Common use of Failure of Conditions Clause in Contracts

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove any of the conditions set forth in Section 4.1 within the time specified, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject 8.1 In the event Sellers shall not be able to Section 6.4convey the Landlord's Estoppels and title to the Assets on the date of Closing in accordance with the provisions of this Agreement for any reason whatsoever, should Buyer disapprove any or if all of the conditions precedent set forth in Section 4.1 within the time specified6 hereof have not been satisfied in full at or prior to Closing, then Buyer shall have the powerfollowing options (the "Termination Options"), exercisable in its sole and absolute discretion by giving of written notice to SellerSellers at or prior to the Closing, of either of the following: a. To or at such earlier date as may be specified elsewhere in this Agreement, if applicable: (1) Buyer may terminate this Agreement and recover any amounts paid on account of Agreement, in which case the Purchase Price, including the Deposit, less the Independent Considerationparties shall have no other rights or obligations hereunder, or any documents delivered (2) Buyer may waive its objections hereunder and proceed with the transaction pursuant to the provisions remaining terms and conditions of this Agreement, in which event the parties any such waived objection shall be relieved and released of any further dutiesbecome a Permitted Exception, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove in such event the Purchase Price shall automatically be reduced by the amount of any such mortgage, judgment or other Lien other than a Permitted Exception not removed at or before Closing by Sellers, together with interest and penalties thereon, if any, and together with any additional title insurance costs or premiums imposed by Title Insurer by reason thereof. Any provision of this Section 8 to the contrary notwithstanding, if Sellers' inability to convey title or the failure of condition is due to a breach by Sellers in default of their obligations hereunder, then Buyer's remedies in respect thereof shall not be limited by the foregoing provisions of this Section 8 and Buyer shall be deemed approval thereof; provided furtherpermitted to exercise forthwith any right, power or remedy available to Buyer by law, in equity or by contract. 8.2 If all of the conditions precedent to closing set forth in Section 7 hereof have not been satisfied at or prior to Closing, Sellers may terminate this Agreement, in which case the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination, provided, however, that should in such event Sellers shall be reimbursed by Buyer disapprove of any exception to for all reasonable title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, insurance company charges and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained reasonable survey charges incurred in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement connection with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition transactions contemplated by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer Recipient disapprove any of the conditions set forth in Section 4.1 within the time specified, Buyer Recipient shall have the power, exercisable in its sole and absolute discretion by giving of written notice to SellerContributor, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, Deposit less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for SellerContributor’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that BuyerRecipient’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer Recipient disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer Recipient shall first give five one (51) business days day’s written notice of the Title Defect which it has disapproved, and Seller Contributor shall have an additional five one (51) business days day after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller Contributor shall give written notice to Buyer Recipient within such five one (51) business day period whether it is willing or able to correct such Title Defect. If Seller Contributor is unwilling or unable to correct any such Title Defect, Buyer Recipient shall have the right to exercise the remedy contained in Section 4.2(a). If Seller Contributor states that it is willing and able to do so, then Seller Contributor shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller Contributor is thereafter unable to correct the Title Defect prior to the Closing, Buyer Recipient shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without BuyerRecipient’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer Recipient shall reduce or eliminate the rights or remedies of Buyer Recipient by reason of any breach of any covenant, representation, or warranty made by Seller Contributor in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller Contributor shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at SellerContributor’s sole cost and expense with no right of reimbursement from BuyerRecipient. If Seller Contributor is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer Recipient shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove In the event that any or all of the conditions Pre-Closing --------------------- Conditions are not satisfied or otherwise waived by Purchaser, in writing, prior to expiration of the applicable time periods set forth above in Section 4.1 within the time specifiedhereof, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To then Purchaser may terminate this Agreement and recover any amounts paid by delivering written notice thereof to Seller on account or before the expiration of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closingapplicable time period; provided, howeverif Purchaser fails to timely deliver any such written notice, that Buyer’s this Agreement shall be deemed automatically terminated and of no further force or effect. Purchaser's failure to so approve or disapprove of any such condition Pre-Closing Condition before