Common use of Failure of Conditions Clause in Contracts

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove any of the conditions set forth in Section 4.1 within the time specified, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4The conditions set forth in Sections 8.1 and 8.2, should Buyer disapprove any of other than the conditions set forth in Section 4.1 within Sections 8.2(e) – (o), are referred to herein as “Closing Day Conditions,” and the time specifiedconditions set forth in Sections 8.2(e) – (o) are referred to herein as “Pre-Closing Day Conditions.” If a Party is not in default under this Agreement, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either (a) a Closing Day Condition is not satisfied or waived as of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered Closing Date (as same may be duly extended pursuant to the provisions terms hereof), or (b) a Pre-Closing Day Condition is not satisfied or waived as of this Agreementsuch Closing Date or was satisfied or waived fewer than ten (10) Business Days prior to such Closing Date, in which event then the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain Party benefiting from such condition (the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To “Electing Party”) may either (i) waive such condition and proceed to Closing (subject to the terms and conditions of this Agreement), or (ii) extend the Closing Date with the Closing; provided, however, that Buyer’s failure respect to so approve or disapprove of any Property affected by such condition shall be deemed approval thereof; provided further, however, to the date that should Buyer disapprove of any exception to title is ten (10) Business Days after such Closing Date and close on the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice remainder of the Title Defect which it has disapproved, Properties (subject to the terms and Seller shall have an additional five (5conditions of this Agreement) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct on such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title DefectClosing Date. If Seller is unwilling the Electing Party shall elect the option set forth in preceding clause (ii) and as of such extended Closing Date either of clause (a) or unable to correct any such Title Defect(b) of this Section 9.3 shall exist, the Electing Party may elect between either of preceding clauses (i) or (ii). This iterative process shall continue until all Properties have been acquired by a Buyer or otherwise excluded from this Agreement, or, if earlier, the occurrence of the Outside Closing Date. If as of the Outside Closing Date a closing condition set forth in Section 8.1 or Section 8.2 has not been satisfied or waived, the Electing Party shall have the right to exercise (1) if a Portfolio MAE exists, terminate this Agreement with respect to all remaining Properties, in which case the remedy contained in Section 4.2(aDeposit Escrow Agent shall promptly refund the remaining Deposit to Buyer, and the Parties hereto shall have no further rights or obligations under this Agreement with respect to such Properties (except for such obligations that expressly survive the termination of this Agreement). If Seller states that it is willing ; (2) terminate this Agreement with respect to any Property with respect to which a closing condition has not been satisfied or waived (each such excluded Property, a “Closing Condition Excluded Property”) and able to do soclose on the remainder of the Properties on the Outside Closing Date, then Seller whereupon (A) Buyers shall proceed to correct Closing (subject to the Title Defect as soon as is practicableterms and conditions of this Agreement) with respect to the remaining Properties, (B) the remaining Purchase Price shall be reduced according to the Allocated Purchase Price for each Closing Condition Excluded Property, (C) a portion of the Deposit equal to the product of (x) $40,000,000 and (y) (the Allocated Purchase Price of the Closing Condition Excluded Property(ies) divided by $1,320,000,000) shall be returned to Buyers, and in all events prior (D) Buyers and the applicable Seller shall have no further rights, obligations, or remedies under this Agreement with respect to Closing, and if Seller is thereafter unable to correct each such Closing Condition Excluded Property (except as may expressly survive such partial termination); or (3) waive the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company failed closing condition (but without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate other rights of the rights or remedies Electing Party hereunder) and proceed to Closing in accordance with the terms of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement and without any adjustment to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etcPurchase Price., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer Recipient disapprove any of the conditions set forth in Section 4.1 within the time specified, Buyer Recipient shall have the power, exercisable in its sole and absolute discretion by giving of written notice to SellerContributor, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, Deposit less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for SellerContributor’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that BuyerRecipient’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer Recipient disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer Recipient shall first give five one (51) business days day’s written notice of the Title Defect which it has disapproved, and Seller Contributor shall have an additional five one (51) business days day after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller Contributor shall give written notice to Buyer Recipient within such five one (51) business day period whether it is willing or able to correct such Title Defect. If Seller Contributor is unwilling or unable to correct any such Title Defect, Buyer Recipient shall have the right to exercise the remedy contained in Section 4.2(a). If Seller Contributor states that it is willing and able to do so, then Seller Contributor shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller Contributor is thereafter unable to correct the Title Defect prior to the Closing, Buyer Recipient shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without BuyerRecipient’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer Recipient shall reduce or eliminate the rights or remedies of Buyer Recipient by reason of any breach of any covenant, representation, or warranty made by Seller Contributor in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller Contributor shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at SellerContributor’s sole cost and expense with no right of reimbursement from BuyerRecipient. If Seller Contributor is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer Recipient shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject (a) If the conditions set forth in Sections 6.1(c) or (e) cannot or will not be satisfied at or prior to the Closing Date (unless the failure to satisfy any such conditions is caused by the default of Purchaser under this Agreement), and, if curable, Sellers are unable to cure any such matter or satisfy such condition within fifteen (15) days after written notice thereof from Purchaser (which fifteen (15) day period shall, if necessary, automatically extend the Closing Date to the expiration of such fifteen (15) day period), then Purchaser may elect by written notice delivered to Sellers to terminate this Agreement, in which event (i) the parties shall retain their rights to enforce the Inspection Agreement, the Confidentiality Agreement and the provisions of Section 6.48.6 which expressly survive a termination of this Agreement, should Buyer disapprove (ii) the Deposit shall be returned to Purchaser, and (iii) all other rights and obligations of the parties hereunder (except those referenced in clause (i)) shall terminate immediately. Notwithstanding the foregoing, in the event that the condition set forth in Section 6.2(d) has not been satisfied by the Closing Date, and if Purchaser has the right to commence an action for specific performance under the CNL Agreement and elects to commence such an action in the name of Sellers and Purchaser, Purchaser shall have the right to adjourn the Closing Date until such date as a closing is mandated by court order. The costs of such litigation shall be borne 55% by Sellers and 45% by Purchaser, payable monthly. If Sellers and Purchaser do not prevail in such litigation, then upon the earlier to occur of (x) the issuance of a final non-appealable decision denying the plaintiffs specific performance or (y) the decision by Purchaser not to pursue the litigation any further, either Sellers or Purchaser may elect to terminate this Agreement as provided above. If the conditions set forth in Sections 6.1 (a), (b) or (d) cannot or will not be satisfied on or prior to the Closing Date (unless the failure to satisfy such condition is caused by the default of Purchaser or its Affiliates under this Agreement), the provisions of Section 10.1 shall govern. (b) If the conditions set forth in Section 4.1 6.2(c) or (d) cannot or will not be satisfied at or prior to the Closing Date (unless the failure to satisfy such condition is caused by the default of Sellers under this Agreement), and, if curable, Purchaser is unable to cure any such matter or satisfy such condition within the time specified, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of fifteen (15) days after written notice to Sellerthereof from Sellers (which fifteen (15) day period shall, of either of if necessary, automatically extend the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant Closing Date to the provisions expiration of such fifteen (15) day period), then Sellers may elect by written notice delivered to Purchaser to terminate this Agreement, in which event (i) the parties shall retain their rights to enforce the Inspection Agreement, the confidentiality Agreement and the provisions of Section 8.6 which expressly survive a termination of this Agreement, (ii) the Deposit shall be relieved returned to Purchaser, and released (iii) all other rights and obligations of any further duties, obligations and responsibilities the parties hereunder (except for Seller’s right to retain those referenced in clause (i)) shall terminate immediately. If the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as conditions set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve 6.2(a) or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”b) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing cannot or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall will not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at