Common use of Title Defects Clause in Contracts

Title Defects. If the Title Commitment, the Lien Searches or the Survey, or any update of the Title Commitment, the Lien Searches or the Survey, at any time discloses exceptions to title or any Defects other than Permitted Exceptions, Purchaser shall so notify Seller in writing (a "DISAPPROVAL NOTICE") on or before the end of the Inspection Period. Unless Purchaser sends such a Disapproval Notice within such time period, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by the payment of money, including, without limitation, judgment and mechanics' liens, to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser in writing within ten (10) days after receipt of the Disapproval Notice whether Seller will cause all or any of such other Defects to be removed or cured at or prior to Closing, and Seller shall be deemed to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day period. If Seller elects not to remove or cure all Defects, Purchaser may elect, in its sole discretion, (i) subject to satisfaction of the other conditions to Closing, to close the purchase of the Property, taking a deduction from the Purchase Price in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cure, or (ii) to terminate this Agreement, in which event the Earnxxx Xxxey and all interest accrued thereon shall be immediately returned to Purchaser. If Seller elects to cure or remove any Defect, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days to remove or cure any Defect that it has elected to remove or cure (or deemed to have elected to remove or cure). The Closing Date shall be extended as necessary to permit the parties to exercise their respective rights and obligations pursuant to this Section 3.2.

Title Defects. If the Title CommitmentThe Premises shall be conveyed by standard warranty deed, subject to easements and restrictions now of record, the Lien Searches rights of the public in all streets and roads abutting the Premises, liens for unpaid property taxes first coming due and payable after the Commencement Date, and zoning and such other matters created by Tenant or arising out of Tenant's use and occupancy of the SurveyPremises (the "Permitted Exceptions"), but free and clear of the lien of any mortgage, deed of trust, or security interest created by or resulting from acts of the Landlord, any successor of Landlord, any party claiming through Landlord, or any update other person, without the express consent of Tenant. Landlord shall, within fifteen (15) days after delivery of the Title CommitmentPurchase Option Notice to Landlord or delivery of the Sale Option Notice to Tenant, whichever is applicable, obtain and deliver to Tenant a commitment for an ALTA owners form of title insurance, without standard exceptions, in the Lien Searches or amount of the SurveyPurchase Price. Within fifteen (15) days thereafter, at any time discloses exceptions to title or any Defects other than Permitted Exceptions, Purchaser Tenant shall so notify Seller Landlord in writing of any claimed defect in title. Within thirty (a "DISAPPROVAL NOTICE") on or before the end of the Inspection Period. Unless Purchaser sends such a Disapproval Notice within such time period, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by the payment of money, including, without limitation, judgment and mechanics' liens, to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser in writing within ten (1030) days after receipt of the Disapproval Notice such notice, Landlord shall notify Tenant of Landlord's election whether Seller will cause or not to cure any or all or any of such other Defects to be removed or cured at or prior to Closing, and Seller defects. In the event that Landlord shall be deemed unable or unwilling to cure any such claimed defects, Tenant shall have elected the option to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day period. If Seller elects not to remove or cure all Defects, Purchaser may elect, in its sole discretion, (i) accept title to the Premises subject to satisfaction of the other conditions to Closingsuch claimed defects, to close the purchase of the Property, taking with a deduction from credit against the Purchase Price in the an amount necessary to cure discharge any lien against the monetary liens premises, the amount of a fixed or ascertainable amount that may be removed by the payment which is liquidated as of money which Seller has not bonded closing, (including interest and insured over, and to take title subject penalties thereon accrued to the other Defects noted in the Disapproval Notice that Seller elects date of closing) which is not to remove or curea Permitted Exception, or (ii) terminate and rescind the exercise of the Purchase Option or the Sale Option, whichever is applicable, without any liability to terminate this AgreementLandlord, in which event the Earnxxx Xxxey and all interest accrued thereon shall be immediately returned Tenant's right to Purchaser. If Seller elects exercise such Purchase Option and Landlord's right to cure or remove any Defect, then Seller exercise such Sale Option thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days to remove or cure any Defect that it has elected to remove or cure (or deemed to have elected to remove or cure). The Closing Date shall be extended as necessary to permit the parties to exercise their respective rights and obligations pursuant to this Section 3.2terminated.

