Common use of Defects Arising After the Effective Date Clause in Contracts

Defects Arising After the Effective Date. (a) The UCC Search shall be updated by the Company not earlier than thirty (30) days and not later than ten (10) days prior to the Closing Date. The Endorsement, if Buyer elects to obtain such Endorsement, shall be updated by Buyer not earlier than thirty (30) days and not later than ten (10) days prior to the Closing Date. If the updated UCC Search and/or Endorsement, if applicable, discloses defects in title not shown by (i) the applicable Title Policy, (ii) UCC Search, (iii) the Company Disclosure Letter, (iv) the Title Commitment or (v) this Agreement which, in any case, render fee simple title to the Real Property uninsurable (at ordinary rates) (“Non-Monetary Defects”), or, if the Real Property should become subject to a Monetary Defect (together with any Non-Monetary Defects, “Additional Exceptions”), Buyer may object to such Additional Exceptions by delivering to the Company an itemized written notice of Buyer’s objection to such Additional Exceptions (“Defect Notice”) within fifteen (15) days after the date of receipt by Buyer of the updated Endorsement, if applicable, or UCC Search or, if earlier, the Closing Date (the “Notice Period”). Additional Exceptions will not be deemed to include any Permitted Liens or Permitted Encumbrances. Buyer’s failure to deliver a Defect Notice during the Notice Period shall be deemed a waiver of Buyer’s right to object to such Defect(s), and Buyer shall then accept such title as is described in the Endorsement and UCC Search, as updated, without reserving any claim against the Company for such Defect(s); provided that such a failure shall not limit any claim that Buyer may have with respect to a breach of the Company’s obligations pursuant to Section 9.1(d) hereof). (b) If Buyer provides a Defect Notice to the Company during the Notice Period, the Company shall have five (5) days after receipt of the Defect Notice within which to give written notice to Buyer as to whether the Company will elect to cure any Additional Exceptions. The Company shall be under no obligation to remove any Additional Exceptions that are not Monetary Defects (and that are not created as a consequence of a breach of the Company’s obligations pursuant to Section 9.1(d) hereof), and any refusal of the Company to do so shall not be a default of the Company under this Agreement. Failure to notify Buyer in writing within such period of the Company’s election shall be deemed the Company’s election not to cure any such Additional Exceptions. If the Company elects, in its sole discretion, to cure any Additional Exceptions, the Company shall have thirty (30) days after receipt of the Defect Notice to cure such Additional Exceptions which Company has elected to cure, and the Closing shall, if necessary, be extended accordingly. Buyer shall have five (5) business days following either receipt of the Company’s notice electing not to cure any Additional Exceptions or the date on which the Company is deemed to have elected not to cure any Additional Exceptions in which to elect (in each case, without limitation to any claim that Buyer may have with respect to a breach of the Company’s obligations pursuant to Section 9.1(d) hereof) either to (i) waive its objection to the Additional Exceptions that the Company does not or is deemed not to elect to cure and to proceed with Closing; or (ii) terminate this Agreement upon written notice to the Company and Escrow Agent. The Company shall be obligated to cure Monetary Defects in accordance with Section 13.2(c). (c) The Company shall be obligated to cure monetary Liens encumbering the Real Property (other than any non-delinquent Taxes and assessments and any monetary Liens created or suffered by Buyer or consented to by Buyer), including financing liens or encumbrances created by, under or through or the Company or that are held by the Company or any of its Affiliates (“Monetary Defects”) in the manner provided below. In order to cure a Monetary Defect, or any Additional Exception that the Company elects to cure in accordance with this Article XIII, the Company shall have the option to extend the Closing Date for a period of thirty (30) days, by giving written notice of such extension election to Buyer and Escrow Agent on or prior to the Closing Date. The Company may cure Monetary Defects, and any Additional Exceptions that the Company elects to cure, by any of the following methods to the extent applicable: (i) removing the Monetary Defect or applicable Additional Exceptions of record; (ii) posting a bond which causes a Monetary Defect to cease to be a Lien on the Real Property; or (iii) providing indemnification to the Title Insurer against adverse final adjudication of any Monetary Defect or such Additional Exception and having the Title Insurer provide an endorsement, if applicable, which deletes such Monetary Defect or such Additional Exception as an exception to coverage.

