Common use of Exceptions to Title Clause in Contracts

Exceptions to Title. (a) Attached as Exhibit “D” is CWI’s final form of pro forma title insurance policy, incorporating the data described in the survey, and including all endorsements thereto and all other insurance provisions as mutually agreed upon between CWI and the Title Company (the “Pro Forma Title Policy”), which is satisfactory to CWI in all respects. CWI acknowledges and agrees that the (i) liens, encumbrances or other exceptions to title set forth in the Pro Forma Title Policy (the “Title Exceptions”), (ii) all encroachments by improvements from adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines, rights-of-way or easements (to the extent in violation thereof) or other survey defects (the “Survey Defects”) set forth on the Pro Forma Title Policy, and (iii) all matters shown in the Survey shall collectively constitute “Permitted Exceptions” to title to the Land (the “Permitted Exceptions”). (b) If any update of the Title Commitment delivered to CWI after the Effective Date discloses any new Title Exception which was not disclosed in the Pro Forma Title Policy (a “New Title Exception”), or any update of the Survey delivered to CWI after the Effective Date discloses any new Survey Defect which was not disclosed in the Survey delivered to CWI prior to the Effective Date (a “New Survey Defect” and together with any New Title Exception, the “Unpermitted Exceptions”), and such New Title Exception or New Survey Defect was not caused by CWI, then CWI shall have the right to request WPPI to remove or cure such New Title Exception or New Survey Defect at or prior to Closing by providing written notice to WPPI promptly after determining (in CWI’s sole but reasonable discretion) that such New Title Exception or New Survey Defect is not acceptable to CWI (the “New Title and Survey Objection Notice”). The terms New Title Exception and New Survey Defect shall not include (i) exceptions or defects that do not impair the marketability of title to the Real Property, (ii) easements or agreements with a benefit to the operation of the Hotel, such as utility and reciprocal parking easements or (iii) easements or agreements which WPPI became legally obligated to execute prior to the Effective Date and ultimately placed of record, such as the Tunnel Easements (collectively, the “Acceptable Matters”); provided, however, that the Acceptable Matters shall expressly exclude any liens of record encumbering the marketability of title arising as the result of or in connection with the Xxxxx dispute, the Construction Contract and/or the Architect Agreement. Notwithstanding anything in this Agreement to the contrary (including, without limitation, the terms of Section 2.8.3(c)), WPPI agrees that the following shall in all events constitute Unpermitted Exceptions which shall be removed from title by WPPI (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder): (i) any mechanics liens or judgments arising therefrom relating to Seller’s construction and/or development of the Hotel unless discharged by Closing pursuant to the posting of a bond or bonds in accordance with RCW 60.04.161, and (ii) subject to prorations, ad valorem real property taxes which constitute Title Exceptions which would be delinquent if unpaid at Closing, and if any such taxes are payable in installments, such obligation shall apply to all such installments which would be payable prior to or at Closing. (c) Subject to Section 2.8.3(b) above, if CWI provides a New Title and Survey Objection Notice to WPPI, WPPI may elect, by providing written notice (the “New Title and Survey Election Notice”) to CWI within the earlier of (i) five (5) business days after WPPI’s receipt of such New Title and Survey Objection Notice or (ii) the Closing, to (A) accept such New Title Exception or New Survey Defect as an additional Unpermitted Exception to be removed at or prior to Closing, or (B) refuse to remove or cure such New Title Exception or New Survey Defect; provided, however, that if (1) WPPI or any Person on behalf of WPPI caused such New Title Exception or New Survey Defect, or (2) such New Title Exception or New Survey Defect, whether or not caused by WPPI, may be removed by the payment of liquidated amounts not in excess of $100,000 or the posting of a statutory bond with collateral not in excess of $150,000, then in each such instance, such New Title Exception or New Survey Defect shall constitute an Unpermitted Exception and WPPI shall be obligated to remove or cure such New Title Exception or New Survey Defect at or prior to Closing (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder). To the extent the New Title Exception relates to a lien filed against the Property that WPPI is obligated or elects to discharge and such lien was filed against the Property within ten (10) business days of the Target Closing Date or the Outside Closing Date, as applicable, WPPI shall have the right to elect by written notice to CWI to extend the Target Closing Date or the Outside Closing