Common use of Subsequent Changes Clause in Contracts

Subsequent Changes. Upon Buyer becoming aware of any fact which (a) would materially and adversely change the representations or warranties contained herein and (b) would constitute a breach thereof by Seller, Buyer, as its sole remedy, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence Expenses. Any such election shall be made by Buyer not later than five (5) business days from Buyer becoming aware of such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer’s termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day cure period. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.14, then Buyer shall be deemed to have elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.14, elected to acquire the Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything to the contrary herein, if any of the representations and warranties made by Seller in this Section 11 is no longer true and correct in any material respect as a result of any change in circumstances or occurrence of any event between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor or be deemed to be in default hereunder by reason thereof (provided that, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate this Agreement).

Subsequent Changes. Upon Buyer becoming aware Each of the foregoing representations and warranties of Seller shall be deemed remade as of Closing, subject to the following provisions of this Section 11.15 and other provisions of this Agreement. If after the Effective Date Seller obtains knowledge of any fact or circumstance which (a) would materially and adversely change one of its foregoing representations or warranties, then Seller will promptly give written notice of such changed fact or circumstance to Buyer. Upon Buyer receiving such written notice of any fact or circumstance which would materially and adversely change any of the representations or warranties contained herein and in this Section 11 or elsewhere in this Agreement or in any other document to be executed by Seller for the Closing (bcollectively, “Seller’s Representations”) or would otherwise constitute a breach thereof by SellerSeller and provided that such fact or circumstance was not contained in the Due Diligence Items or any other materials provided or made available to Buyer by Seller or received by Buyer from any third party (including without limitation any report provided to Buyer by any contractor or consultant engaged by Buyer in connection with ▇▇▇▇▇’s investigation of the Property), in each case on or prior to the Contingency Date, Buyer, as its sole remedyand exclusive remedy at law or in equity, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer, Buyer so long as Buyer is not then in breach or default under this Agreement (subject to any applicable notice and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence Expensescure period expressly set forth in this Agreement). Any such election shall be made by Buyer not later than five three (53) business days from Buyer becoming aware receiving such written notice. Notwithstanding the foregoing, if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such factelection from Buyer, provided that any election to elect by written notice to Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within matter prior to Closing (and for purposes of effectuating such cure Seller shall have the right to postpone the Closing Date for up to thirty (30) days following by written notice thereof delivered to Buyer and Escrow Holder on or prior to the delivery of Buyer’s termination noticethen-scheduled Closing Date). If Seller elects makes such foregoing election, then ▇▇▇▇▇’s original notice under clause (ii) above shall be deemed ▇▇▇▇▇’s election to cure any changed representation or warranty following a termination of not terminate this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two proceed pursuant to clause (2i) business days following the end of such 30-day cure periodabove. If Buyer does not so timely elect to terminate this Agreement pursuant to this Section 11.1411.15, then Buyer shall be deemed to have (i) irrevocably elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.15, (ii) elected to acquire the Property on the terms set forth in this Agreement, and (iii) waived all remedies at law or in equity with respect to any representations or warranties changed Seller’s Representations resulting from the facts or circumstances disclosed by Seller in its written notice to BuyerBuyer prior to Closing and Seller’s Representations shall be deemed to have been modified by all such disclosures. Notwithstanding anything Anything contained herein to the contrary hereinnotwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of the representations and warranties made by Seller in this Section 11 is no longer true and correct in any material respect Seller’s Representations, whether as a result of notice from Seller, ▇▇▇▇▇’s own investigations or inquiries or otherwise, or (y) any change information contained in circumstances the Due Diligence Items or occurrence any other materials provided or made available to Buyer by Seller or received by Buyer from any third party (including without limitation any report provided to Buyer by any contractor or consultant engaged by ▇▇▇▇▇ in connection with ▇▇▇▇▇’s investigation of the Property), in each case that is provided or made available to or received by Buyer on or before the date that is five (5) business days prior to the expiration of the Property Approval Period, is in any event between the Effective Date way inconsistent with any of Seller’s Representations, whether or not actually known to Buyer, and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing Date which is permitted under of the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to preventtransactions contemplated hereby, then Seller’s Representations shall be deemed qualified and amended or modified to the full extent of Buyer’s knowledge and such inconsistent information, Buyer shall be deemed to have accepted and approved Seller’s Representations as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall not have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer therefor for (except to the extent expressly elected by Seller pursuant to this Section 11.15), or be deemed to be in default hereunder under this Agreement by reason thereof (provided thatof, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such any breach of a representation or warranty made by Seller is no longer true if Buyer had knowledge thereof prior to Closing. The foregoing provisions of this Section 11.15 shall not serve to limit Buyer’s rights and correct as a result of any change in circumstances or occurrence of any event which is permitted remedies under the terms Section 16.1 of this Agreement with respect to any default by Seller under this Agreement (subject to any applicable notice and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate cure periods expressly set forth in this Agreement)) that also causes any of Seller’s Representations to no longer be accurate in any material respect.