the expiration of the applicable time periods shall be deemed approval thereof; provided furtherdisapproval of such Pre-Closing Condition. If Purchaser so elects to terminate this Agreement or this Agreement is automatically terminated, the Deposit and all interest earned thereon shall promptly be returned to Purchaser and Purchaser shall not have any further liability or obligation to Seller hereunder. If Purchaser does not elect to terminate this Agreement due to a failure of any of the Pre-Closing Conditions and notifies Seller in writing that it intends to proceed with the purchase of the Property prior to the expiration of the applicable time periods, subject to the terms and provisions of this Agreement the Deposit shall become non-refundable to Purchaser and the Deposit shall be held in escrow for Seller's benefit, however, that should Buyer disapprove all interest earned thereon after the expiration of the Conditions Period shall be for the Purchaser's benefit. If the Pre-Closing Conditions are satisfied or waived by Purchaser but any exception to title or all of the Closing Conditions are not satisfied or waived by Purchaser on or before the date established for the Closing (as such date may be extended), then Purchaser shall notify Seller in writing of those Closing Conditions which have not been satisfied or otherwise waived by Purchaser (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and "Closing Conditions Failure Notice"). Seller shall have an additional five three (53) business days after receiving Purchaser has delivered to Seller the notice of Title Defect thereafter Closing Conditions Failure Notice (and the Closing shall be extended, if necessary to determine whether it is willing or able to correct give Seller such Title Defect. Seller shall give written notice to Buyer within such five three (53) business day period whether it is willing period) to notify Purchaser in writing of Seller's election either to (a) take such actions as may be necessary to cure such matters to Purchaser's satisfaction prior to the date of Closing (as same may be extended), or able to correct (b) advise Purchaser that Seller will not cure such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have matters (the right to exercise the remedy contained in Section 4.2(a"Seller's Conditions Notice"). If Seller states that it is willing elects not to cure such matters, then within two (2) business days after Purchaser's receipt of the Seller's Conditions Notice (and able the Closing shall be extended, if necessary to give Purchaser such two (2) business day period), Purchaser, at its sole option, may elect to do soany of the following: (1) Purchaser may elect to terminate this Agreement by delivering written notice thereof to Seller, in which event Seller shall promptly cause the return to Purchaser of the Deposit and all interest earned thereon; (2) if the Closing Condition in question is any of those conditions specified in Sections 4.2.2, 4.2.3 or 4.2.4 and Seller is not in any manner responsible for the deviation or failure of such Closing Condition, then Purchaser may elect to terminate this Agreement by delivering written notice thereof to Seller, in which event Seller shall proceed promptly cause the return to correct Purchaser of the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any Deposit and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to interest earned thereon; (3) if the Closing at Seller’s sole cost and expense with no right Condition in question is any of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).those conditions specified

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove If any of the conditions set forth in Section 4.1 within the time specified8.1 is not timely satisfied or waived by Seller in writing, Buyer Seller shall have the power, exercisable in its sole and absolute discretion by giving of written notice right to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant by written notice given to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice following the date for satisfaction of such condition. If any of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it conditions set forth in Section 8.2 is willing not timely satisfied or able to correct such Title Defect. Seller shall give written notice to waived by Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defectin writing, Buyer shall have the right to exercise terminate this Agreement by written notice given to Seller within five (5) business days following the remedy contained in Section 4.2(a)date for satisfaction of such condition. If Seller states that it is willing either party shall so terminate this Agreement, this Agreement and able to do so, then the rights and obligations of Buyer and Seller shall proceed terminate and be of no further force or effect, except as to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, those matters which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything are specifically stated in this Agreement to survive termination, and except as to the rights of the nondefaulting party if the failure of condition shall constitute a default by the other party. In the event that this Agreement is terminated pursuant to the provisions of this Section 8.3, and neither Seller nor Buyer is in default pursuant to this Agreement, the Title Company is hereby instructed to return promptly to the party which placed such items into Escrow all funds (including the Deposit, and all accrued interest thereon, which is to be promptly returned to Buyer) and documents which are held by the Title Company on the date of termination. In the event of any such termination, the Option Payment shall be retained by Seller. Notwithstanding any of the above provisions of Section 8.3 to the contrary, in the event of a termination of this Agreement by reason of a failure of the conditions set forth in Sections 8.1.5, 8.2.5 (by reason of a default of Xxxxx Xxxxxxxx only), or 8.2.7, Seller shall remove any return the Option Payment to Buyer within two (2) business days thereafter. Further, in the event of a termination