Common use of New Exceptions Clause in Contracts

New Exceptions. 4.5.1 If any Title Update discloses any additional items, which (i) are not caused by or the result of any act or fault of Purchaser, any Affiliate of Purchaser or any Purchaser Consultant, (ii) are not Mortgages, Tax Liens, Voluntary Liens or Other Monetary Liens (which are covered by Section 4.4) or Violations (which are covered by Section 4.6), (iii) are not items that constitute Permitted Exceptions under Section 4.3, and (iv) are not disclosed in any prior Title Update (but subject to rights of Purchaser with respect to such prior Title Update) (each, a “New Exception”), Purchaser shall notify Sellers in writing of Purchaser’s approval or disapproval of such New Exception not later than the date that is the earlier (such earlier date, the “New Exception Review Period Expiration Date”) of (i) three (3) Business Days after the date of its receipt of such Title Update and (ii) the Closing Date. 4.5.2 If Purchaser fails to deliver written notice of its approval or disapproval of any New Exception on or prior to the New Exception Review Period Expiration Date, or if it approves any New Exception, such New Exception shall be deemed to be a Permitted Exception. 4.5.3 If Purchaser delivers written notice of its disapproval of any New Exception on or prior to the New Exception Review Period Expiration Date, such New Exception shall constitute an “Objected New Exception” and the applicable Seller may, in such Seller’s sole discretion, notify Purchaser as to whether it elects to attempt to Remove such New Exception. For the avoidance of doubt, the failure to Remove any Objected New Exception shall not be deemed to constitute a breach of any covenant or warranty of any Seller under this Agreement. 4.5.4 If (A) the applicable Seller does not elect, pursuant to Section 4.5.3, to attempt to Remove any Objected New Exception, or are unable, prior to the Outside Closing Date, to Remove any Objected New Exception, or (B) such Seller does not elect, pursuant to Section 4.4, to attempt to remove any Other Monetary Lien which it is not obligated to Remove, under such Section 4.4, then Purchaser shall have the right, as its exclusive remedy, to elect to either (i) waive its objection to such Objected New Exception or Other Monetary Lien and proceed with the Transactions without a reduction in the Purchase Price, in which event Purchaser shall be deemed to have approved such Objected New Exception or Other Monetary Lien and such Objected New Exception or Other Monetary Lien shall constitute a Permitted Exception, or (ii) elect, by written notice to Sellers, to terminate this Agreement solely with respect to the applicable Property (which is subject to the applicable Objected New Exception or Other Monetary Lien) and, upon any such election, (a) this Agreement shall be deemed automatically terminated solely with respect to the applicable Property (and the applicable Property shall no longer constitute a “Property” for the purposes of this Agreement) effective as of Purchaser’s notice to Sellers of such election, (b) such Property shall be excluded from the property to be sold by Sellers to Purchaser at the Closing, (c) the Purchase Price payable by Purchaser at the Closing shall be reduced by an amount equal to the Allocated Purchase Price allocated to such Property as set forth on Schedule I and (d) all of Sellers’ representations, warranties, covenants, liabilities and obligations, and Purchaser’s rights, with respect to such Property shall be void and of no further force and effect (without limiting the respective rights and obligations of the parties with respect to the other Properties and except for matters which expressly survive the termination of this Agreement). 4.5.5 Notwithstanding the foregoing provisions of this Section 4.5, if the Closing occurs, Purchaser shall be deemed to have accepted any New Exception as a Permitted Exception and shall have no further rights or remedies with respect to such New Exception except as otherwise set forth in this Agreement.