Subsequent Changes. Upon If prior to Closing Buyer becoming aware becomes aware, by any means, of any fact or circumstance which (a) would materially and adversely change the evidences a material breach by Seller of its representations or warranties contained herein and (b) or would otherwise constitute a material breach thereof by Seller, which material breach will not be cured by the Closing Date, then Buyer, as its sole remedy, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller Buyer shall reimburse Buyer be responsible to pay for Buyer’s Due Diligence Expensescertain costs in accordance with the terms of Section 4.4 of this Agreement. Any such election shall be made by Buyer not later than five (5) business days from Buyer becoming aware of such fact; provided, provided however, that any if Buyer does not provide written notice of such election to Seller within such five (5) business day period, Buyer shall irrevocably be deemed to have elected to proceed under clause (i) above. Notwithstanding the foregoing, if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days following to effectuate such cure) and if such notice is provided within three (3) business days prior to the delivery of Buyer’s termination noticeClosing Date, the Closing Date shall automatically be extended for three (3) business days in order to allow Seller to make such election. If Seller elects makes such foregoing election and cures such matter, then ▇▇▇▇▇'s original notice under clause (ii) above shall be deemed Buyer's election to cure any changed representation or warranty following a termination of not terminate this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two proceed pursuant to clause (2i) business days following the end of such 30-day cure periodabove. If Buyer does not (or is deemed to not) so elect to terminate this Agreement pursuant to this Section 11.1411.9, then Buyer shall be deemed to have elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.9, elected to acquire the Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from warranties. If the facts changed fact or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything to the contrary herein, if circumstance does not materially and adversely change any of the representations and or warranties made by contained herein when made, Seller in this Section 11 is no longer true and correct in any material respect shall deliver to Buyer updated schedules, as a result of any change in circumstances or occurrence of any event between the Effective Date applicable, prior to Closing and the parties shall proceed to the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller terms hereof. Buyer shall not be liable to Buyer therefor or be deemed to be aware of all matters contained in default hereunder by reason thereof (provided that, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes Materials made available to Buyer, as of the date such election Due Diligence Materials are made available to terminate this Agreement)Buyer.

Subsequent Changes. Upon If Buyer becoming aware of any fact which has actual knowledge (a) would materially and adversely change the representations as opposed to constructive or warranties contained herein and (b) would constitute a breach thereof by Sellerimputed knowledge), Buyer, as its sole remedy, shall have the option of either (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.1411.12 below, terminating this Agreement, Agreement in which event (A) the Deposit accordance with Section 4.4 and any other funds deposited by Buyer into escrow with Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence ExpensesSection 11.12 below. Any such election shall be made by Buyer not later than five (5) business days from Buyer becoming aware obtaining actual knowledge of such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer’s 's termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30-day 30‑day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day 30‑day cure period. If Buyer does not so elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.12, then Buyer shall be deemed to have elected to waive its rights right to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.12, elected to acquire the Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice that have actually become known to Buyer. Notwithstanding anything to the contrary herein, if any of the representations and warranties made by In no event shall Seller in this Section 11 is no longer true and correct in any material respect as a result of any change in circumstances or occurrence of any event between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor for, or be deemed to be in default hereunder by reason thereof of, any breach of Seller’s representation or warranty which results from any change that (provided that, A) occurs between the Effective Date and the Closing Date and (B) (1) is permitted under the terms of this Agreement, (2) is beyond the reasonable control of Seller or (3) results from any act or omission of Buyer; provided, however, any breach of such Seller’s representation or warranty in any material respect (other than those that are permitted under the terms of this Agreement) shall, if such breach has a Material Adverse Effect and does not result from any act or omission of Buyer, constitute the non-fulfillment of the condition set forth in Section 4.3.2 and Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate this Agreement)11.12.