satisfied on or prior to the Closing at Seller’s sole cost and expense with no right Date (unless the failure to satisfy such condition is caused by the default of reimbursement from Buyer. If Seller is unwilling Sellers or unable to remove such monetary encumbrancesHdC under this Agreement), deeds the provisions of trust, liens, mortgages, etcSection 10.2 shall govern., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove In the event that any or all of the conditions Pre-Closing --------------------- Conditions are not satisfied or otherwise waived by Purchaser, in writing, prior to expiration of the applicable time periods set forth above in Section 4.1 within the time specifiedhereof, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To then Purchaser may terminate this Agreement and recover any amounts paid by delivering written notice thereof to Seller on account or before the expiration of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closingapplicable time period; provided, howeverif Purchaser fails to timely deliver any such written notice, that Buyer’s this Agreement shall be deemed automatically terminated and of no further force or effect. Purchaser's failure to so approve or disapprove of any such condition Pre-Closing Condition before the expiration of the applicable time periods shall be deemed approval thereof; provided furtherdisapproval of such Pre-Closing Condition. If Purchaser so elects to terminate this Agreement or this Agreement is automatically terminated, the Deposit and all interest earned thereon shall promptly be returned to Purchaser and Purchaser shall not have any further liability or obligation to Seller hereunder. If Purchaser does not elect to terminate this Agreement due to a failure of any of the Pre-Closing Conditions and notifies Seller in writing that it intends to proceed with the purchase of the Property prior to the expiration of the applicable time periods, subject to the terms and provisions of this Agreement the Deposit shall become non-refundable to Purchaser and the Deposit shall be held in escrow for Seller's benefit, however, that should Buyer disapprove all interest earned thereon after the expiration of the Conditions Period shall be for the Purchaser's benefit. If the Pre-Closing Conditions are satisfied or waived by Purchaser but any exception to title or all of the Closing Conditions are not satisfied or waived by Purchaser on or before the date established for the Closing (as such date may be extended), then Purchaser shall notify Seller in writing of those Closing Conditions which have not been satisfied or otherwise waived by Purchaser (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and "Closing Conditions Failure Notice"). Seller shall have an additional five three (53) business days after receiving Purchaser has delivered to Seller the notice of Title Defect thereafter Closing Conditions Failure Notice (and the Closing shall be extended, if necessary to determine whether it is willing or able to correct give Seller such Title Defect. Seller shall give written notice to Buyer within such five three (53) business day period whether it is willing period) to notify Purchaser in writing of Seller's election either to (a) take such actions as may be necessary to cure such matters to Purchaser's satisfaction prior to the date of Closing (as same may be extended), or able to correct (b) advise Purchaser that Seller will not cure such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have matters (the right to exercise the remedy contained in Section 4.2(a"Seller's Conditions Notice"). If Seller states that it is willing elects not to cure such matters, then within two (2) business days after Purchaser's receipt of the Seller's Conditions Notice (and able the Closing shall be extended, if necessary to give Purchaser such two (2) business day period), Purchaser, at its sole option, may elect to do soany of the following: (1) Purchaser may elect to terminate this Agreement by delivering written notice thereof to Seller, in which event Seller shall promptly cause the return to Purchaser of the Deposit and all interest earned thereon; (2) if the Closing Condition in question is any of those conditions specified in Sections 4.2.2, 4.2.3 or 4.2.4 and Seller is not in any manner responsible for the deviation or failure of such Closing Condition, then Purchaser may elect to terminate this Agreement by delivering written notice thereof to Seller, in which event Seller shall proceed promptly cause the return to correct Purchaser of the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any Deposit and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to interest earned thereon; (3) if the Closing at Seller’s sole cost and expense with no right Condition in question is any of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).those conditions specified