Title Defects. If the any Title CommitmentCommitment or Survey discloses any (i) mortgages, the Lien Searches or the Surveydeeds of trust, financing statements, judgments, mechanic's liens, materialmen's liens, tax liens, or any update of similar monetary liens, (ii) material encroachments, or (iii) other title exceptions or defects that materially and adversely affect the Title Commitment, the Lien Searches future use or the Survey, at any time discloses exceptions to title or any Defects other than Permitted Exceptions, Purchaser shall so notify Seller in writing (a "DISAPPROVAL NOTICE") on or before the end of the Inspection Period. Unless Purchaser sends such a Disapproval Notice within such time period, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens operation of a fixed or ascertainable amount that may be removed by the payment of moneyProperty as a Sears brand retail store, including, without limitation, judgment the sale of consumables and mechanics' lienstransactional merchandise (a "MATERIAL TITLE DEFECT"), Purchaser shall use commercially reasonable efforts to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser Seller in writing of such Material Title Defect within ten (10) days after Purchaser's receipt of a Title Commitment and Survey for a Property, but in no event later than forty five (45) days after the Disapproval Notice whether Seller will cause all or any of such other Defects to be removed or cured at or prior to ClosingEffective Date (the "TITLE REVIEW PERIOD"), and Seller shall be deemed to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day perioddays from the receipt of Purchaser's notice ("SELLER'S TITLE CURE ELECTION PERIOD") to elect whether to have the Material Title Defect removed or cured (or to commit to do the same), to the reasonable satisfaction of Purchaser. If In the event Seller elects elects, within Seller's Title Cure Election Period, not to remove or cure all Defectssuch Material Title Defect, Purchaser may electshall have the option, in its sole discretionwithin ten (10) days after the expiration of Seller's Title Cure Election Period, to either (i) subject waive such Material Title Defect and proceed to satisfaction of the other conditions to Closing, to close the purchase of the Property, taking a deduction from the Purchase Price Closing for such Property in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cureaccordance with this Agreement, or (ii) elect not to terminate this Agreementacquire such Property and related Transferred Assets, in which event the Earnxxx Xxxey and all interest accrued thereon Property Termination Procedure shall be immediately returned to Purchaserapply. If In the event Seller elects to cure or remove any Defectelects, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days within Seller's Title Cure Election Period, to remove or cure any Defect that it has elected such Material Title Defect, Seller shall be entitled to a period ending on the later of (1) 30 days after the expiration of Seller's Title Cure Election Period, or (2) the Closing Date with respect to such Property, to remove or cure (such Material Title Defect, upon which removal or deemed to have elected to remove or cure). The Closing Date shall be extended as necessary to permit cure the parties shall proceed to exercise their respective rights Closing for such Property in accordance with this Agreement. Any liens, encumbrances, title defects or other title exceptions disclosed in any Title Commitment or Survey and obligations which do not constitute Material Title Defects (and any Material Title Defects which Purchaser elects to waive pursuant to this Section 3.26.2), shall be referred to herein as the "PERMITTED EXCEPTIONS". Notwithstanding the foregoing, Seller shall cause to be removed and discharged of record prior to Closing (i) any lien encumbering the Property and securing money borrowed by Seller, and (ii) any mechanic's lien, judgment lien or other lien securing a liquidated sum relating to work performed by or on behalf of Seller or otherwise required to be removed by Seller pursuant to the applicable Lease for such Property, provided that Seller shall not be required to remove or discharge at Closing any bona fide mechanic's liens, judgment liens or other liens (excluding judgment liens relating to non-appealable judgments) encumbering the Property and described in this clause (ii) if the aggregate amount of such liens exceeds five percent (5%) of the Purchase Price allocated to such Property, and if Seller so elects not to remove and discharge such liens at Closing pursuant to this proviso, then Purchaser shall have the same rights (as set forth in the second sentence of this Section 6.2) as if Seller shall have elected not to cure a Material Title Defect, except that if Purchaser elects to waive such Material Title Defect and to proceed to Closing, the Purchase Price allocated to such Property shall be reduced by five percent (5%).

