Common use of Subsequent Changes Clause in Contracts

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 would materially and adversely change any of the representations or warranties contained 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) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer. 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 fact or (B) the Closing Date. 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 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). If Seller makes such foregoing election and proceeds to actually cure 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 and proceed pursuant to clause (i) above. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.9, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to this Section 11.9, (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 or of which Buyer actually 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. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date, and (ii) is not due to the voluntary or negligent acts or omissions of Seller in violation of this Agreement.

Subsequent Changes. If Seller prior to Closing Buyer becomes aware aware, by any means, of any fact or circumstance prior to the Closing Date which would materially and adversely change one evidences a material breach by Seller 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 would materially and adversely change any of the representations or warranties contained in this Section 11 herein 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) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow 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. 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 fact or fact; provided, however, that if Buyer does not provide written notice of such election to Seller within such five (B5) the Closing Datebusiness 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 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 such notice is provided within three (3) business days prior to the Closing Date, the Closing Date shall automatically be extended for three (3) business days in order to allow Seller to make such election. If Seller makes such foregoing election and proceeds to actually cure cures such matter in the time required abovematter, then BuyerXxxxx's original notice under clause (ii) above shall be deemed Buyer's election to not terminate this Agreement and proceed pursuant to clause (i) above. If Buyer does not (or is deemed to not) so elect to terminate this Agreement pursuant to this Section 11.9, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to this Section 11.9, (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. If the changed fact or circumstance does not materially and adversely change any of the representations or warranties resulting from the facts or circumstances disclosed by contained herein when made, Seller in its notice shall deliver to Buyer or of which Buyer actually becomes aware updated schedules, as applicable, prior to Closing and Seller's representations and warranties set forth the parties shall proceed to the Closing in this Agreement accordance with the terms hereof. Buyer shall be deemed to have been modified by be aware of all matters contained in the Due Diligence Materials made available to Buyer, as of the date such disclosures. In no 753659.08/XXX000000-00001/4-20-16/pjr/pjr -17- Agreement of Purchase and Sale[20333 South Normandie Avenue][Bridge Acquisition, LLC] event shall Seller be liable Due Diligence Materials are made available to Buyer for (except to the extent expressly elected by Seller pursuant to this Section 11.9, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date, and (ii) is not due to the voluntary or negligent acts or omissions of Seller in violation of this AgreementBuyer.

Subsequent Changes. If Seller BCSP and/or Owner becomes aware of any fact or circumstance prior to the Closing Date which would materially and adversely change one of its foregoing representations or warrantiesExpress Representations set forth in Section 5.1 above, then Seller will promptly BCSP and/or Owner shall give notice of such changed fact or circumstance to BuyerInvestor. Upon Buyer actually becoming aware If Investor has or obtains knowledge of any fact which would materially and adversely change any of the representations or warranties Express Representations contained in this Section 11 herein or would otherwise constitute a breach thereof by SellerBCSP and/or Owner, Buyerand provided that such fact was not included in the Property Information prior to the Effective Date and Investor did not know, or was not deemed to know, such fact prior to the Effective Date, Investor, 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) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to BuyerInvestor. Any such election shall be made by Buyer Investor not later than the earlier to occur of (Ai) five (5) business days from Buyer actually Investor becoming aware of such fact fact, or (Bii) the Closing Date. 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 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). If Seller makes such foregoing election and proceeds to actually cure 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 and proceed pursuant to clause (i) above. If Buyer Investor does not so elect to terminate this Agreement pursuant to this Section 11.95.4, then Buyer Investor shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to this Section 11.95.4, (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 BCSP and/or Owner in its notice to Buyer Investor. For purposes of this Agreement, the “ knowledge” or “actual knowledge” of which Buyer actually becomes aware prior to Closing Investor shall mean the receipt by Alex Vouvalides or Xxxxxxxxxxx Xxxxxx of a written document containing such fact or circumstance and Seller's representations and warranties set forth any information or materials included in this Agreement shall be deemed to have been modified by all such disclosuresthe Property Information. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Datebe extended beyond the Outside Closing Date for any reason without the express written agreement of BCSP, in BCSP’s sole and (ii) is not due to the voluntary or negligent acts or omissions of Seller in violation of this Agreementabsolute discretion.