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove If any of the conditions set forth in Section 4.1 within the time specified8.1 is not timely satisfied or waived by Seller in writing, Buyer Seller shall have the power, exercisable in its sole and absolute discretion by giving of written notice right to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant by written notice given to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice following the date for satisfaction of such condition. If any of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it conditions set forth in Section 8.2 is willing not timely satisfied or able to correct such Title Defect. Seller shall give written notice to waived by Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defectin writing, Buyer shall have the right to exercise terminate this Agreement by written notice given to Seller within five (5) business days following the remedy contained in Section 4.2(a)date for satisfaction of such condition. If Seller states that it is willing either party shall so terminate this Agreement, this Agreement and able to do so, then the rights and obligations of Buyer and Seller shall proceed terminate and be of no further force or effect, except as to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, those matters which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything are specifically stated in this Agreement to survive termination, and except as to the rights of the nondefaulting party if the failure of condition shall constitute a default by the other party. In the event that this Agreement is terminated pursuant to the provisions of this Section 8.3, and neither Seller nor Buyer is in default pursuant to this Agreement, the Title Company is hereby instructed to return promptly to the party which placed such items into Escrow all funds (including the Deposit, and all accrued interest thereon, which is to be promptly returned to Buyer) and documents which are held by the Title Company on the date of termination. In the event of any such termination, the Option Payment shall be retained by Seller. Notwithstanding any of the above provisions of Section 8.3 to the contrary, in the event of a termination of this Agreement by reason of a failure of the conditions set forth in Sections 8.1.5, 8.2.5 (by reason of a default of Seller or 625 ▇▇▇▇▇▇▇▇ only), or 8.2.7, Seller shall remove any return the Option Payment to Buyer within two (2) business days thereafter. Further, in the event of a termination of this Agreement by reason of the failure of the conditions set forth in Sections 8.1.6 and 8.2.8, if Buyer has previously paid the Option Payment to Seller, Seller shall 1. In the event of a default by Seller, the Deposit and all monetary encumbrances, deeds of trust, liens, mortgages, etcinterest accrued thereon and the Option Payment shall be returned to Buyer within two (2) business days thereafter., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject In the event that any or all of the Pre-Closing Conditions are not satisfied or waived within the applicable time periods specified in Section 4.1 above, then Buyer may terminate this Agreement by delivering written notice thereof to Section 6.4Seller on or before the expiration of said time periods. If Buyer so elects to terminate this Agreement, should the Initial Deposit and the Additional Deposit (to the extent then made) shall be returned to Buyer disapprove and neither Buyer nor Seller shall have any further liability or obligation to each other, except for the indemnities contained in Sections 4.4 and 15; provided, notwithstanding anything to the contrary contained herein if Buyer terminates this Agreement for failure of a Pre-Closing Condition or for any other reason other than a default on the part of Seller, Buyer shall deliver to Seller a copy of all materials, tests, audits, surveys, reports, studies and the results of any and all investigations and inspections conducted by Buyer (excluding any proprietary materials but including any materials given to Buyer by or on behalf of Seller) (collectively, the "Due Diligence Materials") as a condition precedent to Buyer's right to obtain the return of the Initial Deposit and the Additional Deposit (to the extent then made). If Buyer does not elect to terminate this Agreement due to a failure of any of the conditions set forth in Section 4.1 Pre-Closing Conditions (i) the Initial Deposit shall become non-refundable to Buyer, and (ii) within one (1) business day after the time specifiedexpiration of the Conditions Period, Buyer shall have deposit into the powerEscrow Account, exercisable in its sole and absolute discretion by giving of written notice the Additional Deposit which shall also become non-refundable to Seller, of either Buyer subject to the satisfaction or waiver of the following: a. To Closing Conditions. If the Pre-Closing Conditions are satisfied or waived by Buyer but any Closing Condition is not satisfied or waived by Buyer on or before the date established for the Closing, then Buyer may terminate this Agreement by delivering written notice thereof to Seller on or before such date and recover any amounts paid on account the Deposits shall be returned to Buyer concurrently with Buyer's delivery to Seller of the Purchase PriceDue Diligence Materials, including and neither Buyer nor Seller shall have any further liability or obligation to each other, except for the Depositindemnities contained in Sections 4.4 and 15. Failure by Buyer to notify Seller within the specified time periods set forth herein, less shall be deemed an approval by Buyer of each such matter, in which event all such conditions and contingencies shall be deemed to be satisfied and approved. In the Independent Consideration, or any documents delivered event Buyer terminates this Agreement pursuant to the provisions of this Agreementhereof, in which event the parties Buyer shall be relieved