Title Defects. If (1) the Title CommitmentCommitment shows that Seller does not have recordable, marketable, and indefeasible title to the Lien Searches Property in fee simple subject only to the Permitted Exceptions; or if (2) the Title Commitment or the SurveySurvey shows that the Property is subject to any title defects, liens, encumbrances, easements, rights-of-way, covenants, reservations or any update of the Title Commitment, the Lien Searches or the Survey, at any time discloses exceptions to title or any Defects restrictions other than Permitted ExceptionsExceptions and mortgages or other monetary liens which Seller agrees Seller will cause to be discharged or canceled at the time of Closing; or if (3) the Survey discloses conditions which are not in conformity with the criteria set forth in the preceding paragraph; or if (4) Purchaser determines that any utility easements or other matters will have an adverse affect upon the ability to fully use the Property for the Project (all of the foregoing being collectively called “Title Defects” or individually, a “Title Defect”), then Purchaser shall so notify give Seller in writing (a "DISAPPROVAL NOTICE") written notice thereof on or before the end of the Inspection Period. Unless Purchaser sends such a Disapproval Notice within such time period, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by the payment of money, including, without limitation, judgment and mechanics' liens, to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and forty-fifth (b45th) notify Purchaser in writing within day after the date of this Agreement. On or before ten (10) days after Seller’s receipt of the Disapproval Notice written notice of any Title Defect, Seller shall notify Purchaser in writing whether or not Seller will cause all or intends to cure such Title Defect. If Seller notifies Purchaser in writing that Seller intends to cure any of such other Defects to be removed or cured Title Defect, then Seller shall do so at or its expense prior to Closing, and . If Seller shall be deemed to have elected notifies Purchaser in writing that Seller is unwilling or unable to remove any Title Defect, then Purchaser may, at its option, (i) agree to waive such defects and proceed to close the purchase of the Property as-is; or cure all other Defects by Closing if Seller does not notify Purchaser (ii) terminate this Agreement, such notice to the contrary be given in writing within such five (5) days after expiration of said ten (10) day period. If Seller elects not fails to remove respond to the Title Defect in writing within the specified time period, then Seller shall be deemed to have notified Purchaser that it is unwilling or unable to cure all Defects, the Title Defect and Purchaser may elect, shall have the same options described in its sole discretion, the immediately preceding sentence. Purchaser shall elect option (i) subject to satisfaction of the other conditions to Closing, to close the purchase of the Property, taking a deduction from the Purchase Price in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cure, or (ii) above by written notice to terminate this AgreementSeller. If Purchaser fails to elect either option as provided herein, in which event the Earnxxx Xxxey and all interest accrued thereon Purchaser shall be immediately returned to Purchaser. If Seller elects to cure or remove any Defect, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days to remove or cure any Defect that it has elected to remove or cure (or deemed to have elected to remove or cureoption (i). The Closing Date If Purchaser terminates this Agreement pursuant to provisions of this sub-paragraph, Seller shall refund the Refundable Deposit (and the Extension Fee (hereafter defined), if applicable) to Purchaser free and clear of all claims of Seller, and both parties shall be extended as necessary to permit the parties to exercise their respective rights and released from all further obligations pursuant to this Section 3.2hereunder.

