Common use of Feasibility Clause in Contracts

Feasibility. (a) During the fifteen (15) business day period following the latest of the dates on which Purchaser and Seller have both executed this Agreement (the "Feasibility Period"), Purchaser, its agents, employees and contractors shall have the right to enter the Property for the purpose of inspecting improvements, making surveys, updating the due diligence materials previously delivered to Purchaser pursuant to 6(b) below, and performing other tests, studies and examinations as Purchaser, in its sole discretion, desires and to confirm the availability of financing, on terms and conditions acceptable to Purchaser. If Purchaser is not satisfied, in its sole discretion, with all aspects of the Property and the results of all tests and studies, and the availability of the specified financing, Purchaser shall have the right, upon written notice to Seller given prior to expiration of the Feasibility Period, to terminate this Agreement, in which event the Deposit shall be returned to Purchaser. (b) Purchaser acknowledges that Seller has delivered to Purchaser the materials listed on Exhibit B, and that all matters disclosed by such deliveries are acceptable to Purchaser and shall not be the basis for any objection hereunder. The matters of title and survey reflected in the materials already delivered to Purchaser are "Permitted Exceptions" deemed acceptable to Purchaser. Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser may specifically identify in writing, excluding any materials of a proprietary nature, not relating to the condition or performance of the Property or the Tenant. All due diligence updates shall be at Purchaser's sole expense. (c) If notice of termination is not given prior to expiration of the Feasibility Period, all such matters shall be deemed acceptable and all such conditions satisfied and/or waived. (d) Purchaser agrees to repair any damage caused directly by exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold the Seller harmless from any and all losses actually incurred as a direct result of the exercise of such right of access, other than as a result of the Seller's negligence or willful misconduct. Seller will cooperate and assist Purchaser's access to the buildings.

Feasibility. a. Buyer shall have ninety (a90) During days from the fifteen (15) business day period following the latest date of the dates on which Purchaser and Seller have both executed full execution of this Agreement (the "“Feasibility Period"), Purchaser, its agents, employees and contractors shall have the right ”) to enter determine whether the Property is suitable for Buyer's intended purpose, on the purpose conditions set forth in paragraph 10 of inspecting improvements, making surveys, updating the due diligence materials previously delivered to Purchaser pursuant to 6(b) below, and performing other tests, studies and examinations as Purchaserthis Agreement. b. If Buyer, in the exercise of its sole discretion, desires and decides that the Property is not suitable for Buyer's intended purpose for any reason or for no reason Buyer may terminate this Agreement by giving Notice to confirm this effect to Seller at any time during the availability of financing, on terms and conditions acceptable to PurchaserFeasibility Period but not thereafter. If Purchaser such Notice is given, Buyer shall be entitled to a return of its Initial Deposit. Once the Feasibility Period expires and if Buyer has not satisfiedexercised its right to terminate, Buyer's right to terminate this Agreement under the terms of this paragraph 3 shall expire absolutely, and the Initial Deposit and Additional Deposit shall be non-refundable to Buyer, unless Buyer terminates this Agreement due to Seller’s failure to deliver title in accordance with the terms of this Agreement. Notwithstanding anything set forth herein to the contrary, at Settlement, the Deposit will be refunded to Buyer provided that the full Purchase Price is paid to Seller in accordance with Paragraph 2b of this Agreement, unless Seller has drawn on the Letter of Credit(s), in its sole discretionwhich case, the amount drawn down by Seller will be applied to the Purchase Price. c. If Buyer does not terminate this Agreement on or prior to ninety (90) days from the date hereof, as provided for in paragraph 3b of this Agreement. Buyer agrees to accept the Property on an AS IS, WHERE IS condition, with all aspects faults. Buyer specifically acknowledges that if Settlement occurs, it has agreed to purchase the Property as a result of its inspection and studies and not due to any warranties, representations or covenants expressed or implied regarding the condition of the Property and the results of all tests and studies, and the availability of the specified financing, Purchaser shall have the right, upon written notice made by Seller or by anyone acting or purporting to Seller given prior to expiration of the Feasibility Period, to terminate this Agreement, in which event the Deposit shall be returned to Purchaser. (b) Purchaser act on Seller's behalf except as specifically set forth herein. Buyer further acknowledges that Seller has delivered made no warranty or representation and is making no warranty or representation regarding the environmental condition of the Property. Effective at Settlement and to Purchaser the materials listed on Exhibit Bfullest extent permitted by law, Buyer hereby releases, discharges and forever acquits Seller and all of Seller’s officers, directors, shareholders, employees, agents and independent contractors and successors, and that each and every one of them, from all matters disclosed by such deliveries are acceptable to Purchaser demands, claims, liabilities, obligations, costs and shall not be the basis for any objection hereunder. The matters of title and survey reflected in the materials already delivered to Purchaser are "Permitted Exceptions" deemed acceptable to Purchaser. Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser expenses, which Buyer may specifically identify in writing, excluding any materials of a proprietary nature, not suffer or incur relating to the condition or performance of the Property or the Tenant. All due diligence updates shall be at Purchaser's sole expenseProperty. (c) If notice of termination is not given prior to expiration of the Feasibility Period, all such matters shall be deemed acceptable and all such conditions satisfied and/or waived. (d) Purchaser agrees to repair any damage caused directly by exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold the Seller harmless from any and all losses actually incurred as a direct result of the exercise of such right of access, other than as a result of the Seller's negligence or willful misconduct. Seller will cooperate and assist Purchaser's access to the buildings.

