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(2) abandons or substantially suspends all material work on the Development <br /> for a period of twelve (12) months after written notice of such abandonment or <br /> suspension from the City; <br /> (3) fails to complete all of the Minimum Development Elements by the Final <br /> Completion Date; or <br /> (4) assigns, transfers or suffers any involuntary transfer of the City Property <br /> or any part thereof or any rights under this Agreement in violation of this Agreement. <br /> Notwithstanding anything to the contrary contained herein, (i) the Repurchase Option <br /> shall not be applicable to any portion of the City Property for which the City has issued a partial <br /> Certificate of Completion, and (ii) the City shall not assign the Repurchase Option unless OM <br /> has failed to cure a breach of this Agreement within sixty (60) days following written notice <br /> from the City. <br /> The Repurchase Option shall be subordinate and subject to and be limited by and shall <br /> not defeat, render invalid, or limit: <br /> (I) any mortgage, deed of trust, or other security instrument or sale and <br /> leaseback or other conveyance for financing permitted by this Agreement; or <br /> (2) any rights or interests provided in this Agreement for the protection of the <br /> holder of such mortgages, deeds of trust, or other security instruments, the lessor under a <br /> sale and leaseback, or the grantee under such other conveyance for financing. <br /> To exercise the Repurchase Option, the City, or the holder of the Repurchase Option at <br /> the time of its exercise, shall pay to OM in cash an amount equal to: <br /> (1) the fair market value of the Designated Option to Repurchase Property, as <br /> determined by an MAI Appraiser selected by the City in accordance with professional <br /> appraisal standards, specifically including the Code of Professional Ethics of the <br /> Appraisal Institute and the Uniform Standards of Professional Appraisal Practice of the <br /> Appraisal Foundation, excluding any value attributable to any City Work and any <br /> property or interests dedicated or conveyed, or required to be dedicated or conveyed, to <br /> the City, including, without limitation, the Main Road; less <br /> (2) any amounts paid by the City, or any assignee of the Option to <br /> Repurchase, to remove any liens or other encumbrances placed on the City Property by or <br /> as a result of the actions or omissions of OM; less <br /> (3) any income withdrawn or made by OM from the Designated Option to <br /> Repurchase Property subject to the Repurchase Option or the improvements thereon; and <br /> less <br /> (4) any costs incurred by the City in enforcing the Repurchase Option and <br /> causing the reconveyance of the Designated Option to Repurchase Property by OM to the <br /> City. <br /> -39- <br /> 06107-0063 LEGAL 13023969.1 <br />