Title Defects. If the any Title CommitmentCommitment or Survey discloses any (i) mortgages, the Lien Searches or the Surveydeeds of trust, financing statements, judgments, mechanic's liens, materialmen's liens, tax liens, or any update of the Title Commitmentsimilar monetary liens, the Lien Searches or the Survey, at any time discloses exceptions to title or any Defects other than Permitted Exceptionsthose listed on Schedule 6.6 hereto, Purchaser or (ii) other title exceptions or defects that materially and adversely affect the Contemplated Business of a Property or can be cured or removed by the payment of a liquidated sum of money (not to exceed $5,000,000) (collectively, "MATERIAL TITLE DEFECTS"), Empire shall so notify Seller Transferor in writing of such Material Title Defect within ten (10) business days after Empire's receipt of a Title Commitment and Survey for a Property (the "DISAPPROVAL NOTICETITLE REVIEW PERIOD"), and Transferor shall have ten (10) days from the receipt of Empire's notice ("TRANSFEROR'S TITLE CURE ELECTION PERIOD") on to elect whether to have the Material Title Defect removed or before cured, to the end reasonable satisfaction of Empire. In the Inspection Period. Unless Purchaser sends event Transferor fails to make such a Disapproval Notice within such time periodelection, Purchaser Transferor shall be deemed to have approved elected not to cure the Material Title CommitmentDefects. In the event Transferor elects, Lien Searcheswithin Transferor's Title Cure Election Period, and Survey. With respect not to any Defects noted in a Disapproval Noticeremove or cure such Material Title Defect, Seller Empire shall (a) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by have the payment of moneyoption, including, without limitation, judgment and mechanics' liens, to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser in writing within ten (10) days after receipt the expiration of the Disapproval Notice whether Seller will cause all or any of such other Defects Transferor's Title Cure Election Period, to be removed or cured at or prior to Closing, and Seller shall be deemed to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day period. If Seller elects not to remove or cure all Defects, Purchaser may elect, in its sole discretion, either (i) subject waive such Material Title Defect and proceed to satisfaction of Closing for the other conditions to Closing, to close the purchase of the Property, taking a deduction from the Purchase Price Properties in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cureaccordance with this Agreement, or (ii) elect not to acquire the Properties and terminate this Agreement. If Empire fails to so elect, in which event the Earnxxx Xxxey and all interest accrued thereon Empire shall be immediately returned deemed to Purchaserwaive the Material Title Defects. If Seller elects to cure or remove any DefectIn the event Transferor elects, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days within Transferor's Title Cure Election Period, to remove or cure any Defect that it has elected such Material Title Defect, Transferor shall be entitled to a period ending on the later of (1) 45 days after the expiration of Transferor's Title Cure Election Period, or (2) the 10 days prior to Closing Date, to remove or cure such Material Title Defect, upon which removal or cure the parties shall proceed to Closing in accordance with this Agreement. Such cure or removal shall be a condition to Empire's obligation to proceed to Closing. Any liens, encumbrances, title defects or other title exceptions disclosed in any Title Commitment or Survey and which do not constitute Material Title Defects (or and any Material Title Defects which Empire elects to waive pursuant to this SECTION 6.3), shall be deemed to have elected be Permitted Exceptions. Notwithstanding the foregoing, Transferor shall cause to be removed and discharged of record (including by bonding) prior to Closing (i) any Lien encumbering the Properties securing money borrowed by Transferor or removable by the payment of a liquidated monetary sum, other than the Empire Payment Obligations, (ii) any judgment lien or other lien securing a liquidated sum, provided that Transferor shall not be required to remove or cure). The discharge at Closing Date shall be extended as necessary any judgment liens or other liens (excluding judgment liens relating to permit non-appealable judgments) encumbering the parties Properties and described in this clause (ii) if the aggregate amount of such Liens exceeds $5,000,000, and if Transferor so elects not to exercise their respective rights remove and obligations discharge such Liens at Closing pursuant to this Section 3.2proviso, then Empire shall have the same rights (as set forth in the second sentence of this SECTION 6.3) as if Transferor shall have elected not to cure a Material Title Defect. Such cure or removal shall be a condition to Empire's obligation to proceed to Closing.