Subsequent Changes. If Seller becomes aware of any fact or circumstance prior to the Closing Date which would materially and adversely change one of its foregoing representations or warranties, then Seller will promptly give notice of such changed fact or circumstance to Buyer. Upon Buyer actually becoming aware of any fact which (a) would materially and adversely change any of the representations or warranties contained herein and (b) in this Section 11 or would otherwise constitute a breach thereof by Seller, Buyer, as its sole remedy, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence Expenses. Any such election shall be made by Buyer not later than the earlier of (A) five (5) business days from Buyer actually becoming aware of such factfact or (B) the Closing Date. Notwithstanding the foregoing, provided that any if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days following the delivery of Buyer’s termination noticeto effectuate such cure). If Seller elects makes such foregoing election and proceeds to actually cure any changed representation or warranty following a termination of such matter in the time required above, then Buyer's original notice under clause (ii) above shall be deemed Buyer's election to not terminate this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two proceed pursuant to clause (2i) business days following the end of such 30-day cure periodabove. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.1411.9, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.9, (ii) elected to acquire the Property on the terms set forth in this Agreement, and (iii) waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything Buyer or of which Buyer actually becomes aware prior to the contrary herein, if any of the Closing and Seller's representations and warranties made by Seller set forth in this Section 11 is no longer true and correct in any material respect as a result of any change in circumstances or occurrence of any event between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor or be deemed to be in default hereunder have been modified by reason thereof (provided thatall such disclosures. In no 753659.08/WLA 374981-00001/4-20-16/pjr/pjr -17- Agreement of Purchase and Sale [20333 South Normandie Avenue] [Bridge Acquisition, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate this Agreement).LLC]

Subsequent Changes. If Seller becomes aware of any fact or circumstance prior to the Closing Date which would materially and adversely change one of its foregoing representations or warranties, then Seller will promptly give notice of such changed fact or circumstance to Buyer. Upon Buyer actually becoming aware of any fact which (a) would materially and adversely change any of the representations or warranties contained herein and (b) in this Section 11 or would otherwise constitute a breach thereof by Seller, Buyer, as its sole remedy, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence Expenses. Any such election shall be made by Buyer not later than the earlier of (A) five (5) business days from Buyer actually becoming aware of such factfact or (B) the Closing Date. Notwithstanding the foregoing, provided that any if Buyer elects to proceed under clause (ii) above, Seller shall have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days following the delivery of Buyer’s termination noticeto effectuate such cure). If Seller elects makes such foregoing election and proceeds to actually cure any changed representation or warranty following a termination of such matter in the time required above, then Buyer's original notice under clause (ii) above shall be deemed Buyer's election to not terminate this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two proceed pursuant to clause (2i) business days following the end of such 30-day cure periodabove. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.1411.9, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.9, (ii) elected to acquire the Property on the terms set forth in this Agreement, and (iii) waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything Buyer or of which Buyer actually becomes aware prior to the contrary herein, if any of the Closing and Seller's representations and warranties made set forth in this Agreement shall be deemed to have been modified by all such disclosures. In no 753659.08/▇▇▇▇▇▇▇▇▇-00001/4-20-16/pjr/pjr -17- Agreement of Purchase and Sale[20333 South Normandie Avenue][Bridge Acquisition, LLC] event shall Seller be liable to Buyer for (except to the extent expressly elected by Seller in pursuant to this Section 11 is no longer true and correct 11.9, above), or be deemed to be in default under this Agreement by reason of, any material respect as breach of a result of representation or warranty that results from any change in circumstances or occurrence of any event that (i) occurs between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor or be deemed to be in default hereunder by reason thereof (provided that, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided hereinDate, and (2ii) Buyer shall is not be entitled due to receive reimbursement the voluntary or negligent acts or omissions of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate in violation of this Agreement).