Date, as applicable, ten (10) calendar days to allow WPPI the ability to remove or cure such New Title Exception. If WPPI does not provide a New Title and Survey Election Notice to CWI within such time period, then WPPI shall be deemed to have elected to accept the New Title Exception or New Survey Defect as an Unpermitted Exception pursuant to clause (A) of the preceding sentence. If WPPI elects not to remove or cure (such cure to be subject to the reasonable approval of CWI) a New Title Exception or New Survey Defect, then CWI shall have the right to elect, by providing written notice (the “New Title and Survey Response Notice”) to WPPI within the earlier of five (5) business days after CWI’s receipt of the New Title and Survey Election Notice or the Closing to: (x) terminate this Agreement whereupon this Agreement shall automatically terminate and become null and void, and of no further force and effect, the Escrow Agent shall immediately return the Good Faith Deposit to CWI and the Parties shall have no further obligations under this Agreement, except as shall expressly survive the termination hereof or (y) proceed to Closing pursuant to this Agreement and accept title to the Real Property, subject to such New Title Exception or New Survey Defect which thereafter shall be deemed to constitute a Permitted Exception. If CWI does not provide a New Title and Survey Response Notice to WPPI within such time period, CWI shall be deemed to have elected to proceed to Closing pursuant to this Agreement and accept title to the Real Property subject to such New Title Exception or New Survey Defect pursuant to clause (y) of the preceding sentence.

Exceptions to Title. (a) Attached as Exhibit “D” is CWI’s final form of pro forma title insurance policy, incorporating the data described in the survey, and including all endorsements thereto and all other insurance provisions as mutually agreed upon between CWI and the Title Company (the “Pro Forma Title Policy”), which is satisfactory to CWI in all respects. CWI acknowledges and agrees that the (i) liens, encumbrances or other Permissible exceptions to title set forth in shall include the Pro Forma Title Policy (the “Title Exceptions”), (ii) all encroachments by improvements from adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines, rights-of-way or easements (to the extent in violation thereof) or other survey defects (the “Survey Defects”) set forth on the Pro Forma Title Policy, and (iii) all matters shown in the Survey shall collectively constitute “Permitted Exceptions” to title to the Land following (the “Permitted Exceptions”): the lien of general taxes and special assessments, if any; zoning laws and building codes and ordinances; easements (apparent or of record) which do not underlie any buildings; and covenants and restrictions of record which are not violated by the existing improvements or the present uses of the Premises and which do not restrict reasonable use of the Premises; all existing leases for all or any part of the Premises (the “Existing Leases”).; and all applicable covenants and restrictions contained in the following: (i) that certain Airport Phase I Quit Claim Deed dated July 12, 2007 from the United States of America, acting by and through the Secretary of the Air Force (the “Government”), to the Village of Rantoul for Hangar 1 (the “Hangar 1 Quit Claim Deed”); (ii) that certain Airport Phase II Quit Claim Deed dated July 23, 2007 from the Government to the Village for 1 Aviation (the “1 Aviation Deed”); and (iii) that certain Quit Claim Deed from the Government to the Village of Rantoul dated August 17, 2018 for Hangars 2 and 3 (the “Hangars 2 (b) If any update of the Title Commitment delivered to CWI after the Effective Date discloses any new Title Exception which was not disclosed in the Pro Forma Title Policy (a “New Title Exceptionand 3 Quit Claim Deed”), copies of which Existing Leases, Xxxxxx 0 Quit Claim Deed, 1 Aviation Deed and Hangars 2 and 3 Quit Claim Deed have been provided to or any update of the Survey delivered to CWI after the Effective Date discloses any new Survey Defect which was not disclosed in the Survey delivered to CWI prior otherwise been made available to the Effective Date (a “New Survey Defect” and together with any New Title Exception, the “Unpermitted Exceptions”), and such New Title Exception or New Survey Defect was not caused by CWI, then CWI shall have the right to request WPPI to remove or cure such New Title Exception or New Survey Defect at or prior to Closing by providing written notice to WPPI promptly after determining (in CWI’s sole but reasonable discretion) that such New Title Exception or New Survey Defect is not acceptable to CWI (the “New Title and Survey Objection Notice”). The terms New Title Exception and New Survey Defect shall not include (i) exceptions or defects that do not impair the marketability of title to the Real Property, (ii) easements or agreements with a benefit to the operation of the Hotel, such as utility and reciprocal parking easements or (iii) easements or agreements which WPPI became legally obligated to execute prior to the Effective Date and ultimately placed of record, such as the Tunnel Easements (collectively, the “Acceptable Matters”); provided, however, that the Acceptable Matters shall expressly exclude any liens of record encumbering the marketability of title arising as the result of or in connection with the Xxxxx dispute, the Construction Contract and/or the Architect Agreement. Notwithstanding anything in this Agreement to the contrary (including, without limitation, the terms of Section 2.8.3(c)), WPPI agrees that the following shall in all events constitute Unpermitted Exceptions which shall be removed from title by WPPI (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder): (i) any mechanics liens or judgments arising therefrom relating to Seller’s construction and/or development of the Hotel unless discharged by Closing pursuant to the posting of a bond or bonds in accordance with RCW 60.04.161, and (ii) subject to prorations, ad valorem real property taxes which constitute Title Exceptions which would be delinquent if unpaid at Closing, and if any such taxes are payable in installments, such obligation shall apply to all such installments which would be payable prior to or at ClosingBuyer. (c) Subject Except for the Permitted Exceptions, Seller agrees that it will not further encumber the Real Estate in any manner that will affect title to Section 2.8.3(bthe Real Estate. (d) aboveIf title evidence discloses exceptions other than the Permitted Exceptions, if CWI provides a New Title and Survey Objection Notice to WPPI, WPPI may elect, by providing Buyer shall give written notice (the “New Title and Survey Election Notice”) to CWI within the earlier of (i) five (5) business days after WPPI’s receipt of such New Title and Survey Objection Notice or (ii) the Closingexceptions to Seller within a reasonable time. Seller shall have a reasonable time to have such title exceptions removed, to (A) accept or, any such New Title Exception or New Survey Defect as an additional Unpermitted Exception to be removed at or prior to Closing, or (B) refuse to remove or cure such New Title Exception or New Survey Defect; provided, however, that if (1) WPPI or any Person on behalf of WPPI caused such New Title Exception or New Survey Defect, or (2) such New Title Exception or New Survey Defect, whether or not caused by WPPI, exception which may be removed by the payment of liquidated amounts not in excess of $100,000 or money may be cured by paying the posting of a statutory bond with collateral not in excess of $150,000, then in each such instance, such New Title Exception or New Survey Defect shall constitute an Unpermitted Exception and WPPI shall be obligated to remove or cure such New Title Exception or New Survey Defect amount due at or prior to Closing (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder). To the extent the New Title Exception relates to a lien filed against the Property that WPPI is obligated or elects to discharge and such lien was filed against the Property within ten (10) business days of the Target Closing Date or the Outside Closing Date, as applicable, WPPI shall have the right to elect by written notice to CWI to extend the Target Closing Date or the Outside Closing Date, as applicable, ten (10) calendar days to allow WPPI the ability to remove or cure such New Title ExceptionClosing. If WPPI does not provide a New Title and Survey Election Notice Seller is unable to CWI within cure any such time periodexception, then WPPI shall be deemed to have elected to accept the New Title Exception or New Survey Defect as an Unpermitted Exception pursuant to clause (A) of the preceding sentence. If WPPI elects not to remove or cure (such cure to be subject to the reasonable approval of CWI) a New Title Exception or New Survey Defect, then CWI shall have the right to elect, by providing written notice (the “New Title and Survey Response Notice”) to WPPI within the earlier of five (5) business days after CWI’s receipt of the New Title and Survey Election Notice or the Closing to: (x) terminate this Agreement whereupon this Agreement shall automatically terminate and become null and void, and may be terminated in the sole discretion of no further force and effect, the Escrow Agent shall immediately return the Good Faith Deposit to CWI and the Parties shall have no further obligations under this Agreement, except as shall expressly survive the termination hereof or (y) proceed to Closing pursuant to this Agreement and accept title to the Real Property, subject to such New Title Exception or New Survey Defect which thereafter shall be deemed to constitute a Permitted Exception. If CWI does not provide a New Title and Survey Response Notice to WPPI within such time period, CWI shall be deemed to have elected to proceed to Closing pursuant to this Agreement and accept title to the Real Property subject to such New Title Exception or New Survey Defect pursuant to clause (y) of the preceding sentenceBuyer.