Title Defects. If the Title Commitment or Survey discloses with respect to the Property, exceptions to title or other matters unacceptable to Purchaser in its sole discretion (the “Unacceptable Title Matters”), Purchaser shall notify Seller of any Unacceptable Title Matter related to the Property on or before the date which is twenty (20) business days after the Purchaser receives both the Title Commitment (and complete copies of the documents of record disclosed by the Title Commitment, ) and Survey (such twenty (20) business day period from the Lien Searches or the Survey, or any update final delivery to Purchaser of the Title Commitment, copies of documents of record and Survey being hereinafter referred to as the Lien Searches or “Title Review Period” for the SurveyProperty, provided such notice shall be delivered to Seller, if at any time discloses exceptions all, no later than five (5) business days prior to title or any Defects other than Permitted Exceptions, Purchaser shall so notify Seller in writing (a "DISAPPROVAL NOTICE") on or before the end of the Inspection Due Diligence Period), and Seller shall have ten (10) business days from the date of such notice to have each such Unacceptable Title Matter removed (without any obligation to do so, except Seller will be obligated to remove at Closing any monetary liens encumbering the Property), or, to attempt to have the Title Insurer commit to insure over such Unacceptable Title Matter, in a manner reasonably acceptable to Purchaser (provided if the Title Insurer fails to insure over such Unacceptable Title Matter, Purchaser may terminate this Agreement, and as its sole remedy receive a refund of the Exxxxxx Money), or to correct each such other matter, in each case to the reasonable satisfaction of Purchaser. Unless If within the time specified, Seller fails to have each such Unacceptable Title Matter removed, insured over or corrected as aforesaid, Purchaser sends may elect to either (i) terminate this Agreement and receive a refund of the Exxxxxx Money, or (ii) elect to accept title to the Property subject to the Unacceptable Title Matter with the right to deduct from the Purchase Price a sum equal to the amount required to discharge liens or encumbrances of a definite or ascertainable amount. If Purchaser fails to make either such a Disapproval Notice within such time periodelection, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by the payment of money, including, without limitation, judgment and mechanics' liens, to either be: elected option (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser in writing within ten (10) days after receipt of the Disapproval Notice whether Seller will cause all or any of such other Defects to be removed or cured at or prior to Closing, and Seller shall be deemed to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day period. If Seller elects not to remove or cure all Defects, Purchaser may elect, in its sole discretion, (i) subject to satisfaction of the other conditions to Closing, to close the purchase of the Property, taking a deduction from the Purchase Price in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cure, or (ii) to terminate this Agreement, in which event the Earnxxx Xxxey and all interest accrued thereon shall be immediately returned to Purchaser. If Seller elects to cure or remove any Defect, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days to remove or cure any Defect that it has elected to remove or cure (or deemed to have elected to remove or cure). The Closing Date shall be extended as necessary to permit the parties to exercise their respective rights and obligations pursuant to this Section 3.2above.