Subsequent Changes. If after the Effective Date Seller obtains knowledge of any fact or circumstance which would materially and adversely change one of its foregoing representations or warranties, then Seller will promptly give notice of such changed fact or circumstance to Buyer. Upon Buyer becoming aware of any fact which (a) would materially and adversely change any of the representations or warranties contained herein in this Section 11, except for the representations and warranties in Section 11.5 (bother than with regard to any Lease with a Major Tenant, any monetary default (beyond applicable notice and cure periods), or an event of bankruptcy or insolvency proceeding), or elsewhere in this Agreement or in any Other Document (“Seller’s Representations”) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole remedyand exclusive remedy at law or in equity, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer; provided, and (B) however, if such material adverse change arose out of the willful act, or intentional failure to act, by Seller or another member of the Seller Group, the terms of Section 16.1 shall reimburse Buyer for Buyer’s Due Diligence Expensesapply. Any such election shall be made by Buyer not later than five (5) business days from the Closing Date; provided, however, if Buyer becoming becomes aware of such factfact from other than Seller, provided that any election by Buyer to terminate shall not be effective unless promptly notify Seller fails to cure such changed representation or warranty within thirty (30) days following thereof. Notwithstanding the delivery of Buyer’s termination notice. If Seller foregoing, if Buyer elects to cure any changed representation or warranty following a termination of this Agreement by Buyerproceed under clause (ii) above, and Seller shall have the end of such 30-day cure period extends beyond the Outside Closing Dateright, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day cure period. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.14, then Buyer shall be deemed to have elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.14, elected to acquire the Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything to sole discretion, within the contrary herein, if any earlier of the representations and warranties made by Seller in this Section 11 is no longer true and correct in any material respect as a result of any change in circumstances or occurrence of any event between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor or be deemed to be in default hereunder by reason thereof (provided that, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate this Agreement).three

Subsequent Changes. Upon Buyer becoming aware (whether by notice from Seller or otherwise) of any fact which (a) would materially and adversely change the representations or warranties contained herein and (b) would constitute a breach thereof by Seller, Buyer, as its sole remedy, shall have the option of either (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below terminating this Agreement in accordance with Section 4.4 and this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence Expenses11.7. Any such election shall be made by Buyer not later than five (5) business days from Buyer becoming aware of such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer’s termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day cure period. If Buyer does not so elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.7, then Buyer shall be deemed to have elected to waive its rights right to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.7, elected to acquire the Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything to the contrary herein, if any of the representations and warranties made by In no event shall Seller in this Section 11 is no longer true and correct in any material respect as a result of any change in circumstances or occurrence of any event between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor for, or be deemed to be in default hereunder by reason thereof of, any breach of Seller’s representation or warranty which results from any change that (provided that, A) occurs between the Effective Date and the Closing Date and (B) (1) is permitted under the terms of this Agreement, (2) is beyond the reasonable control of Seller or (3) results from any act or omission of Buyer; provided, however, any breach of such Seller’s representation or warranty in any material respect (other than those that are permitted under the terms of this Agreement) shall constitute the non-fulfillment of the condition set forth in Section 4.3.3 and Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate this Agreement)11.7.

Subsequent Changes. If, after the Effective Date, Seller obtains knowledge of any fact or circumstance which would “materially and adversely,” as defined below, change one of its foregoing representations or warranties, then Seller will promptly give notice of each changed fact or circumstance to Buyer. For purposes of this Section 11.10, “materially and adversely” shall mean any matter or matters that relates to any of the representations or warranties made in this Section 11 could reasonably be expected to result in damages of and/or decrease the value of the Property by more than [***] Dollars ($[***]). Upon Buyer becoming aware of any each fact which (a) would materially and adversely change any of the representations or warranties contained herein and in this Section 11 or elsewhere in this Agreement or in any Other Document (b“Seller’s Representations”) or would otherwise constitute a breach thereof by Seller, Buyer, as its sole remedyand exclusive remedy at law or in equity, shall on each occasion have the option of (i) waiving the each such breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer, and (B) Seller shall reimburse Buyer for Buyer’s Due Diligence Expenses. Any such Each election shall be made by Buyer not later than five (5) business days from Buyer actually becoming aware of such each fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer’s termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day cure period. If Buyer does not so timely elect to terminate this Agreement pursuant to this Section 11.1411.10 on account of such breach of warranty or change, then Buyer shall be deemed to have (a) irrevocably elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.10 on account of such breach of warranty or change, (b) elected to acquire the Property on the terms set forth in this Agreement, and (c) waived all remedies at law or in equity with respect to any representations or warranties resulting from the such facts or circumstances disclosed by Seller in its notice to BuyerBuyer or of which Buyer becomes aware prior to Closing, and Seller’s representations and warranties set forth in this Agreement shall be deemed to have been modified by all such disclosures. Notwithstanding anything Anything contained herein to the contrary hereinnotwithstanding, if (x) Buyer has actual knowledge of any inaccuracy in any of the Seller’s representations and warranties made by Seller in this Section 11 is no longer true and correct contained herein or in any material respect Other Document, whether as a result of notice from Seller, Buyer’s own investigations or inquiries or otherwise, or (y) any change information contained in circumstances any material posted in Seller’s online diligence room or occurrence otherwise delivered electronically from Seller to Buyer is in any way inconsistent with any of any event between the Effective Date Seller’s Representations (and therefore Buyer has deemed knowledge of such inconsistent -24- ▇▇▇▇▇▇ Realty, L.P. - Purchase Agreement Santa Fe Summit information), and notwithstanding clause (x) and clause (y) Buyer nonetheless proceeds with the Closing Date which is permitted under of the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to preventtransactions contemplated hereby, then Seller’s representations and warranties shall be deemed qualified and amended or modified to the full extent of Buyer’s actual or deemed knowledge, Buyer shall be deemed to have accepted and approved Seller’s representations and warranties as so qualified and amended or modified, and Buyer shall have no right or remedy, and Seller shall not have no obligation or liability, on account thereof. In no event shall Seller be liable to Buyer therefor for (except to the extent expressly elected by Seller pursuant to this Section 11.10, above), or be deemed to be in default hereunder under this Agreement by reason thereof (provided thatof, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such any breach of a representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election had actual or deemed knowledge thereof prior to terminate this Agreement)Closing.