and released of any further duties, obligations and responsibilities hereunder except solely responsible for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any and all escrow and title cancellation charges or fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure payable to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etcCompany., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject In the event that any or all of the Pre-Closing Conditions are not satisfied or otherwise waived by Purchaser prior to Section 6.4expiration of the Conditions Period in writing, should Buyer disapprove then Purchaser may terminate this Agreement by delivering written notice thereof to Seller on or before the expiration of the Conditions Period; provided, if Purchaser fails to deliver any such written notice, this Agreement shall be deemed automatically terminated and of no further force or effect. If Purchaser so elects to terminate this Agreement or this Agreement is automatically terminated, the Deposit and all interest earned thereon shall promptly be returned to Purchaser and Purchaser shall not have any further liability or obligation to Seller hereunder. If Purchaser does not elect to terminate this Agreement due to a failure of any of the conditions Pre-Closing Conditions and notifies Seller in writing that it intends to proceed with the purchase of the Property prior to the expiration of the Conditions Period, subject to the terms and provisions of this Agreement, the Deposit shall become non-refundable to Purchaser and the Deposit shall be held in escrow for Seller's benefit, however, all interest earned thereon after the expiration of the Conditions Period shall be for the Purchaser's benefit. If Purchaser elects to terminate the Agreement, Purchaser shall not have any further liability or obligation hereunder, except with respect to the inspection 6 indemnity referred to in Section 4.1.2 above. Failure by Purchaser to notify Seller of the satisfaction or waiver by Purchaser of any of the contingencies set forth herein shall be deemed disapproval by Purchaser of such matters. The foregoing conditions contained in this Section 4.1 within 4 are intended solely for the time specifiedbenefit of Purchaser. If any of the foregoing conditions are not satisfied, Buyer Purchaser shall have the power, exercisable in right at its sole election either to waive the condition in question and absolute discretion by giving of written notice to Sellerproceed with the purchase or, of either of in the following: a. To alternative, terminate this Agreement or pursue all rights and recover any amounts paid on account remedies available to Purchaser under this Agreement. After the expiration of the Purchase PriceConditions Period and provided this Agreement has not already been terminated (or been deemed terminated) at or prior to the expiration of the Conditions Period, including the DepositDeposit shall be non-refundable to Purchaser subject to (i) the satisfaction or waiver by Purchaser of all of the Closing Conditions, less (ii) the Independent Considerationprovisions of Section 12 below, or and (iii) Seller not being in default of any documents delivered pursuant to of the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject If any or all of the Pre-Closing --------------------- Conditions are not satisfied or waived within the applicable time periods specified in Section 4.1 above, then Buyer may terminate this Agreement by delivering written notice thereof to Section 6.4Seller on or before the expiration of said time periods. If Buyer so elects to terminate this Agreement, should the Initial Deposit shall be returned to Buyer disapprove and neither Buyer nor Seller shall have any further liability or obligation to each other, except for Buyer's Surviving Obligations. Notwithstanding anything to the contrary contained herein, if Buyer terminates this Agreement for failure of a Pre-Closing Condition or for any other reason other than a termination due to a default by Seller, within ten (10) days after such termination Buyer shall deliver to Seller a copy of all materials, tests, audits, surveys, reports, studies and the results of any and all investigations and inspections conducted by Buyer (excluding any proprietary materials) (collectively, the "Buyer's Documents") and Buyer shall also return to Seller any and all documents, leases, agreements, reports and other materials given to Buyer by or on behalf of Seller (collectively, the "Seller's Documents") (the Buyer's Documents and the Seller's Documents are collectively referred to herein as the "Due Diligence Materials"). Notwithstanding anything to the contrary contained in this Agreement, if Buyer terminates this Agreement as a result of a default by Seller, Buyer shall not be obligated to deliver the Buyer's Documents to Seller upon or after such termination. The foregoing covenants of Buyer shall survive any such termination of this Agreement. If Buyer fails to terminate this Agreement by delivering written notice thereof to Seller prior to 5:00 p.m. (Pacific Time) on the Approval Date, (i) the Initial Deposit shall become non-refundable to Buyer, and (ii) within one (1) business day after the Approval Date, Buyer shall deposit into the Escrow Account, the Additional Deposit which shall also become non-refundable to Buyer subject to the satisfaction or waiver of the Buyer's Closing Conditions. The