Defects Arising After the Effective Date. (a) The Title Commitment and UCC Search shall be updated by the Company not earlier than thirty (30) days and not later than ten (10) calendar days prior to the Closing Date. The Endorsementby Seller and Seller shall cause the Title Insurer to issue a pro forma title policy, if together with all endorsements required by Buyer, all in a form acceptable to Buyer elects to obtain such Endorsement, shall be updated by Buyer not earlier than thirty (30) days and not later than ten (10) days prior to the Closing Date“Pro Forma Title Policy”). If the updated Title Commitment or UCC Search and/or Endorsement, if applicable, discloses defects in title not shown by (i) the applicable Title PolicyCommitment, (ii) UCC Search, (iii) the Company Disclosure Letter, (iv) the Title Commitment Schedules or (v) this Agreement which, in any case, which render fee simple Seller’s title to the Real Property unmarketable and uninsurable (at ordinary rates) (“Non-Monetary DefectsDefect”), or, if the Real Property should become subject to a Monetary Defect (together with any Non-Monetary DefectsDefect, “Additional ExceptionsDefects”), Buyer may object to such Additional Exceptions Defect(s) by delivering to the Company Seller an itemized written notice of Buyer’s objection to such Additional Exceptions Defect(s) (“Defect Notice”) within fifteen ten (1510) calendar days after the date of receipt by Buyer of the updated Endorsement, if applicable, Title Commitment or UCC Search or, if earlier, the Closing Date (the “Notice Period”). Additional Exceptions Defect(s) will not be deemed to include any Permitted Liens or Permitted EncumbrancesLiens. Buyer’s failure to deliver a Defect Notice during the Notice Period shall be deemed a waiver of Buyer’s right to object to such Defect(s)Defects, and Buyer shall then accept such title as is described in the Endorsement Title Commitment and UCC Search, as updated, without reserving any claim against the Company Seller for such Defect(s); provided that such a failure shall not limit any claim that Buyer may have with respect to a breach of the Company’s obligations pursuant to Section 9.1(d) hereof). (b) If Buyer provides a Defect Notice to the Company Seller in accordance with Section 11.2(a) during the Notice Period, the Company Seller shall have five (5) calendar days after receipt of the Defect Notice within which to give written notice to Buyer as to whether the Company will elect Seller elects to cure any Additional Exceptions. The Company shall be under no obligation to remove any Additional Exceptions that are not Non-Monetary Defects (and that are not created as a consequence of a breach of the Company’s obligations pursuant to Section 9.1(d) hereof), and any refusal of the Company to do so shall not be a default of the Company under this AgreementDefects. Failure to notify Buyer in writing within such period of the CompanySeller’s election shall be deemed the CompanySeller’s election not to cure any such Additional ExceptionsNon-Monetary Defects. If the Company Seller elects, in its sole discretion, to cure any Additional ExceptionsNon-Monetary Defects, the Company Seller shall have thirty (30) calendar days after receipt of the Defect Notice (or, if longer, until the Closing Date) to cure any such Additional Exceptions Non-Monetary Defects which Company has it elected to cure, and the Closing Date shall, if necessary, be extended accordingly. Buyer shall have five (5) business calendar days following either receipt of the CompanySeller’s notice electing not to cure any Additional Exceptions Non-Monetary Defect or the date on which the Company Seller is deemed to have elected not to cure any Additional Exceptions Non-Monetary Defect in which to elect (in each case, without limitation to any claim that Buyer may have with respect to a breach of the Company’s obligations pursuant to Section 9.1(d) hereof) either to (i) waive its their objection to the Additional Exceptions any Non-Monetary Defect that the Company Seller does not elect or is are deemed not to elect to cure and to proceed with Closingcure; or (ii) terminate this Agreement upon written notice to Seller and the Company and Escrow Agent. The Company Seller shall be obligated to cure Monetary Defects in accordance with Section 13.2(c11.2(c). (c) The Company Seller shall be under no obligation to remove Non-Monetary Defects, and any failure or refusal of Seller to do so shall not be a default of Seller hereunder. Seller shall be obligated to cure monetary Liens encumbering the Real Property (other than any non-delinquent Taxes and assessments and any monetary Liens created or suffered by Buyer or consented to by Buyer), including financing liens or encumbrances created by, under or through or ) which are unpaid and liquidated at the Company or that are held by the Company or any of its Affiliates Closing (“Monetary Defects”) in the manner provided below. For purposes of the prior sentence, a monetary Lien is “liquidated” only if it is fixed either by agreement of Seller and the Person asserting such Lien or by operation of Law. In order to cure a Monetary Defect, or any Additional Exception that the Company elects to cure in accordance with this Article XIII, the Company Seller shall have the option to extend the Closing Date for a period of thirty (30) calendar days, by giving written notice of such extension election to Buyer and the Escrow Agent on or prior to the Closing Date. The Company Seller may cure Monetary Defects, and any Additional Exceptions that the Company elects to cure, Defects by any of the following methods to the extent applicablemethods: (i) removing the payment and release of such Monetary Defect or applicable Additional Exceptions of record; (ii) posting a bond under Chapter 108 with respect to any mechanic’s lien which causes a such Monetary Defect to cease to be a Lien on the Real Property; or (iii) providing indemnification to the Title Insurer against adverse final adjudication of any Monetary Defect or such Additional Exception and having the Title Insurer provide an endorsement, if applicable, the Title Policy which deletes such Monetary Defect or such Additional Exception as an exception exception; or (iv) an adjustment to coveragethe Purchase Price providing Buyer with a credit for the amount of such Monetary Defect.