Subsequent Changes. Upon Buyer becoming If Seller becomes aware of any fact or circumstance which (a) would materially and adversely change the one of its foregoing representations or warranties, then Seller will promptly give notice of such changed fact or circumstance to Buyer. Upon Buyer becoming aware, by any means, of any fact or circumstance which evidences a material breach by Seller of its representations or warranties contained herein and (b) or would otherwise constitute a material breach thereof by Seller, Buyer shall so notify Seller and if as of the Closing Date such material breach is still outstanding, then Buyer, as its sole remedy, shall have the option of (i) waiving the breach of warranty or change, and proceeding with the Close of Escrow, or (ii) subject to the provisions below in this Section 11.14, terminating this Agreement, in which event (A) the Deposit and any other funds deposited by Buyer into escrow with the Escrow Holder and all interest earned thereon shall be returned to Buyer, and Buyer shall be responsible to pay for certain costs in accordance with the terms of Section 4.4 of this Agreement. Notwithstanding the foregoing, if Buyer elects to proceed under clause (Bii) above, Seller shall reimburse have the right, in its sole discretion, within three (3) business days following receipt of such election from Buyer, to elect by written notice to Buyer to cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (30) days to effectuate such cure), and if Seller completes such cure prior to Closing, Buyer’s Due Diligence Expenses's termination notice under clause (ii) above shall be nullified. Any such election shall be made by Buyer not later than five (5) business days from Buyer becoming aware of such fact, provided that any election by Buyer to terminate shall not be effective unless Seller fails to cure such changed representation or warranty within thirty (30) days following the delivery of Buyer’s termination notice. If Seller elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such 30-day cure period extends beyond the Outside Closing Date, then the Outside Closing Date shall be extended by two (2) business days following the end of such 30-day cure period. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.1411.6, then Buyer shall be deemed to have elected to waive its rights to terminate this Agreement pursuant to Section 4.4 and this Section 11.1411.6, elected to acquire the Property on the terms set forth in this Agreement, and waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances known to Buyer. If the changed fact or circumstance does not evidence a material breach by Seller of its representations or warranties contained herein when made, Seller shall deliver to Buyer updated schedules, as applicable, prior to Closing and the parties shall proceed to the Closing in accordance with the terms hereof. Notwithstanding the foregoing, if Seller's notice to Buyer pursuant to this Section 11.6 relates to any of the following changed facts or circumstances, Buyer shall not have the right to terminate this Agreement as a result of such notice and Buyer shall be deemed to have waived all remedies at law or in equity with respect to any representations or warranties resulting from the facts or circumstances disclosed by Seller in its notice to Buyer. Notwithstanding anything to the contrary herein, if such notice: any of the representations and warranties made default by Seller in this Section 11 is no longer true and correct in any material respect as a result of vendor under any change in circumstances or occurrence of any event between the Effective Date and the Closing Date which is permitted under the terms of this Agreement (for instance, any action taken by Seller in accordance with Section 9 above) or is beyond the reasonable control of Seller to prevent, then Seller shall not be liable to Buyer therefor or be deemed to be in default hereunder by reason thereof (provided that, (1) Buyer may elect to terminate this Agreement pursuant to Section 4.4 and this Section 11.14 unless such representation or warranty made by Seller is no longer true and correct as a result of any change in circumstances or occurrence of any event which is permitted under the terms of this Agreement and is approved by Buyer as provided herein, and (2) Buyer shall not be entitled to receive reimbursement of Buyer’s Due Diligence Expenses from Seller if Buyer makes such election to terminate this Agreement)Contract.