Exceptions to Title. (a) Attached as Exhibit “D” is CWI’s final form of pro forma title insurance policyWith respect to each Property, incorporating the data described in the surveyBuyer shall be obligated to accept title, and including all endorsements thereto and all other insurance provisions as mutually agreed upon between CWI and the Title Company (the “Pro Forma Title Policy”), which is satisfactory to CWI in all respects. CWI acknowledges and agrees that the (i) liens, encumbrances or other exceptions to title set forth in the Pro Forma Title Policy (the “Title Exceptions”), (ii) all encroachments by improvements from adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines, rights-of-way or easements (subject to the extent in violation thereof) or other survey defects (the “Survey Defects”) set forth on the Pro Forma Title Policy, and (iii) all matters shown in the Survey shall collectively constitute “Permitted Exceptions” to title to the Land following exceptions (the “Permitted Exceptions”).): (b) If any update of 5.2.1 Real estate taxes and assessments not yet delinquent; 00 Xxx Xxxxxxxxxx, Xxxx Xxxx Xxxx, Xxxx Xxxxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx The Charleston Cedar Hills, Utah 5.2.2 The applicable New Management Agreement; and 5.2.3 Such other exceptions to title or survey exceptions for such Property as are included in the Preliminary Title Report or by the Title Commitment delivered to CWI after Company as a result of matters on the Effective Date discloses any new Title Exception which was not disclosed in the Pro Forma Title Policy (a “New Title Exception”)Survey, or as otherwise expressly permitted under this Agreement, or any update exceptions resulting from the acts of the Survey delivered to CWI after the Effective Date discloses Buyer or its agents or representatives. If Buyer disapproves any new Survey Defect which was not disclosed lien or other matter reflected in the Survey delivered Preliminary Title Reports, Buyer shall deliver written notice to CWI Sellers on or prior to that date which is ten (10) Business Days prior to the Effective Date expiration of the Due Diligence Period identifying with specificity such disapproved title matters (a “New Survey Defect” and together with any New Buyer’s Title Exception, the “Unpermitted Exceptions”), and such New Title Exception or New Survey Defect was not caused by CWI, then CWI shall have the right to request WPPI to remove or cure such New Title Exception or New Survey Defect at or prior to Closing by providing written notice to WPPI promptly after determining (in CWI’s sole but reasonable discretion) that such New Title Exception or New Survey Defect is not acceptable to CWI (the “New Title and Survey Objection Notice”). The terms New Sellers shall have five (5) Business Days from the date of such Buyer’s Title Exception Objection Notice in which to advise Buyer whether or not they are prepared to cure the same prior to the Closing Date (which cure may be effected by payment and New Survey Defect discharge of the objectionable item or by causing the Title Company to remove the same as an exception or affirmatively insure over such item). Failure by Sellers to respond within such five (5) Business Day period shall be deemed Sellers’ election to not include to cure any matters set forth in Buyer’s Title Objection Notice. In the event Sellers elect (or are deemed to have elected) not to cure any matters set forth in Buyer’s Title Objection Notice, Buyer shall have until the expiration of the Due Diligence Period in which to advise Sellers in writing of Buyer’s election (a) to waive the matters to which Buyer objected and which Sellers have elected (or are deemed to have elected) not to cure and to proceed to Closing or (b) to terminate this Agreement in which event the Deposit shall be returned to Buyer. In the event that this Agreement is not terminated pursuant to Section 6.4 below, Buyer shall be deemed to have waived all rights to terminate this Agreement pursuant to this paragraph. Except for the Permitted Exceptions, Sellers shall (i) exceptions pay, or defects that do not impair cause to be paid, all mortgages and deeds of trust recorded against the marketability of title to the Real Property, Properties and (ii) easements satisfy or agreements with a benefit remove (or cause to the operation of the Hotel, such as utility and reciprocal parking easements be satisfied or (iiiremoved) easements all mechanic’s or agreements which WPPI became legally obligated to execute materialmen’s liens claimed against any Property arising from work performed prior to the Effective Date and ultimately placed of record, such as the Tunnel Easements (collectively, the “Acceptable Matters”)Closing; provided, however, that the Acceptable Matters shall expressly exclude any liens of