Feasibility. (a) During Purchaser shall have a period of up to *** days after the fifteen (15) business day period following effective date of this Contract to inspect the latest Property and perform all necessary due diligence deemed necessary by Purchaser regarding the Property and its purchase of the dates on which Purchaser and Seller have both executed this Agreement Property (the "Feasibility Period"), Purchaser, its agents, employees and contractors shall have the right to enter the Property for the purpose of inspecting improvements, making surveys, updating the due diligence materials previously delivered to Purchaser pursuant to 6(b) below, and performing other tests, studies and examinations as Purchaser, in its sole discretion, desires and to confirm the availability of financing, on terms and conditions acceptable to Purchaser. If Purchaser is not satisfied, in its sole discretion, with all aspects of the Property and the results of all tests and studies, and the availability of the specified financing, Purchaser shall have the right, upon written notice to Seller given prior to expiration of Within the Feasibility Period, if Purchaser in its sole judgment and discretion determines that the Property is suitable to Purchaser, Purchaser shall notify Seller in writing of Purchaser's intention to close the purchase of the Lots. Notwithstanding anything contained herein to the contrary, the written notice of Purchaser's intent to purchase the Lots ("Notice of Suitability"), and any Supplemental Notice of Suitability as described in Section 2.03 below, shall not be effective unless signed by one of the officers of Purchaser named in Article XX (p) herein. If Purchaser fails to send Seller a Notice of Suitability on or before the last day of said *** period or, if applicable, a Supplemental Notice of Suitability as described in Section 2.03, and such failure continues for a period of ten (10) days after written notice from Seller, this Contract shall automatically terminate this Agreement, in which event and the Deposit shall Earnest Money will be returned to Purchaser. (b) Purchaser acknowledges Seller r▇▇▇▇▇▇▇ts that Seller has delivered to Purchaser it is in possession of the materials listed on Exhibit B, Property and that all matters disclosed by such deliveries are acceptable to can and will provide Purchaser and its consultants reasonable access to the Property during the Feasibility Period to conduct such tests and studies as Purchaser deems appropriate, provided that in no event (i) shall such tests or studies disrupt or disturb the ongoing operation of Seller's overall development of Spanish Trails adjacent to the Property, or (ii) shall Purchaser or its agents or representatives drill or bore on or through the surface of the Property without Seller's prior written consent, which consent shall not be the basis for any objection hereunderunreasonably withheld. The matters of title After making such tests and survey reflected in the materials already delivered studies, Purchaser agrees promptly to Purchaser are "Permitted Exceptions" deemed acceptable to Purchaser. Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser may specifically identify in writing, excluding any materials of a proprietary nature, not relating to the condition or performance of restore the Property or the Tenant. All due diligence updates shall be at Purchaser's sole expense. (c) If notice of termination is not given to its condition prior to expiration of the Feasibility Period, all such matters shall be deemed acceptable tests and all such conditions satisfied and/or waived. (d) studies. Purchaser agrees to repair any damage caused directly by exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold harmless the Seller from and against any mechanics or other liens or claims that may be filed or asserted against the Property or Seller by anyone performing any such work on Purchaser's behalf. Seller shall not be liable nor responsible for personal injury or property damage caused or occasioned by such tests and studies, and Purchaser shall indemnify and save Seller harmless from any and all losses actually incurred as a direct result loss, damage or claim resulting therefrom, irrespective of the exercise termination of such right this Agreement. _______________ ***Denotes omission of access, other than as information pursuant to a result request for confidential treatment. An copy of this agreement which includes the Seller's negligence or willful misconductomitted information has been filed separately with the Securities and Exchange Commission. Seller will cooperate and assist Purchaser's access to the buildings._______________ 3