Title Defects. If Prior to the Title Commitment, the Lien Searches or the Survey, or any update later of the Title Commitment, the Lien Searches or the Survey, at any time discloses exceptions to title or any Defects other than Permitted Exceptions, Purchaser shall so notify Seller in writing (a "DISAPPROVAL NOTICE") on or before the end of the Inspection Period. Unless Purchaser sends such a Disapproval Notice within such time period, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by the payment of money, including, without limitation, judgment and mechanics' liens, to either be: (i) bonded and insured over, the expiration of the Due Diligence Period (hereinafter defined) or (ii)removed at or prior to ii) the Closing, and (b) notify Purchaser in writing within date that is ten (10) days after the date on which Buyer is in receipt of both the Title Commitment and the Survey, Buyer shall give Notice to Seller (the "Defects Notice") of any claim, lien or exception materially and adversely affecting title to the Property and which Buyer is not willing to waive (a "Defect"). Seller shall have the right, but not the obligation, to cure any Defect within thirty (30) days after its receipt of the Disapproval Notice whether Defects Notice, or in the case of any Defect which cannot with due diligence be cured within such 30-day period, such later date by which such Defect can reasonably be cured, provided that Seller will cause all or commences to cure such Defect within such 30-day period and thereafter continues diligently and in good faith to cure the Defect. In the event that Seller elects not to cure any such Defect, Seller shall notify Buyer of such other election within five (5) business days after its receipt of the Defects Notice. Seller shall have no obligation to be removed cure any Defect created solely by any acts or cured at or prior to Closingomissions of Buyer, and Seller Seller's failure to cure any such Defect shall be deemed not relieve Buyer from its obligation to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day periodclose under this Agreement. If Seller elects not to remove or cure any Defect as set forth above or, if by the expiration of the cure period provided for above, Seller has failed to cure all DefectsDefects (other than any Defects created solely by any acts or omissions of Buyer), Purchaser may electBuyer may, in at its sole discretionoption, either (i) proceed to close subject to satisfaction of the other conditions to Closingany such Defects, to close the purchase of the Propertywith no offset against, taking a deduction from or reduction in, the Purchase Price in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cure, or (ii) terminate this Agreement by written notice given to terminate Seller within five (5) business days after the expiration of the cure period or Seller's notice of election not to cure any Defect, as the case may be. In the event this Agreement is so terminated by Buyer, the Down Payment shall be returned to Buyer and the parties shall be released from all further obligations and liabilities hereunder, except with respect to the covenants and indemnities set forth in Sections 4, 6.1, 6.3, 7.1 and 15 (the "Surviving Indemnities"). Notwithstanding anything to the contrary contained in this Section 5.3, in the event that any Defect(s) is a mechanic's or materialmen's lien or other encumbrance securing the payment in the aggregate of a readily ascertainable sum of money of up to $250,000 or a deed of trust or mortgage granted by Seller (but not including any lien resulting from Buyer's failure to make any of the payments required under Section 7.1), Seller shall satisfy such Defect(s) of record or, as an alternative to causing such Defect(s) to be satisfied of record and provided that the Title Company agrees to omit such Defect(s) from the Title Policy: (i) bond or cause to be bonded such Defect(s); (ii) deliver or cause to be delivered to Buyer or the Title Company, on the date of the Closing, instruments in recordable form and sufficient to satisfy such Defect(s) of record, together with the appropriate recording or filing costs; (iii) deposit or cause to be deposited with the Title Company sufficient monies, acceptable to and reasonably requested by the Title Company, to assure the obtaining and recording of a satisfaction of the Defect(s); or (iv) otherwise cause the Title Company to omit such Defect(s) from the Title Policy. In addition, Seller shall use all reasonable efforts to satisfy all of Seller's requirements set forth in the Title Commitment. During the term of this Agreement, in which event the Earnxxx Xxxey and all interest accrued thereon shall be immediately returned to Purchaser. If Seller elects to cure or remove any Defect, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days to remove not grant any easement or cure restriction encumbering the Property or any Defect that it has elected to remove part thereof unless provided for in the LCP or cure (or deemed to have elected to remove or cure). The Closing Date shall be extended as necessary to permit the parties to exercise their respective rights and obligations pursuant to this Section 3.2any governmental approval relating thereto.

