Common use of Defects and Cure Clause in Contracts

Defects and Cure. The Title Commitment and the Survey are collectively referred to as the “Title Evidence.” If the Title Evidence discloses, with respect to the Survey, any material encroachment onto or off of either the Property or any easement benefiting or burdening the Property, or, with respect to the Title Commitment, any matters other than Permitted Exceptions or mortgages or monetary liens to be discharged by Seller at or prior to Closing, Buyer shall notify Seller in writing within ten (10) days of Buyer’s receipt of the Title Commitment or the Survey specifying the defects shown thereby (the “Defects”), and Seller shall have ten (10) days from the date of Buyer’s notice of the Defects to respond to Buyer with Seller’s intention to correct or cure the Defects or with Seller’s intention not to cure the Defects. If Seller elects to cure the Defects, it shall have until the date that is ten (10) days prior to the date of Closing within which to use good faith, diligent efforts to cure the Defects. If Seller elects not to cure the Defects or fails to cure and remove all Defects within ten (10) days prior to the date of Closing, this Agreement may be terminated at Buyer’s election by written notice given to Seller within five (5) days of Buyer’s receipt of notice that Seller will not cure Defects or five (5) days prior to the date of Closing in the event of Seller’s failure to cure whereupon this Agreement shall automatically terminate and be null and void, or Buyer may, at its sole election by written notice, proceed to close this transaction notwithstanding any Defects and without offset or deduction in the Purchase Price, in which event such Defects shall become Permitted Exceptions and shall be waived by Buyer for all purposes.

Defects and Cure. The Buyer shall have until 5:00 PM (Eastern Standard Time) on June 14, 2016 to notify Seller in writing (which may be sent via email to Seller’s attorney) (“Title Defect Notice”) of any objections or requirements pertaining to the Title Commitment and Survey (collectively, “Title Defects”); provided, however, that Buyer shall not be entitled to object to any matters shown on the Existing Survey or any of the Permitted Exceptions (which shall not be deemed Title Defects). In the event that Buyer fails to provide a Title Defect Notice within such time period, then Buyer shall be deemed to have accepted all matters pertaining to the Title Commitment and the Survey are collectively referred to as the “Title Evidence.” Survey, and such matters shall be deemed Permitted Exceptions hereunder. If Buyer timely delivers the Title Evidence disclosesDefect Notice, with respect then Seller shall within two (2) days thereafter notify Buyer of any Title Defects which Seller is unable or unwilling to the Surveycure, any material encroachment onto or off of either the Property or any easement benefiting or burdening the Property, or, with respect it being understood that Seller has no obligation to the Title Commitment, any matters do so other than Permitted Exceptions or mortgages or monetary liens as expressly hereinafter set forth in this Section 6. In the event that Seller fails to be discharged by Seller at or prior to Closingnotify Buyer, Buyer shall notify Seller in writing within ten (10) days writing, of Buyer’s receipt of the Title Commitment or the Survey specifying the defects shown thereby (the “Defects”), and Seller shall have ten (10) days from the date of Buyer’s notice of the Defects to respond to Buyer with Seller’s intention to correct or cure the Defects or with Seller’s intention any Title Defects, Seller shall be deemed to have elected not to cure the such Title Defects. If Seller elects to cure the Defects, it shall have until the date that is ten (10) days prior to the date of Closing within which to use good faith, diligent efforts to cure the Defects. If by Seller’s written notice or silence Seller elects not to cure the Defects or fails attempt to cure and remove all Defects within ten (10) days any of Title Defects, then Buyer may, on or prior to the date end of Closingthe Inspection Period, this Agreement may be terminated at deliver written notice to Seller indicating Buyer’s election by written notice given to Seller within five (5A) days of Buyer’s receipt of notice that Seller will terminate this Agreement, whereupon the Deposit shall be immediately returned to Buyer and the parties hereto shall not cure Defects or five (5) days prior have further obligations to the date of Closing in the event of Seller’s failure to cure whereupon this Agreement shall automatically terminate and be null and voidother party hereunder except as expressly provided herein, or Buyer may, at its sole election by written notice, (B) proceed to close this transaction notwithstanding without any Defects and without offset or deduction reduction in the Purchase Price, in which event any Title Defects (as of the end of the Inspection Period) shall be deemed Permitted Exceptions. In the event that Buyer fails to notify Seller, in writing, of Buyer’s intention to proceed under subsection (A) or (B) above, then Buyer shall be deemed to have elected to proceed under subsection (A) above. As to those Title Defects agreed to be cured by Seller in writing, curing such Title Defects shall become Permitted Exceptions be a condition precedent to Buyer’s obligation to close and shall be waived cured and removed by Seller on or before the Closing Date, provided that Seller shall have the right to extend the Closing Date for an additional thirty (30) days as to cure such matters. If Seller fails to remove, discharge or correct the agreed Title Defects as of the Closing Date, then Buyer may, at its option and as its sole remedy, either: (i) terminate this Agreement by written notice to Seller on the Closing Date; or (ii) proceed to close and accept title “as is” without reduction in the Purchase Price. If Buyer shall elect to terminate this Agreement pursuant to this Section 6(c), then the Deposit shall be repaid to Buyer and thereafter this Agreement shall be null and void and of no further force and effect, except for all purposesany obligations hereunder that shall survive the termination of this Agreement.