Feasibility. (a) During the fifteen (15) business day period following the latest of the dates Through 5:00 p.m. Central time, on which Purchaser and Seller have both executed this Agreement January 29, 2008 (the "Feasibility Period"), ," Purchaser, its agents, employees and contractors shall have the right to enter the Property for the purpose of inspecting improvements, evaluating the Lease and the Declaration, making surveys, updating the due diligence materials previously delivered to Purchaser pursuant to Section 6(b) below, below and performing other tests, tests studies and examinations as Purchaser in its sole discretion desires. If Purchaser, in its sole discretion, desires and to confirm the availability of financing, on terms and conditions acceptable to Purchaser. If Purchaser is not satisfiedsatisfied with the Property, in its sole discretion, with all aspects of the Property and "Due Diligence Materials" or the results of all tests and studiesany tests, and the availability of the specified financingincluding any materially adverse facts or conditions which may be revealed by a Phase I Environmental report, survey or title examination, Purchaser shall have the right, upon written notice to Seller given prior to expiration of the Feasibility Period, to terminate this Agreement, in which event the Deposit shall be returned to Purchaser. (b) Purchaser acknowledges that Seller has delivered delivered, or will promptly deliver, to Purchaser the materials listed on Exhibit B, and that all matters disclosed by such deliveries are acceptable to Purchaser and shall not be B (the basis for any objection hereunder. The matters of title and survey reflected in the materials already delivered to Purchaser are "Permitted Exceptions" deemed acceptable to PurchaserDue Diligence Materials"). Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser may specifically identify in writing, excluding any materials of a proprietary nature, not relating to the condition or performance of the Property or the Tenanttenant. All due diligence updates shall be at Purchaser's sole expense. (c) If notice of termination is not given prior to expiration 5:00 p.m. Central time on the last day of the Feasibility Period, all such matters Purchaser shall be deemed acceptable and all such conditions satisfied and/or waivedto have waived the termination right under Section 6(a) above. (d) Purchaser agrees to repair any damage caused directly by any negligence or other wrongful act or omission by Purchaser, its agents, employees or contractors (collectively, the "Purchaser Parties"), in connection with or relating to the exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold the Seller harmless from any and all losses actually incurred as a direct result of any such negligence or wrongful act of any of the Purchaser Parties in connection with or relating to the exercise of such right of access, other than as a result of the Seller's negligence or willful misconduct. Seller will cooperate and assist Purchaser's access to the buildings.

Feasibility. (a) During the fifteen (15) business day period following the latest of the dates on which Purchaser and Seller have both executed this Agreement (the "Feasibility Period"), Purchaser, its agents, employees and contractors shall have the right to enter the Property for the purpose of inspecting improvements, making surveys, updating the due diligence materials previously delivered to Purchaser pursuant to 6(b) below, and performing other tests, studies and examinations as Purchaser, in its sole discretion, desires and to confirm the availability of financing, on terms and conditions acceptable to Purchaser. If Purchaser is not satisfied, in its sole discretion, with all aspects of the Property and the results of all updated tests and studiesincluding any materially adverse facts or conditions not shown in the Due Diligence Materials (defined below) which may be revealed by an updated Phase I Environmental report, and the availability of the specified financingsurvey or title examination, Purchaser shall have the right, upon written notice to Seller given prior to expiration of the Feasibility Period, to terminate this Agreement, in which event the Deposit shall be returned to Purchaser. (b) Purchaser acknowledges that Seller has delivered to Purchaser the materials listed on Exhibit BB (the "Due Diligence Materials"), and that all matters disclosed by such deliveries are acceptable to Purchaser and shall not be the basis for any objection hereunder. The matters of title and survey reflected in the materials already delivered to Purchaser are "Permitted Exceptions" deemed acceptable to Purchaser. Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser may specifically identify in writing, excluding any materials of a proprietary nature, not relating to the condition or performance of the Property or the Tenanttenant. All due diligence updates shall be at Purchaser's sole expense. (c) If notice of termination is not given prior to expiration of the Feasibility Period, all such matters shall be deemed acceptable and all such conditions satisfied and/or waivedwaived and the termination right under 6(a) shall be extinguished. (d) Purchaser agrees to repair any damage caused directly by exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold the Seller harmless from any and all losses actually incurred as a direct result of the exercise of such right of access, other than as a result of the Seller's negligence or willful misconduct. Seller will cooperate and assist Purchaser's access to the buildings.