Defects Arising After the Effective Date. (a) The Buyers shall cause the UCC Search shall and the Title Commitment to be updated by the Company not earlier than thirty (30) days and not later than ten fifteen (1015) business days prior to the Closing Date. The Endorsement, if Buyer elects to obtain such Endorsement, shall be updated by Buyer not earlier than thirty (30) days and not later than ten (10) days prior to the Closing DateClosing. If the updated UCC Search and/or Endorsement, if applicable, Title Commitment discloses defects in title of the Real Property and the Parcel Interest not shown by (i) the applicable Title PolicyCommitment, (ii) UCC Search, (iii) the Company Seller Disclosure Letter, (iv) the Title Commitment Letter or (v) this Agreement which, in any case, render fee simple title to the Real Property uninsurable which are not Permitted Liens (at ordinary rates) (“Non-Monetary Defects”), or, if the Real Property should become subject to a Monetary Defect (together with any Non-Monetary Defects, “Additional Exceptions”), Buyer Buyers may object to such Additional Exceptions by delivering to the Company Sellers an itemized written notice of Buyer’s Buyers’ objection to such Additional Exceptions (“Defect Notice”) within fifteen five (155) business days after the date of receipt by Buyer Buyers of the updated Endorsement, if applicable, Title Commitment or UCC Search or, if earlier, the Closing Date (the “Notice Period”). Additional Exceptions will not be deemed to include any Permitted Liens or Permitted Encumbrances. Buyer’s Buyers’ failure to deliver a Defect Notice during the Notice Period Period, or Buyers’ failure to deliver a Defect Notice as to any Additional Exceptions during the Notice Period, shall be deemed a waiver of Buyer’s Buyers’ right to object to such Defect(s)Additional Exceptions, and Buyer Buyers shall then accept such title as is described in the Endorsement Title Commitment and UCC Search, as updated, without reserving any claim against the Company Sellers for such Defect(s); provided that Additional Exceptions, and such a failure Additional Exceptions shall not limit any claim that Buyer may have with respect to a breach of the Company’s obligations pursuant to Section 9.1(d) hereof)constitute Permitted Liens hereunder. (b) If Buyer provides Buyers provide a Defect Notice to the Company Sellers during the Notice Period, the Company Sellers shall have five (5) business days after receipt of the Defect Notice within which to give written notice to Buyer Buyers as to whether the Company will Sellers elect to cure any Additional Exceptions. The Company shall be under no obligation to remove any Additional Exceptions that are not Monetary Defects (and that are not created as a consequence of a breach of the Company’s obligations pursuant to Section 9.1(d) hereof), and any refusal of the Company to do so shall not be a default of the Company under this Agreement. Failure to notify Buyer Buyers in writing within such period of the Company’s Sellers’ election shall be deemed the Company’s Sellers’ election not to cure any such Additional Exceptions. If the Company electsSellers elect, in its their sole discretion, to cure any Additional Exceptions, which cure may be effected by causing the Company Title Insurer to insure over such matter, Sellers shall have thirty (30) days after receipt of the Defect Notice to cure any such Additional Exceptions which Company has it elected to cure, and the Closing Date shall, if necessary, be extended accordingly. Buyer Buyers shall have five (5) business days following either receipt of the Company’s Sellers’ notice electing not to cure any Additional Exceptions or the date on which the Company is Sellers are deemed to have elected not to cure any Additional Exceptions in which to elect (in each case, without limitation to any claim that Buyer may have with respect to a breach of the Company’s obligations pursuant to Section 9.1(d) hereof) either to (i) waive its objection to the any Additional Exceptions that the Company does Sellers do not or is are deemed not to elect to cure and to proceed with Closingsuch Additional Exceptions shall constitute Permitted Liens hereunder; or (ii) terminate this Agreement upon written notice to the Company Sellers and Escrow Agent. The Company Except if and to the extent that Sellers elect to cure any Additional Exceptions, Sellers shall be obligated under no obligation to cure Monetary Defects in accordance with Section 13.2(c). (c) The Company shall be obligated to cure monetary Liens encumbering the Real Property (other than any non-delinquent Taxes and assessments and any monetary Liens created or suffered by Buyer or consented to by Buyer), including financing liens or encumbrances created by, under or through or the Company or that are held by the Company or any of its Affiliates (“Monetary Defects”) in the manner provided below. In order to cure a Monetary Defect, or any remove Additional Exception that the Company elects to cure in accordance with this Article XIII, the Company shall have the option to extend the Closing Date for a period of thirty (30) days, by giving written notice of such extension election to Buyer and Escrow Agent on or prior to the Closing Date. The Company may cure Monetary DefectsExceptions, and any failure or refusal of Sellers to do so shall not be a default of Sellers hereunder. Sellers may cure Additional Exceptions that the Company elects to cure, by any of the following methods to the extent applicablemethods: (i) removing the Monetary Defect or applicable payment and release of such Additional Exceptions Exception of record; (ii) posting a bond which causes a Monetary such Additional Defect to cease to be a Lien on the Real Property; or (iii) providing indemnification to causing the Title Insurer against adverse final adjudication of any Monetary Defect or such Additional Exception and having the Title Insurer provide an endorsement, if applicable, which deletes such Monetary Defect or to (A) delete such Additional Exception as an exception in the Title Policy, (B) insure over such Additional Exception in the Title Policy or (C) otherwise provide in the Title Policy affirmative coverage reasonably satisfactory to coverageCC Buyer with respect to such Additional Exception.