New Exceptions. 4.5.1 If 4.4.1 Purchaser may order (x) updates to, continuations of and/or supplements to any of the Title Commitments, and/or (y) updates or supplements to the Surveys (each of the foregoing, a “Title Update”), in each case, at Purchaser’s sole cost and expense. Purchaser shall use commercially reasonable efforts to request any title company and any surveyor to simultaneously deliver directly to Purchaser’s and Sellers’ respective counsel referenced in Section 14.21 of this Agreement copies of each Title Update (including tax and departmental searches) ordered by Purchaser or otherwise issued by any title company or any surveyor, and copies of all underlying documentation referenced as an exception therein. If, at any time after the Effective Date but prior to the Closing, any Title Update discloses any additional itemsitem(s), which (i) are not caused by or the result of any act or omission or fault of Purchaser, any Affiliate of Purchaser or any Purchaser Consultant, (ii) are not Mortgages, Tax Liens, Voluntary Liens or Other Monetary Liens (which are covered by Section 4.4) or Violations (which are covered by Section 4.6), (iii) are not items that constitute Permitted Exceptions under Section 4.3, and (iviii) are not disclosed individually or in the aggregate with any prior other items first reflected on any Title Update which satisfies clause (but subject i) and (ii) above, would have, or would reasonably be expected to rights have, a material adverse effect on the use and operations of Purchaser with respect to such prior Title Update) a Facility (each, a “New Exception”), Purchaser shall notify Sellers in writing of Purchaser’s approval or disapproval of such New Exception not later than the date that is the earlier (such earlier date, the “New Exception Review Period Expiration Date”) of (i) three five (35) Business Days after the date of its receipt of such Title Update and (ii) the applicable Closing Date (such earlier date, the “New Exception Review Period Expiration Date”). Notwithstanding anything contained herein to the contrary, Purchaser shall not be obligated to provide Sellers with written notice of any Mandatory Removal Matters set forth on any Title Update actually received by Sellers and all such Mandatory Removal Matters shall be subject to the terms of this Section 4.4.1. 4.5.2 4.4.2 If Purchaser fails to deliver written notice of its approval or disapproval of any New Exception on or prior to the New Exception Review Period Expiration Date, or if it approves Date (and in any New Exceptionevent prior to the applicable Closing), such New Exception shall be deemed to be a Permitted Exception. 4.5.3 4.4.3 If Purchaser delivers written notice of its disapproval of any New Exception on or prior to the New Exception Review Period Expiration Date, such New Exception Sellers shall constitute an “Objected New Exception” notify Purchaser not later than five (5) Business Days after receipt of Purchaser’s written notice of disapproval and the applicable Seller may, in such Seller’s sole discretion, notify Purchaser Closing shall be adjourned as necessary to allow Sellers to respond as to whether it elects or not they elect to attempt to Remove such New Exception. For , such election to be made in Sellers’ sole discretion, and for Purchaser to make its election in accordance with Section 4.4.4. 4.4.4 If Sellers elect not to Remove any New Exception Purchaser has disapproved in accordance with Section 4.4.3, or fail to Remove any such New Exception they have elected to attempt to remove, in each case, at or prior to the avoidance applicable Closing as adjourned in accordance with Section 4.4.3, Purchaser shall be deemed to have approved and irrevocably waived its objection to such New Exception, and such New Exception shall constitute a Permitted Exception, unless, subject to Section 2.5.2, Purchaser notifies Sellers in writing of doubtits election, within five (5) Business Days after the later of (i) receipt of Sellers’ written election not to Remove such New Exception or (ii) Sellers’ failure to Remove any Objected such New Exception shall not be deemed to constitute a breach of any covenant or warranty of any Seller under this Agreement. 4.5.4 If (A) the applicable Seller does not elect, pursuant to Section 4.5.3, to attempt to Remove any Objected New Exception, or are unable, prior to the Outside Closing Date, to Remove any Objected New Exception, or (B) such Seller does not elect, pursuant to Section 4.4, to attempt to remove any Other Monetary Lien which it is not obligated they have elected to Remove, under such Section 4.4, then Purchaser shall have the right, as its exclusive remedy, to elect to either (iy) designate the affected Facility as an Excluded Facility or (z) waive its objection to such Objected New Exception or Other Monetary Lien and proceed with the Transactions without a reduction in the Purchase Price, in which event Purchaser shall be deemed to have approved such Objected New Exception or Other Monetary Lien and such Objected New Exception or Other Monetary Lien shall constitute a Permitted Exception, or (ii) elect, by written notice to Sellers, to terminate this Agreement solely with respect to the applicable Property (which is subject to the applicable Objected New Exception or Other Monetary Lien) and, upon any such election, (a) this Agreement shall be deemed automatically terminated solely with respect to the applicable Property (and the applicable Property shall no longer constitute a “Property” for the purposes of this Agreement) effective as of Purchaser’s notice to Sellers of such election, (b) such Property shall be excluded from the property to be sold by Sellers to Purchaser at the Closing, (c) the Purchase Price payable by Purchaser at the Closing shall be reduced by an amount equal to the Allocated Purchase Price allocated to such Property as set forth on Schedule I and (d) all of Sellers’ representations, warranties, covenants, liabilities and obligations, and Purchaser’s rights, with respect to such Property shall be void and of no further force and effect (without limiting the respective rights and obligations of the parties with respect to the other Properties and except for matters which expressly survive the termination of this Agreement). 4.5.5 Notwithstanding the foregoing provisions of this Section 4.5, if the Closing occurs, Purchaser shall be deemed to have accepted any New Exception as a Permitted Exception and shall have no further rights or remedies with respect to such New Exception except as otherwise set forth in this Agreement.