Feasibility. Buyer completion of a feasibility study satisfactory to the Buyer that it is feasible for Buyer to own and operate the Property and improvements to be constructed thereon by Buyer in a manner and upon terms and conditions satisfactory to Buyer. The feasibility study may include, but shall not be limited to, (ai) During Buyer's satisfaction that all permits, building permits, approvals and licenses, shoreline permits and any other governmental approvals or permits, including zoning, are available with conditions acceptable to Buyer and all appeal periods for such matters have expired; (ii) Buyer is satisfied that there are no Hazardous Materials (as defined in Section 7.4(b)) on the fifteen Property; and (15iii) business day period following Buyer is in receipt of all plans, specifications, permits, soil studies, environmental audits, and any other related information, including the latest Development Documents, if any, which are available to Seller. Buyer shall have one hundred eighty (180) days after the recordation of the dates on which Purchaser and Seller have both executed this execution of the Agreement (the "Feasibility Period"), Purchaser, its agents, employees and contractors ) to give Seller written notice that this condition is satisfied. (a) Buyer agrees that it shall have the right to enter the Property be solely responsible for the purpose nature, scope and extent of inspecting improvements, making surveys, updating its investigations of the due diligence materials previously delivered to Purchaser pursuant to 6(b) belowProperty, and performing other testsno statements made or information provided by Seller shall be construed or relied upon as advice or recommendation as to the kind or extent of any studies, studies and examinations as Purchaser, in its sole discretion, desires and to confirm the availability of financing, on terms and conditions acceptable to Purchasertests or evaluations which should be obtained by Buyer or will be adequate for Buyer’s purposes. If Purchaser is not satisfied, in its sole discretion, with all aspects No physical intrusions of the Property shall occur without the Seller’s prior written consent, which shall not be unreasonably withheld or delayed. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all liens, claims, loss or liability arising out of Buyer's or Buyer's Agents' entry onto the results of all tests and studies, and the availability of the specified financing, Purchaser shall have the right, upon written notice to Seller given Property prior to expiration Closing. Buyer shall return the Property to its pre-existing condition immediately upon completion of any invasive inspection. This indemnification and defense obligation shall survive the Feasibility Periodfeasibility period, to terminate termination of this Agreement, in which event the Deposit shall be returned to Purchaserand Closing. (b) Purchaser acknowledges that Seller has delivered to Purchaser the materials listed on Exhibit B, and that all matters disclosed by such deliveries are acceptable to Purchaser and shall not be the basis for any objection hereunder. The matters of title and survey reflected in the materials already delivered to Purchaser are "Permitted Exceptions" deemed acceptable to Purchaser. Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser may specifically identify in writing, excluding any materials of a proprietary nature, not relating to the condition or performance of the Property or the Tenant. All due diligence updates shall be at Purchaser's sole expense. (c) If notice of termination is not given prior to expiration of the Feasibility Period, all such matters shall be deemed acceptable and all such conditions satisfied and/or waived. (d) Purchaser agrees to repair any damage caused directly by exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold the Seller harmless from any and all losses actually incurred as a direct result of the exercise of such right of access, other than as a result of the Seller's negligence or willful misconduct. Seller will cooperate and assist Purchaser's access to the buildings.

Feasibility. (a) During the fifteen (15) business day period following the latest of the dates on which Purchaser and Seller have both executed this Agreement (the "Feasibility Period"), Purchaser, its agents, employees and contractors shall have the right to enter the Property for the purpose of inspecting improvements, making surveys, updating the due diligence materials previously delivered to Purchaser pursuant to Section 6(b) below, below and performing other tests, tests studies and examinations as Purchaser in its sole discretion desires.. If Purchaser, in its sole discretion, desires and to confirm the availability of financing, on terms and conditions acceptable to Purchaser. If Purchaser is not satisfied, in its sole discretion, satisfied with all aspects of the Property and the results of all any updated tests and studiesincluding any materially adverse facts or conditions not shown in the Due Diligence Materials (defined below) which may be revealed by an updated Phase I Environmental report, and the availability of the specified financingsurvey or title examination, Purchaser shall have the right, upon written notice to Seller given prior to expiration of the Feasibility Period, to terminate this Agreement, in which event the Deposit shall be returned to Purchaser. (b) Purchaser acknowledges that Seller has delivered to Purchaser the materials listed on Exhibit BB (the "Due Diligence Materials"), and that all matters disclosed by such deliveries are acceptable to Purchaser and shall not be the basis for any objection hereunder. The matters of title and survey reflected in the materials already delivered to Purchaser are "Permitted Exceptions" deemed acceptable to Purchaser. Seller shall promptly deliver to Purchaser such other due diligence materials in Seller's possession as Purchaser may specifically identify in writing, excluding any materials of a proprietary nature, not relating to the condition or performance of the Property or the Tenanttenant. All due diligence updates shall be at Purchaser's sole expense. (c) If notice of termination is not given prior to expiration of the Feasibility Period, all such matters shall be deemed acceptable and all such conditions satisfied and/or waivedwaived and the termination right under Section 6(a) shall be extinguished. (d) Purchaser agrees to repair any damage caused directly by exercise of the right of access granted to Purchaser in this paragraph, and to indemnify and hold the Seller harmless from any and all losses actually incurred as a direct result of the exercise of such right of access, other than as a result of the Seller's negligence or willful misconduct. Seller will cooperate and assist Purchaser's access to the buildings.