funding by Buyer of the Additional Deposit shall conclusively constitute Buyer's approval of the Pre-Closing Conditions. If the Pre-Closing Conditions are satisfied or waived by Buyer but any or all of the Buyer's Closing Conditions are not satisfied or waived by Buyer on or before the date established for the Closing, then Buyer shall notify Seller in writing of those Buyer's Closing Conditions which have not been satisfied or otherwise waived by Buyer (the "Buyer's Closing Conditions Failure Notice"). Seller shall have three (3) business days after Buyer has delivered to Seller the Buyer's Closing Conditions Failure Notice (and the Closing shall be extended, if necessary to give Seller such three (3) business day period) to notify Buyer in writing of Seller's election either to (a) take such actions as may be necessary to cure such matters to Buyer's reasonable satisfaction prior to the date of Closing (as same may be extended), or (b) advise Buyer that Seller will not cure such matters (the "Seller's Conditions Notice"). If Seller elects not to cure such matters, then within two (2) business days after Buyer's receipt of the Seller's Conditions Notice (and the Closing shall be extended, if necessary to give Buyer such two (2) business day period), Buyer, at its sole option, may elect to do any of the conditions set forth in Section 4.1 within the time specified, following: (1) Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice may elect to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant by delivering written notice thereof to the provisions of this AgreementSeller, in which event Seller shall promptly cause the return to Buyer of the Deposits, and the parties shall be relieved and released of any have no further duties, obligations and responsibilities hereunder except for Seller’s right to retain Buyer's Surviving Obligations; (2) if the Independent Contract Consideration as provided Buyer's Closing Condition in Section 3.5, question is any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy those conditions specified in Section 4.2(a). No Title Defect may be insured over Sections 4.2.1.1, 4.2.1.3, 4.2.1.4 or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc4., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove If any of the conditions set forth in Section paragraphs 5.1 or 5.2 above are not timely satisfied or waived by the applicable party, for any reason other than the default of Buyer or Seller under this Agreement, then this Agreement and the rights and obligations of Buyer and Seller shall terminate and be of no further force or effect except as to those matters as specifically stated in this Agreement to survive expiration or early termination, in which case the Title Company is hereby instructed to return promptly to Buyer the Deposit in accordance with paragraph 4.1 within and to the time specifiedparty which placed such items into Escrow the documents that are held by the Title Company on the date of termination. Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge that, if Buyer elects to extend the Due Diligence Period pursuant to paragraph 4.1.1 above, the Initial Deposit and the Additional Deposit become non-refundable to Buyer except (i) in the event of a default by Seller hereunder (in which event the provisions of paragraph 6.2 shall apply), or (ii) in the event of a failure of any of Seller’s representations or warranties contained herein due to changed circumstances not caused by an act of Seller (as opposed to Seller’s breach or inaccuracy in any representation of Seller as of the date of this Agreement pursuant to paragraph 8 below) as of the Close of Escrow, in which case Buyer shall have the poweroption either to (i) proceed with the Closing and the Deposit shall be applied to the Purchase Price, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To or (ii) terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties Deposit shall be relieved and released of any further dutiesreturned to Buyer. Consequently, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4the preceding sentence, and subject if Buyer terminates this Agreement pursuant to the payment of this paragraph 5.3 at any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that time after Buyer’s failure election to so approve or disapprove of any such condition shall be deemed approval thereof; provided furtherextend the Due Diligence Period, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate hereby is instructed to promptly release the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement Deposit to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etcSeller., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject 8.1 In the event Sellers shall not be able to Section 6.4convey the Landlord's Estoppels and title to the Assets on the date of Closing in accordance with the provisions of this Agreement for any reason whatsoever, should Buyer disapprove any or if all of the conditions precedent set forth in Section 4.1 within the time specified6 hereof have not been satisfied in full at or prior to Closing, then Buyer shall have the powerfollowing options (the "Termination Options"), exercisable in its sole and absolute discretion by giving of written notice to SellerSellers at or prior to the Closing, of either of the following: a. To or at such earlier date as may be specified elsewhere in this Agreement, if applicable: (1) Buyer