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 aware, by any means, of any fact or circumstance which would materially and adversely change any evidences a material breach by Seller of the its representations or warranties contained in this Section 11 herein 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) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer. Any such election , and Buyer shall be made by Buyer not later than responsible to pay for certain costs in accordance with the earlier terms of (A) five (5) business days from Buyer actually becoming aware Section 4.4 of such fact or (B) the Closing Datethis Agreement. 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 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). If , and if Seller makes completes such foregoing election and proceeds cure prior to actually cure such matter in the time required aboveClosing, then Buyer's original termination notice under clause (ii) above shall be deemed Buyer's nullified. Any such election to shall be made by Buyer not terminate this Agreement and proceed pursuant to clause later than five (i5) abovebusiness days from Buyer becoming aware of such fact. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.911.6, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to this Section 11.911.6, (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 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 or of which Buyer actually becomes aware prior to Closing and Seller's representations and warranties set forth in this Agreement shall be deemed to have been modified such notice: any default by all such disclosures. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above), or be deemed to be in default any vendor under this Agreement by reason of, any breach of a representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date, and (ii) is not due to the voluntary or negligent acts or omissions of Seller in violation of this AgreementContract.

Subsequent Changes. If Upon Buyer becoming aware (whether by notice from Seller becomes aware or otherwise) of any fact or circumstance prior to the Closing Date which (a) 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 would materially and adversely change any of the representations or warranties contained in this Section 11 or herein and (b) would otherwise 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) terminating this Agreement, Agreement in which event the Deposit accordance with Section 4.4 and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyerthis Section 11.7. 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 fact or (B) the Closing Date. Notwithstanding the foregoingfact, if provided that any election by Buyer elects to proceed under clause (ii) above, terminate shall not be effective unless 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 fails to cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to changed representation or warranty within thirty (30) days to effectuate such cure)following the delivery of Buyer’s termination notice. If Seller makes elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such foregoing election and proceeds to actually 30-day cure such matter in period extends beyond the time required aboveOutside Closing Date, then Buyer's original notice under clause (ii) above the Outside Closing Date shall be deemed Buyer's election to not terminate this Agreement and proceed pursuant to clause extended by two (i2) abovebusiness 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 11.911.7, then Buyer shall be deemed to have (i) elected to waive its rights right to terminate this Agreement pursuant to Section 4.4 and this Section 11.911.7, (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 or of which Buyer actually 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 disclosuresBuyer. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above)for, or be deemed to be in default under this Agreement hereunder by reason of, any breach of a Seller’s representation or warranty that which results from any change that (iA) occurs between the Effective Date and the Closing Date, Date and (iiB) (1) is not due to permitted under the voluntary or negligent acts or omissions of Seller in violation 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 11.7.

Subsequent Changes. If If, after Effective Date, Seller first becomes aware of any fact or circumstance prior to the Closing Date which would materially and adversely change one result in any of its foregoing representations or warrantieswarranties contained herein being untrue or incorrect, then Seller will promptly give notice of such changed fact or circumstance to Buyer. Upon Buyer becoming actually becoming aware of any fact or circumstance which would materially and adversely change any result in a breach of the one of Seller's representations or warranties contained in this Section 11 or would otherwise constitute a breach thereof by Sellerherein, Buyer, as its sole remedy, shall have the option of (i) waiving the breach of the representation or warranty or change, and proceeding with the Close of Escrow, or (ii) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to BuyerBuyer and, if (x) the representation and warranty was untrue when made as of the Effective Date, or (y) the failure of such representation and warranty to be true also constitutes, or was otherwise caused, a breach by Seller of any of its obligations under this Agreement (e.g., prior to the Effective Date, Seller had received written notice of an uncured release of Hazardous Substances under the Property and failed to include such notice in the Due Diligence Documents) or was otherwise caused by the affirmative acts or omissions of Seller in violation of a specific obligation expressly set forth in this Agreement, then Buyer may also pursue its remedies under Section 16.1 hereof. Any such election shall be made by Buyer not later than the earlier to occur of the Scheduled Closing Date or the date which is seven (A) five (5) business days from Buyer actually becoming aware of such fact or (B) the Closing Date. 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 cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to thirty (307) days to effectuate such cure). If Seller makes such foregoing election after the expiration of the notice and proceeds to actually cure such matter period set forth 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 and proceed pursuant to clause (i) aboveSection 16.5 below. If Buyer does not so timely elect to terminate this Agreement pursuant to this Section 11.911.2, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to this Section 11.9by reason of the existence of such fact or circumstance, (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 or of which Buyer actually 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. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date, and (ii) is not due to the voluntary or negligent acts or omissions of Seller in violation of this AgreementBuyer.