Defects and Cure. The Title Commitment and the Title Policy and Survey described in this Article are collectively referred to as the “Title Evidence.” If Purchaser shall provide written notification (a “Title Objection”) within the earlier of (i) five (5) business days prior to the end of the Inspection Period or (ii) twenty-five (25) days after its receipt of all of the Title Evidence disclosesof any liens, with respect to the SurveyClaims, any material encroachment onto encroachments, exceptions or off of either the Property or any easement benefiting or burdening the Property, or, with respect to defects disclosed in the Title CommitmentEvidence (including but not limited to any refusal or inability to issue any endorsement or requested coverage or meet any survey requirements) which in Purchaser’s sole discretion is unacceptable or adversely impacts any of the Facility, any matters other than Permitted Exceptions the Business or mortgages the financeability or monetary liens operation thereof (collectively, “Defects”). Sellers shall elect whether it will cure the Defects, and if Sellers fail to be discharged by Seller at or prior to Closing, Buyer shall notify Seller in writing give such notice of their decision within ten (10) days of Buyer’s their receipt of the Title Commitment or the Survey specifying the defects shown thereby (the “Defects”)Objection, and Seller Sellers shall be deemed to have ten (10) days from the date of Buyer’s notice of the Defects to respond to Buyer with Seller’s intention to correct or cure the Defects or with Seller’s intention not elected to cure the Defects. If Seller elects Sellers elect not to cure the Defects, it they shall have until the date that is ten (10) days prior give written notice to the date of Closing within which to use good faith, diligent efforts to cure the Defects. If Seller elects not to cure the Defects or fails to cure and remove all Defects Purchaser within ten (10) days prior of their receipt of the Title Objection of their decision not to the date of Closing, this Agreement may be terminated at Buyer’s election by written notice given to Seller within five cure. Within ten (510) days of Buyer’s receipt of such written notice that Seller will from Sellers, Purchaser may (i) waive such Defects and close (whereupon such defects shall be deemed to be “Permitted Encumbrances”), or (ii) terminate this Agreement at any time and thereupon receive prompt refund of the Xxxxxxx Money and all interest accrued thereon. Alternatively, if Sellers elect or are deemed to elect to cure such Defects, then Sellers shall cure the Defects at their sole cost and expense, and shall be given a reasonable period to do so, but not to exceed ten (10) days. Should Sellers fail or refuse to cure such Defects within a reasonable period, but not to exceed ten (10) days, Purchaser may (i) waive such Defects and close or five (5ii) days terminate this Agreement prior to Closing. If Purchaser elects to terminate this Agreement pursuant to this Section, Purchaser shall thereupon receive prompt refund of the date Xxxxxxx Money and all interest accrued thereon. Upon termination of Closing this Agreement under the terms of this Section, no party to this Agreement shall have any further claims or obligations under this Agreement except for those that expressly survive termination of this Agreement. Notwithstanding the foregoing, Sellers shall be obligated to terminate or cure any of the following objections to title, and Purchaser shall be entitled to bring suit for damages or specific performance in the event of Seller’s failure the following are not cured prior to cure whereupon this Agreement shall automatically terminate and be null and void, or Buyer may, at its sole election by written notice, proceed to close this transaction notwithstanding any Defects and without offset or deduction in the Purchase Price, in which event such Defects shall become Permitted Exceptions and shall be waived by Buyer for all purposes.Closing:

