly if the applicable party elects to receive the Liquidated Damages Payment upon the failure to consummate the purchase and sale of Loans to occur set forth on the Stage One Closing Date, it may do so upon the non-occurrence of the Stage One Closing, and such amount shall represent the full liquidated damages due in respect of the non-occurrence of both the Stage One Closing and the Stage Two Closing), or (b) the occurrence of the Stage One Closing but the non-occurrence of the Stage Two Closing. The Liquidated Damages Payment shall be payable by wire transfer of immediately available funds. Any such payment shall be made within two (2) Business Days after the election by the applicable party in accordance with Section 27.1 or 27.2, as applicable, in accordance with the instructions of such electing partyExhibit “B-3” attached hereto.