Title Defects. If the any Title CommitmentCommitment or Survey discloses any (i) mortgages, the Lien Searches or the Surveydeeds of trust, financing statements, judgments, mechanic’s liens, materialmen’s liens, tax liens, or any update of similar monetary liens, (ii) material encroachments, or (iii) other title exceptions or defects that materially and adversely affect the Title Commitment, the Lien Searches future use or the Survey, at any time discloses exceptions to title or any Defects other than Permitted Exceptions, Purchaser shall so notify Seller in writing (a "DISAPPROVAL NOTICE") on or before the end of the Inspection Period. Unless Purchaser sends such a Disapproval Notice within such time period, Purchaser shall be deemed to have approved the Title Commitment, Lien Searches, and Survey. With respect to any Defects noted in a Disapproval Notice, Seller shall (a) cause any such Defects which are monetary liens operation of a fixed or ascertainable amount that may be removed by the payment of moneyProperty as a Sears brand retail store, including, without limitation, judgment the sale of consumables and mechanics' lienstransactional merchandise (a “Material Title Defect”), Purchaser shall use commercially reasonable efforts to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser Seller in writing of such Material Title Defect within ten (10) days after Purchaser’s receipt of a Title Commitment and Survey for a Property, but in no event later than forty five (45) days after the Disapproval Notice whether Seller will cause all or any of such other Defects to be removed or cured at or prior to ClosingEffective Date (the “Title Review Period”), and Seller shall be deemed to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day perioddays from the receipt of Purchaser’s notice (“Seller’s Title Cure Election Period”) to elect whether to have the Material Title Defect removed or cured (or to commit to do the same), to the reasonable satisfaction of Purchaser. If In the event Seller elects elects, within Seller’s Title Cure Election Period, not to remove or cure all Defectssuch Material Title Defect, Purchaser may electshall have the option, in its sole discretionwithin ten (10) days after the expiration of Seller’s Title Cure Election Period, to either (i) subject waive such Material Title Defect and proceed to satisfaction of the other conditions to Closing, to close the purchase of the Property, taking a deduction from the Purchase Price Closing for such Property in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cureaccordance with this Agreement, or (ii) elect not to terminate this Agreementacquire such Property and related Transferred Assets, in which event the Earnxxx Xxxey and all interest accrued thereon Property Termination Procedure shall be immediately returned to Purchaserapply. If In the event Seller elects to cure or remove any Defectelects, then Seller thereafter shall be obligated to do so as long as this Agreement is in effect. Seller shall have thirty (30) days within Seller’s Title Cure Election Period, to remove or cure any Defect that it has elected such Material Title Defect, Seller shall be entitled to a period ending on the later of (1) 30 days after the expiration of Seller’s Title Cure Election Period, or (2) the Closing Date with respect to such Property, to remove or cure (such Material Title Defect, upon which removal or deemed to have elected to remove or cure). The Closing Date shall be extended as necessary to permit cure the parties shall proceed to exercise their respective rights Closing for such Property in accordance with this Agreement. Any liens, encumbrances, title defects or other title exceptions disclosed in any Title Commitment or Survey and obligations which do not constitute Material Title Defects (and any Material Title Defects which Purchaser elects to waive pursuant to this Section 3.26.2), shall be referred to herein as the “Permitted Exceptions”. Notwithstanding the foregoing, Seller shall cause to be removed and discharged of record prior to Closing (i) any lien encumbering the Property and securing money borrowed by Seller, and (ii) any mechanic’s lien, judgment lien or other lien securing a liquidated sum relating to work performed by or on behalf of Seller or otherwise required to be removed by Seller pursuant to the applicable Lease for such Property, provided that Seller shall not be required to remove or discharge at Closing any bona fide mechanic’s liens, judgment liens or other liens (excluding judgment liens relating to non-appealable judgments) encumbering the Property and described in this clause (ii) if the aggregate amount of such liens exceeds five percent (5%) of the Purchase Price allocated to such Property, and if Seller so elects not to remove and discharge such liens at Closing pursuant to this proviso, then Purchaser shall have the same rights (as set forth in the second sentence of this Section 6.2) as if Seller shall have elected not to cure a Material Title Defect, except that if Purchaser elects to waive such Material Title Defect and to proceed to Closing, the Purchase Price allocated to such Property shall be reduced by five percent (5%).