may terminate this Agreement and recover any amounts paid on account of Agreement, in which case the Purchase Price, including the Deposit, less the Independent Considerationparties shall have no other rights or obligations hereunder, or any documents delivered (2) Buyer may waive its objections hereunder and proceed with the transaction pursuant to the provisions remaining terms and conditions of this Agreement, in which event the parties any such waived objection shall be relieved and released of any further dutiesbecome a Permitted Exception, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove in such event the Purchase Price shall automatically be reduced by the amount of any such mortgage, judgment or other Lien other than a Permitted Exception not removed at or before Closing by Sellers, together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Insurer by reason thereof. Any provision of this Section 8 to the contrary notwithstanding, if Sellers' inability to convey title or the failure of condition is due to a breach by Sellers in default of their obligations hereunder, then Buyer's remedies in respect thereof shall not be limited by the foregoing provisions of this Section 8 and Buyer shall be deemed approval thereof; provided furtherpermitted to exercise forthwith any right, power or remedy available to Buyer by law, in equity or by contract. 8.2 If all of the conditions precedent to closing set forth in Section 7 hereof have not been satisfied at or prior to Closing, Sellers may terminate this Agreement, in which case the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination, provided, however, that should in such event Sellers shall be reimbursed by Buyer disapprove of any exception to for all reasonable title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, insurance company charges and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained reasonable survey charges incurred in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement connection with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition transactions contemplated by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove In the event any of the conditions to Buyer’s obligation to proceed to the Close of Escrow set forth in this Section 4.1 within 6 or set forth elsewhere in this Agreement shall fail or are otherwise are unsatisfied after Buyer has waived contingencies at the time specifiedexpiration of the Contingency Period, then at Buyer’s option, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To may terminate this Agreement and recover any amounts paid on account the Escrow created pursuant hereto and the Deposit shall be returned to Buyer. In addition, notwithstanding anything to the contrary herein, if following the expiration of the Contingency Period, a condition to the Close of Escrow for Buyer’s benefit set forth in this Agreement shall fail, then in addition to Buyer’s right to terminate the Agreement in its entirety, Buyer may terminate the Agreement with respect only to the Property for which the condition has failed (in which event the Agreement shall remain in effect for the balance of the Properties except that the Purchase PricePrice shall be reduced to reflect the elimination of a Property and the Deposit shall be allocated to the Purchase Price of the other Properties for which this Agreement has not been terminated); provided that if such termination would not result in the transfer of the Remaining Properties, Sellers shall have the right to deliver written notice to Buyer within three (3) days after receiving Buyer’s partial termination notice stating that Buyer must either proceed with the acquisition of the Properties, including the Deposit, less the Independent ConsiderationRemaining Properties, or any documents delivered pursuant to terminate the provisions of this AgreementAgreement in its entirety, in which event the parties Deposit shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right refunded to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive Buyer (it being agreed that such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall election must be deemed approval thereof; provided further, however, that should made by Buyer disapprove of any exception to title within three (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (53) business days of receiving Seller’s written notice of the Title Defect which it has disapprovedprovided above, and Seller shall have an additional five (5) business days after receiving if Buyer fails to make the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give election by delivering written notice to Buyer Sellers within such five the three (53) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defectdescribed above, Buyer shall be deemed to have made the right election to exercise proceed with the remedy contained in Section 4.2(aacquisition of the Properties, including the Remaining Properties). If Seller states that it is willing and able Buyer elects to do so, then Seller shall proceed to correct the Title Defect terminate this Agreement in whole or in part as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closingaforesaid, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record do so by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement delivering a termination notice to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(aapplicable Seller(s).