record encumbering the marketability of title arising as the result of or in connection with the Xxxxx dispute, the Construction Contract and/or the Architect Agreement. Notwithstanding anything in this Agreement to the contrary (including, without limitation, the terms of Section 2.8.3(c)), WPPI agrees that the following shall in all events constitute Unpermitted Exceptions which shall be removed from title by WPPI (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder): (i) any mechanics liens or judgments arising therefrom relating to Seller’s construction and/or development of the Hotel unless discharged by Closing Sellers’ obligations pursuant to the posting of a bond or bonds in accordance with RCW 60.04.161, and (ii) subject to prorations, ad valorem real property taxes which constitute Title Exceptions which would be delinquent if unpaid at Closing, and if any such taxes are payable in installments, such obligation this sentence shall not apply to all such installments which would be payable prior to any Liens arising out of acts or at Closing. (c) Subject to Section 2.8.3(b) above, if CWI provides a New Title and Survey Objection Notice to WPPI, WPPI may elect, omissions taken by providing written notice (the “New Title and Survey Election Notice”) to CWI within the earlier of (i) five (5) business days after WPPI’s receipt of such New Title and Survey Objection Notice or (ii) the Closing, to (A) accept such New Title Exception or New Survey Defect as an additional Unpermitted Exception to be removed at or prior to Closing, or (B) refuse to remove or cure such New Title Exception or New Survey Defect; provided, however, that if (1) WPPI or any Person on behalf of WPPI caused such New Title Exception or New Survey Defect, or (2) such New Title Exception or New Survey Defect, whether or not caused by WPPI, may be removed by the payment of liquidated amounts not in excess of $100,000 or the posting of a statutory bond with collateral not in excess of $150,000, then in each such instance, such New Title Exception or New Survey Defect Buyer. Buyer shall constitute an Unpermitted Exception and WPPI shall be obligated to remove or cure such New Title Exception or New Survey Defect at or prior to Closing (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder). To the extent the New Title Exception relates to a lien filed against the Property that WPPI is obligated or elects to discharge and such lien was filed against the Property within ten (10) business days of the Target Closing Date or the Outside Closing Date, as applicable, WPPI shall have the right to elect by written notice to CWI to extend the Target Closing Date or the Outside Closing Date, as applicable, ten (10) calendar days to allow WPPI the ability to remove or cure such New Title Exception. If WPPI does not provide a New Title and Survey Election Notice to CWI within such time period, then WPPI shall be deemed to have elected to accept the New Title Exception or New Survey Defect as an Unpermitted Exception pursuant to clause (A) of the preceding sentence. If WPPI elects not to remove or cure (such cure to be subject to the reasonable approval of CWI) a New Title Exception or New Survey Defect, then CWI shall have the right to elect, by providing written notice (the “New Title and Survey Response Notice”) to WPPI within the earlier of five (5) business days after CWI’s receipt of the New Title and Survey Election Notice or the Closing to: (x) terminate this Agreement whereupon this Agreement shall automatically terminate and become null and void, and of no further force and effect, the Escrow Agent shall immediately return the Good Faith Deposit to CWI and the Parties shall have no further obligations under this Agreement, except as shall expressly survive the termination hereof or (y) proceed to Closing pursuant to this Agreement and accept review title to the Real Properties by obtaining prior to the expiration of the Due Diligence Period the commitment of Title Company to issue to Buyer on the Closing Date the Title Policy for each Property. If Buyer desires to obtain coverage over survey matters in the Title Policy for any Property, subject to such New Title Exception or New Survey Defect which thereafter Buyer shall be deemed to constitute a Permitted Exception. If CWI does not provide a New Title and Survey Response Notice to WPPI within such time period, CWI shall be deemed to have elected to proceed to Closing pursuant to this Agreement and accept title deliver to the Real Title Company prior to the Closing Date a current ALTA survey for such Property subject certified by a licensed surveyor in the State of Utah sufficient to such New permit or cause the Title Exception or New Survey Defect pursuant Company to clause (y) of insure against survey matters at the preceding sentenceClosing.