Title Defects. If Buyer shall give Notice to Seller (the Title Commitment"Defects ------------- Notice") of any claim, lien or exception materially and adversely affecting title to the Lien Searches or the Survey, or any update of the Title Commitment, the Lien Searches or the Survey, at any time discloses exceptions Property and which Buyer is not willing to title or any Defects other than Permitted Exceptions, Purchaser shall so notify Seller in writing waive (a "DISAPPROVAL NOTICEDefect"). Seller shall have the right, but not the obligation, to cure any Defect within fifteen (15) on or before the end days after its receipt of the Inspection Period. Unless Purchaser sends such a Disapproval Notice Defects Notice, or in the case of any Defect which cannot with due diligence be cured within such time 15-day period, Purchaser such later date by which such Defect can reasonably be cured, provided that Seller commences to cure such Defect within such 15-day period and thereafter continues diligently and in good faith to cure the Defect. The Closing shall be deemed extended, if necessary, in order to have approved permit the Title Commitmentcure described above, Lien Searches, and Surveybut in no event shall the date of the Closing be extended for more than sixty (60) days. With respect In the event that Seller elects not to cure any Defects noted in a Disapproval Noticesuch Defect, Seller shall notify Buyer of such election within five (a5) cause any such Defects which are monetary liens of a fixed or ascertainable amount that may be removed by the payment of money, including, without limitation, judgment and mechanics' liens, to either be: (i) bonded and insured over, or (ii)removed at or prior to the Closing, and (b) notify Purchaser in writing within ten (10) business days after its receipt of the Disapproval Notice whether Seller will cause all or any of such other Defects to be removed or cured at or prior to Closing, and Seller shall be deemed to have elected to remove or cure all other Defects by Closing if Seller does not notify Purchaser to the contrary in writing within such ten (10) day periodNotice. If Seller elects not to remove or cure any Defect as set forth above or, if by the expiration of the cure period provided for above, Seller has failed to cure all Defects, Purchaser may electBuyer may, in at its sole discretionoption, either (i) proceed to close subject to satisfaction of the other conditions to Closingany such Defects, to close the purchase of the Propertywith no offset against, taking a deduction from or reduction in, the Purchase Price in the amount necessary to cure the monetary liens of a fixed or ascertainable amount that may be removed by the payment of money which Seller has not bonded and insured over, and to take title subject to the other Defects noted in the Disapproval Notice that Seller elects not to remove or cure, or (ii) to terminate this Agreement, in which event Agreement by written notice given to Seller within five (5) business days after the Earnxxx Xxxey and all interest accrued thereon shall be immediately returned to Purchaser. If Seller elects expiration of the cure period or Seller's notice of election not to cure or remove any Defect, then Seller thereafter shall be obligated to do so as long as the case may be. In the event this Agreement is so terminated by Buyer, the Down payment shall be delivered to Buyer and the parties shall be released from all further obligations and liabilities hereunder, except with respect to the covenants and indemnities which expressly survive the Closing or termination of this Agreement. Notwithstanding anything to the contrary contained in effect. this Section 4.3, in the event that any Defect(s) is a mechanic's or materialmen's lien or other encumbrance securing the payment in the aggregate of a readily ascertainable sum of money of up to $30,000, Seller shall have thirty satisfy such Defect(s) of record or, as an alternative to causing such Defect(s) to be satisfied of record and provided that the Title Company agrees to omit such Defect(s) from the Title Policy by (30i) days bond or cause to remove be bonded such Defect(s); (ii) delivering or cure any Defect that it has elected cause to remove be delivered to Buyer or cure the Title Company, on the date of the Closing, instruments in recordable form and sufficient to satisfy such Defect(s) of record, together with the appropriate recording or filing costs; (iii) depositing or deemed cause to have elected be deposited with the Title Company sufficient monies, acceptable to remove and reasonably requested by the Title Company, to assure the obtaining and recording of a satisfaction of the Defect(s); or cure). The Closing Date shall be extended as necessary (iv) otherwise cause the Title Company to permit omit such Defect(s) from the parties to exercise their respective rights and obligations pursuant to this Section 3.2Title Policy.