Subsequent Changes. If after the Effective Date Seller becomes aware obtains knowledge 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 would materially and adversely change any of the representations or warranties contained in this Section 11 11, except for the representations and warranties in Section 11.5 (other 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) terminating this Agreement, in which event the Deposit and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to Buyer; provided, 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 apply. Any such election shall be made by Buyer not later than the earlier of (A) five (5) business days from Closing Date; provided, however, if Buyer actually becoming becomes aware of such fact or (B) the Closing Datefrom other than Seller, Buyer shall promptly notify Seller thereof. 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 the earlier 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). If Seller makes such foregoing election and proceeds to actually cure 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 and proceed pursuant to clause (i) above. If Buyer does not so elect to terminate this Agreement pursuant to this Section 11.9, then Buyer shall be deemed to have (i) elected to waive its rights to terminate this Agreement pursuant to this Section 11.9, (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 or of which Buyer actually 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. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above), or be deemed to be in default under this Agreement by reason of, any breach of a representation or warranty that results from any change that (i) occurs between the Effective Date and the Closing Date, and (ii) is not due to the voluntary or negligent acts or omissions of Seller in violation of this Agreement.three

Subsequent Changes. If Seller becomes aware of any fact Buyer has actual knowledge (as opposed to constructive 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 would materially and adversely change any of the representations or warranties contained in this Section 11 or would otherwise 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 in Section 11.12 below, terminating this Agreement, Agreement in which event the Deposit accordance with Section 4.4 and any other funds deposited by Buyer into the Escrow and all interest earned thereon shall be returned to BuyerSection 11.12 below. Any such election shall be made by Buyer not later than the earlier of (A) five (5) business days from Buyer actually becoming aware obtaining actual knowledge of such fact or (B) the Closing Date. Notwithstanding the foregoingfact, if provided that any election by Buyer elects to proceed under clause (ii) above, terminate shall not be effective unless 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 fails to cure such matter prior to Closing (and Seller shall have the right to delay the Closing for up to changed representation or warranty within thirty (30) days to effectuate such cure)following the delivery of Buyer's termination notice. If Seller makes elects to cure any changed representation or warranty following a termination of this Agreement by Buyer, and the end of such foregoing election and proceeds to actually 30‑day cure such matter in period extends beyond the time required aboveOutside Closing Date, then Buyer's original notice under clause (ii) above the Outside Closing Date shall be deemed Buyer's election to not terminate this Agreement and proceed pursuant to clause extended by two (i2) abovebusiness 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 11.911.12, then Buyer shall be deemed to have (i) elected to waive its rights right to terminate this Agreement pursuant to Section 4.4 and this Section 11.911.12, (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 that have actually become known to Buyer or of which Buyer actually 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 disclosuresBuyer. In no 753659.08/XXX000000-00001/4-20-16/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 pursuant to this Section 11.9, above)for, or be deemed to be in default under this Agreement hereunder by reason of, any breach of a Seller’s representation or warranty that which results from any change that (iA) occurs between the Effective Date and the Closing Date, Date and (iiB) (1) is not due to permitted under the voluntary or negligent acts or omissions of Seller in violation 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 11.12.