Exceptions to Title. (a) Attached as Exhibit “D” is CWI’s final form of pro forma title insurance policyDuring the Due Diligence Period, incorporating the data described CWI shall (i) determine, in the surveyits sole and absolute discretion, and including all endorsements thereto and all other insurance provisions as mutually agreed upon between CWI notify Seller and the Title Company in writing (the “Pro Forma Title Policyand Survey Objection Notice”), ) which is satisfactory to CWI in all respects. CWI acknowledges and agrees that the (iA) liens, encumbrances or other exceptions to title set forth in the Pro Forma Title Policy (the “Title Exceptions”), and (iiB) all encroachments by improvements from on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines, rights-of-way lines or easements (to the extent in violation thereof) or other survey defects (the “Survey Defects”) set forth on the Pro Forma Title Policy), and (iii) all matters shown in the Survey shall collectively constitute “Permitted Exceptions” to title to the Land (the “Permitted Exceptions”), and (ii) endeavor to obtain from the Title Company a pro forma title insurance policy, including all endorsements thereto and all other insurance provisions required by CWI in such title insurance policy (the “Pro Forma Title Policy”), or enter into a side letter agreement with Seller setting forth which Title Exceptions and Survey Defects shall constitute the Permitted Exceptions (the “Title and Survey Side Letter”). If CWI does not obtain the Pro Forma Title Policy or Title and Survey Side Letter acceptable to CWI, in its sole and absolute discretion, prior to the expiration of the Due Diligence Period (the “Title and Survey Review Period”), CWI shall have the right to terminate this Agreement in accordance with Section 2.8.1. If CWI does not obtain the Pro Forma Title Policy or Title and Survey Side Letter acceptable to CWI, in its sole and absolute discretion, prior to the expiration of the Title and Survey Review Period and does not terminate this Agreement pursuant to this Section 2.9.3(a), CWI shall be deemed to have waived all objections to any Title Exceptions disclosed in the Title Commitment and Survey Defects disclosed in the Survey, in which case such Title Exceptions and Survey Defects shall be deemed to be Permitted Exceptions. (b) To the extent that Seller and CWI enter into a Title and Survey Side Letter, all Title Exceptions and Survey Defects that Seller agrees to remove as identified in such Title and Survey Side Letter, if any, shall constitute “Unpermitted Exceptions” to title to the Real Property (the “Unpermitted Exceptions”). Seller shall remove such Unpermitted Exceptions at or prior to Closing by removing such Unpermitted Exception from title (with the parties expressly acknowledging and agreeing that Seller’s causing the Title Company to commit to insure over such Unpermitted Exception in the Title Policy shall not constitute removal unless such insuring over by the Title Company is in form and substance acceptable to CWI in its sole and absolute discretion). Notwithstanding anything in this Agreement to the contrary, Seller agrees that the following shall in all events constitute Unpermitted Exceptions which shall be removed by Seller (the failure or refusal of which by Seller at or prior to Closing shall constitute a default by Seller hereunder): (i) any judgments or mechanics or similar liens, (ii) excluding the Assumed Indebtedness if CWI elects to assume such Assumed Indebtedness pursuant to Section 2.13, any mortgages, deeds of trust or other security interests for any financing incurred by Seller, and (iii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at Closing, and if any such Taxes are payable in installments, such obligation shall apply to all such installments which would be payable whether prior to or after Closing. (c) If any update of the Title Commitment delivered to CWI after the Effective Date expiration of the Title and Survey Review Period discloses any new Title Exception which was is not disclosed in the Pro Forma Title Policy Commitment provided to CWI prior to the expiration of the Title and Survey Review Period (a “New Title Exception”), or any update of the Survey delivered to CWI after the Effective Date expiration of the Title and Survey Review Period discloses any new Survey Defect which was is not disclosed in the Survey delivered to CWI prior to the Effective Date expiration of the Title and Survey Review Period (a “New Survey Defect” and together with any New Title Exception, the “Unpermitted Exceptions”), and such New Title Exception or New Survey Defect was not caused by CWI or any Person on behalf of CWI, then CWI shall have the right to request WPPI Seller to remove or cure such New Title Exception or New Survey Defect at or prior to Closing by providing written notice to WPPI Seller promptly after determining (in CWI’s its sole but reasonable discretion) discretion that such New Title Exception or New Survey Defect is not acceptable to CWI (the “New Title and Survey Objection