Defects and Cure. The Title Commitment and the Survey are collectively referred to as the “Title Evidence.” If the Title Evidence discloses, with respect to the Survey, any material encroachment onto or off of either the Property or any easement benefiting or burdening the Property, or, with respect to the Title Commitment, discloses any matters other than Permitted Exceptions or mortgages or monetary liens to be discharged by Seller at or prior to Closing, Buyer shall notify Seller in writing within ten (10) days of Buyer’s receipt of the Title Commitment or the Survey specifying the defects shown thereby which Purchaser objects (the “Defects”), other than those matters listed in items (1), (3) and (4) comprising Permitted Exceptions in Section 7.1 above, Purchaser shall notify Seller thereof (the “Defect Notice”), in writing, at least five (5) business days prior to the expiration of the Inspection Period, and thereafter Seller shall have ten the right (10but, except as set forth below, not the obligation) to cure and remove such Defects prior to or at Closing. If included in Purchaser’s Defect Notice, Seller shall be obligated to cure and remove prior to or at Closing the liens of any mortgages or security interests placed on the Property by Seller or any affiliate of Seller and liens of and any past due ad valorem taxes listed on Exhibit J, unless Seller provides written evidence that same are not due and owing by Seller (the “Mandatory Cure Items”). Within five (5) business days from the date of Buyerafter Seller’s notice receipt of the Defects to respond to Buyer with Defect Notice, Seller shall notify Purchaser (“Seller’s intention Response Notice”) as to correct or cure the Defects or with Seller’s intention not to cure the Defects. If those Defect(s), if any, that Seller elects to cure the Defects, it shall have until the date that is ten (10) days prior to or at Closing (the date of Closing within which to use good faith, diligent efforts to cure the Defects“Voluntary Cure Items”). If Seller elects not to cure the Defects or fails to cure and remove all Defects deliver such Seller’s Response Notice to Purchaser within ten (10) days prior days, Seller shall be deemed to have notified Purchaser that Seller shall not cure any Defect(s) raised in the date of ClosingDefect Notice other than Mandatory Cure Items. If Seller notifies Purchaser (or is deemed to notify Purchaser) that it will not cure any or all Defect(s), then Purchaser may: (i) terminate this Agreement may be terminated at Buyer’s election by written notice given to Seller and Title Company given within five (5) days of Buyerafter Purchaser receives (or is deemed to receive) Seller’s receipt of notice that Seller will not cure Defects or five (5) days prior Response Notice, in which event the Deposit shall be returned to Purchaser and neither party shall have any further liability to the date of Closing other hereunder, except as otherwise specifically provided in the event of Seller’s failure to cure whereupon this Agreement shall automatically terminate and be null and void, Agreement; or Buyer may, at its sole election by written notice, (ii) proceed to close this transaction notwithstanding any Defects and without with no reduction in or offset or deduction in against the Purchase Price, in which event and thereafter Purchaser shall be deemed to have accepted such Defects Defect(s) (other than the Mandatory Cure Items) as Permitted Exceptions, and Purchaser shall become be deemed to automatically and forever waive any and all claims and liabilities against Seller with respect to such Defect(s). To the extent that Purchaser fails to timely and properly notify Seller (pursuant to this Section 7.4) of any such Defect(s) (other than Mandatory Cure Items), Purchaser shall be deemed to have accepted the same and to automatically and forever waive its right to terminate this Agreement pursuant to this Section 7.4 and such Defect(s) shall be deemed Permitted Exceptions and shall be waived by Buyer for all purposespurposes hereunder.

Defects and Cure. The Existing Title Commitment Work, the New Title Work, the Existing Surveys and the Survey New Surveys are collectively referred to as the “Title Evidence.” If ”. Buyers shall notify Sellers in writing within twenty (20) days after the date hereof of any claims, encumbrances, exceptions or defects disclosed in the Title Evidence, other than Permitted Exceptions, to which Buyers object (the “Defects”). Any matters disclosed in the Title Evidence disclosesas to which Buyers do not so object shall be deemed to be Permitted Exceptions. Sellers, with respect to the Surveyat their sole cost and expense, shall cure any material encroachment onto such Defects on or off of either the Property or any easement benefiting or burdening the Property, or, with respect to before Closing (“cure” shall include an endorsement by the Title CommitmentCompany reasonably acceptable to Buyers, any matters other than Permitted Exceptions either eliminating the Defect, insuring over the Defect or mortgages insuring against the effect of the Defect or monetary liens Sellers may elect to be discharged by Seller at or prior not cure the Defect and shall give written notice to Closing, Buyer shall notify Seller in writing Buyers within ten (10) days of Buyer’s its receipt of the Title Commitment or the Survey specifying the defects shown thereby (the “Defects”), and Seller shall have Buyers’ notice of Defects of their decision. Within ten (10) days from the date of Buyer’s notice Buyers’ receipt of the Defects to respond to Buyer with Seller’s intention to correct or cure the Defects or with Seller’s intention Sellers’ election not to cure the Defects. If Seller elects to cure the any Defects, it shall have until the date that is ten (10) days prior to the date of Closing within which to use good faith, diligent efforts to cure the Defects. If Seller elects not to cure the Defects or fails to cure and remove all Defects within ten (10) days prior to the date of Closing, this Agreement may be terminated at Buyer’s election by written notice given to Seller within five (5) days of Buyer’s receipt of notice that Seller will not cure Defects or five (5) days prior to the date of Closing in the event of Seller’s failure to cure whereupon this Agreement shall automatically terminate and be null and void, or Buyer Buyers may, at its sole election by written noticetheir election, proceed to close this transaction notwithstanding any (i) waive such uncured Defects and without offset or deduction in the Purchase Price, close (in which event such Defects shall become be deemed Permitted Exceptions and Exceptions), or (ii) terminate this Agreement. If Sellers fail to timely give such notice, Sellers shall be waived by Buyer for all purposesdeemed to have elected not to cure the Defects, whereupon Buyers may waive such Defects and close or may terminate this Agreement as provided in the immediately preceding sentence.

Defects and Cure. The Existing Title Commitment Work, the New Title Work, the Existing Survey and the New Survey are collectively referred to as the “Title Evidence.” If the Title Evidence discloses, with respect to the Survey, any material encroachment onto or off of either the Property or any easement benefiting or burdening the Property, or, with respect to the Title Commitment, any matters other than Permitted Exceptions or mortgages or monetary liens to be discharged by Seller at or prior to Closing, ”. Buyer shall notify Seller in writing within five (5) days after its receipt of the last of the Title Evidence of any claims, encumbrances, exceptions or defects disclosed in the Title Evidence, other than Permitted Exceptions, to which Buyer objects (the “Defects”). Any matters disclosed in the Title Evidence as to which Buyer does not so object shall be deemed to be Permitted Exceptions. For purposes of this Agreement, any encumbrance, exception or other matter reflected on any Existing Title Work or Existing Survey, other than mortgages or liens to be released at Closing, shall be deemed a Permitted Exception. Seller, at its sole cost and expense, may elect to cure any such Defects on or before Closing (“cure” shall include, but is not limited to, an endorsement by the Title Company reasonably acceptable to Buyer or its lender, either eliminating the Defect, insuring over the Defect or insuring against the effect of the Defect) or Seller may elect to not cure the Defect and shall give written notice to Buyer within ten (10) days of its receipt of Buyer’s notice of Defects of its decision. Within ten (10) days of Buyer’s receipt of the Title Commitment Seller’s election not to cure any Defects, Buyer may, at its election, (i) waive such uncured Defects and close, or the Survey specifying the defects shown thereby (the “Defects”)ii) terminate this Agreement. If Seller fails to timely give such notice, and Seller shall be deemed to have ten (10) days from the date of Buyer’s notice of the Defects to respond to Buyer with Seller’s intention to correct or cure the Defects or with Seller’s intention elected not to cure the Defects. If Seller elects to cure the Defects, it shall have until the date that is ten (10) days prior to the date of Closing within which to use good faith, diligent efforts to cure the Defects. If Seller elects not to cure the whereupon Buyer may waive such Defects and close or fails to cure and remove all Defects within ten (10) days prior to the date of Closing, may terminate this Agreement may be terminated at Buyer’s election by written notice given to Seller within five (5) days of Buyer’s receipt of notice that Seller will not cure Defects or five (5) days prior to the date of Closing as provided in the event of Seller’s failure to cure whereupon this Agreement shall automatically terminate and be null and void, or Buyer may, at its sole election by written notice, proceed to close this transaction notwithstanding any Defects and without offset or deduction in the Purchase Price, in which event such Defects shall become Permitted Exceptions and shall be waived by Buyer for all purposesimmediately preceding sentence.