Notice”). The terms New Title Exception and New Survey Defect shall not include (i) exceptions or defects that do not impair the marketability of title to the Real Property, (ii) easements or agreements with a benefit to the operation of the Hotel, such as utility and reciprocal parking easements or (iii) easements or agreements which WPPI became legally obligated to execute prior to the Effective Date and ultimately placed of record, such as the Tunnel Easements (collectively, the “Acceptable Matters”); provided, however, that the Acceptable Matters shall expressly exclude any liens of record encumbering the marketability of title arising as the result of or in connection with the Xxxxx dispute, the Construction Contract and/or the Architect Agreement. Notwithstanding anything in this Agreement to the contrary (including, without limitation, the terms of Section 2.8.3(c)), WPPI agrees that the following shall in all events constitute Unpermitted Exceptions which shall be removed from title by WPPI (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder): (i) any mechanics liens or judgments arising therefrom relating to Seller’s construction and/or development of the Hotel unless discharged by Closing pursuant to the posting of a bond or bonds in accordance with RCW 60.04.161, and (ii) subject to prorations, ad valorem real property taxes which constitute Title Exceptions which would be delinquent if unpaid at Closing, and if any such taxes are payable in installments, such obligation shall apply to all such installments which would be payable prior to or at Closing. (c) Subject to Section 2.8.3(b) above, if If CWI provides a New Title and Survey Objection Notice to WPPISeller, WPPI Seller may elect, by providing written notice (the “New Title and Survey Election Notice”) to CWI within the earlier of (i) five (5) business days after WPPISeller’s receipt of such New Title and Survey Objection Notice or (ii) the Closing, to (Ai) accept such New Title Exception or New Survey Defect as an additional Unpermitted Exception to be removed at or prior to Closing, or (Bii) refuse to remove or cure such New Title Exception or New Survey Defect; provided, however, that if (1A) WPPI Seller or any Person on behalf of WPPI Seller caused such New Title Exception or New Survey Defect, or (2B) Seller may remove or cure such New Title Exception or New Survey Defect, whether or not caused Defect by WPPI, may be removed by the payment of liquidated amounts not in excess of $100,000 or the posting of a statutory bond with collateral not in excess of $150,000amounts, then in each such instance, such New Title Exception or New Survey Defect shall constitute an Unpermitted Exception and WPPI Seller shall be obligated to remove or cure such New Title Exception or New Survey Defect at or prior to Closing (the failure or refusal of which by WPPI at or prior to Closing shall constitute a default by WPPI hereunder). To the extent the New Title Exception relates to a lien filed against the Property that WPPI is obligated or elects to discharge and such lien was filed against the Property within ten (10) business days of the Target Closing Date or the Outside Closing Date, as applicable, WPPI shall have the right to elect by written notice to CWI to extend the Target Closing Date or the Outside Closing Date, as applicable, ten (10) calendar days to allow WPPI the ability to remove or cure such New Title ExceptionClosing. If WPPI Seller does not provide a New Title and Survey Election Notice to CWI within such time period, then WPPI Seller shall be deemed to have elected to accept the New Title Exception or New Survey Defect as an Unpermitted Exception pursuant to clause (Ai) of the preceding sentence. If WPPI Seller elects not to remove or cure (such cure to be subject to the reasonable approval of CWI) a New Title Exception or New Survey Defect, then CWI then shall have the right to elect, by providing written notice (the “New Title and Survey Response Notice”) to WPPI Seller within the earlier of five ten (510) business days after CWI’s receipt of the New Title and Survey Election Notice or the Closing to: to (x1) terminate this Agreement whereupon this Agreement shall automatically terminate and become null and void, and of no further force and effect, the Escrow Agent shall immediately return the Good Faith Deposit (including all interest thereon) to CWI and the Parties shall have no further obligations under this Agreement, except as shall expressly survive the termination hereof or (y2) proceed to Closing pursuant to this Agreement and accept title to the Real Property, subject to such New Title Exception or New Survey Defect which thereafter shall be deemed to constitute a Permitted Exception. If CWI does not provide a New Title and Survey Response Notice to WPPI Seller within such time period, CWI shall be deemed to have elected to proceed to Closing pursuant to this Agreement and accept title to the Real Property subject to such New Title Exception or New Survey Defect pursuant to clause (y2) of the preceding sentence.