Defects and Cure. The Title Commitment items described in subsection (b) and the Survey (c) of this Section 7 are collectively referred to as “Title Evidence;” provided, however, if Purchaser does not obtain the Updated Survey within thirty (30) days following the Contract Date, then the “Title Evidence.” shall not include the Updated Survey. If the Title Evidence discloses, with respect to the Survey, any material encroachment onto or off of either the Property or any easement benefiting or burdening the Property, or, with respect to the Title Commitment, discloses any matters other than Permitted Exceptions or mortgages or monetary liens to be discharged by Seller at or prior to Closing, Buyer which Purchaser shall notify Seller in writing within ten (10) days of Buyer’s receipt of the Title Commitment or the Survey specifying the defects shown thereby object (the “Defects”), and Purchaser shall notify Seller shall have ten thereof (10) days from the date of Buyer’s notice of the Defects to respond to Buyer with Seller’s intention to correct or cure the Defects or with Seller’s intention not to cure the Defects. If Seller elects to cure the Defects“Defect Notice”), it shall have until the date that is ten (10) days prior to the date of Closing within which to use good faithin writing, diligent efforts to cure the Defects. If Seller elects not to cure the Defects or fails to cure and remove all Defects within ten (10) days following the receipt by Purchaser of the Title Evidence and thereafter Seller shall have the right (but not the obligation) to cure and remove, or obtain title insurance for, such Defects prior to Closing. Within ten (10) business days after Seller’s receipt of the date of Defect Notice, Seller shall notify Purchaser (“Seller’s Response Notice”) as to those Defect(s), if any, that Seller shall attempt to cure or obtain title insurance for prior to Closing, if any. If Seller fails to deliver such Seller’s Response Notice to Purchaser within ten (10) days, Seller shall be deemed to have notified Purchaser that Seller shall not attempt to cure or obtain title insurance for any Defect(s) raised in the Defect Notice. If Seller notifies Purchaser (or is deemed to notify Purchaser) that it will not attempt to cure or obtain title insurance for any or all Defect(s), then Purchaser may (1) terminate this Agreement may be terminated at Buyer’s election by written notice given to Seller given within five (5) days of Buyerafter Purchaser receives (or is deemed to receive) Seller’s receipt of notice that Seller will not cure Defects or five (5) days prior Response Notice, but in no event later than the Approval Date, in which event the Xxxxxxx Money, together with all interest earned thereon, shall be returned to Purchaser and neither party shall have any further liability to the date of Closing other hereunder, except as provided in the event of Seller’s failure to cure whereupon this Agreement shall automatically terminate Sections 6(c), 17 and be null and void, 20 below; or Buyer may, at its sole election by written notice, (2) proceed to close this transaction notwithstanding any Defects and without with no reduction in or offset or deduction in against the Purchase Price, in which event and thereafter Purchaser shall be deemed to have accepted such Defects Defect(s) as Permitted Exceptions, and Purchaser shall become be deemed to automatically and forever waive any and all claims and liabilities against Seller with respect to such Defect(s). To the extent that Purchaser fails to timely and properly notify Seller (pursuant to this Section 7) of any such Defect(s), Purchaser shall be deemed to have accepted the same and to automatically and forever waive its right to terminate this Agreement pursuant to this Section 7(d) and such Defect(s) shall be deemed Permitted Exceptions for all purposes hereunder. Notwithstanding the foregoing, in no event shall any mortgages, deeds of trust or other monetary liens encumbering the Project, each created by, through or under Seller, other than inchoate liens for non-delinquent taxes (“Monetary Liens”), constitute Permitted Exceptions, regardless of whether or not Purchaser delivers a Defect Notice with respect thereto, and Seller shall be waived obligated to cure any such Monetary Liens at or prior to Closing (with Seller being permitted to apply the Purchase Price at Closing in order to effect such cure). Further notwithstanding the foregoing, in the event any new Defects are disclosed by Buyer for all purposesany updated Title Evidence first received by Purchaser after the Approval Date, Purchaser shall have the right to send a Defect Notice with respect thereto, and the procedures of this Section 7(d) shall otherwise apply, except that (x) Purchaser must deliver the Defect Notice (if at all) within two (2) business days after receipt of the applicable updated Title Evidence, (y) Seller must send the Seller’s Response Notice (if at all) within two (2) business days after receipt of the applicable Defect Notice, and (z) Purchaser must terminate this Agreement (if at all) within one (1) business day after receipt of the applicable Seller’s Response Notice, but in no event later than the Closing Date.