of this Agreement by reason of the failure of the conditions set forth in Sections 8.1.6 and all monetary encumbrances, deeds of trust, liens, mortgages, etc8., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove In the event any of the conditions to Buyer’s obligation to proceed to the Close of Escrow set forth in this Section 4.1 within 6 or set forth elsewhere in this Agreement shall fail or are otherwise are unsatisfied after Buyer has waived contingencies at the time specifiedexpiration of the Contingency Period, then at Buyer’s option, Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To may terminate this Agreement and recover any amounts paid on account the Escrow created pursuant hereto and the Deposit shall be returned to Buyer. In addition, notwithstanding anything to the contrary herein, if following the expiration of the Contingency Period, a condition to the Close of Escrow for Buyer’s benefit set forth in this Agreement shall fail, then in addition to Buyer’s right to terminate the Agreement in its entirety, Buyer may terminate the Agreement with respect only to the Property for which the condition has failed (in which event the Agreement shall remain in effect for the balance of the Properties except that the Purchase PricePrice shall be reduced to reflect the elimination of a Property and the Deposit shall be allocated to the Purchase Price of the other Properties for which this Agreement has not been terminated); provided that if such termination would not result in the transfer of the Remaining Properties, Sellers shall have the right to deliver written notice to Buyer within three (3) days after receiving Buyer’s partial termination notice stating that Buyer must either proceed with the acquisition of the Properties, including the Deposit, less the Independent ConsiderationRemaining Properties, or any documents delivered pursuant to terminate the provisions of this AgreementAgreement in its entirety, in which event the parties Deposit shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right refunded to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive Buyer (it being agreed that such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall election must be deemed approval thereof; provided further, however, that should made by Buyer disapprove of any exception to title within three (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (53) business days of receiving Seller’s written notice of the Title Defect which it has disapprovedprovided above, and Seller shall have an additional five (5) business days after receiving if Buyer fails to make the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give election by delivering written notice to Buyer Sellers within such five the three (53) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defectdescribed above, Buyer shall be deemed to have made the right election to exercise proceed with the remedy contained in Section 4.2(aacquisition of the Properties, including the Remaining Properties). If Seller states that it is willing and able Buyer elects to do so, then Seller shall proceed to correct the Title Defect terminate this Agreement in whole or in part as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closingaforesaid, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record do so by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement delivering a termination notice to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(aapplicable Seller(s).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove any of If the conditions set forth in Section 4.1 within precedent for the time specified, Buyer benefit of Purchaser shall have the power, exercisable in its sole and absolute discretion by giving of written notice fail to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property met at or prior to the Closing at SellerDate, provided that the same shall not have resulted from the default by Purchaser hereunder (it being understood and agreed that failure to secure the Required Consents shall not, absent the failure to use good faith commercially reasonable efforts, constitute a default on the part of Purchaser hereunder), then Purchaser shall have the right as its sole and exclusive remedy to elect, with such election to be determined in Purchaser’s sole cost and expense with absolute discretion, (i) to terminate this Agreement by providing written notice thereof to Seller, in which event the Deposit (less the amount of the extension fee related to the Existing Debt Extension that Purchaser is expressly required to pay or reimburse hereunder, which amount shall be paid to Seller) shall be immediately returned to Purchaser and the parties shall have no right further rights or obligations under this Agreement except to the extent expressly deemed to survive termination hereof, or (ii) to waive any of reimbursement from Buyerthe conditions precedent which exist for Purchaser’s benefit at the Closing and to proceed to Closing immediately. If the conditions precedent for the benefit of Seller is unwilling or unable shall fail to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property be met at or prior to the ClosingClosing Date, Buyer provided that the same shall not have resulted from the default by Seller hereunder (it being understood and agreed that failure to secure any of the deliverables constituting conditions precedent (other than Seller’s delivery of the deliverables required of it under Section 8.2 hereof) shall not in any event constitute a default on the part of Seller under this Agreement unless the same shall have resulted from a failure by Seller to use the efforts described in, and subject to the limitations of, Section 6.3 above), then Seller shall have the right as its sole and exclusive remedy to exercise elect, with such election to be determined in Seller’s sole and absolute discretion, (i) to terminate this Agreement by providing written notice thereof to Purchaser, in which event the remedy Deposit (less the amount of the extension fee related to the Existing Debt Extension that Purchaser is expressly required to pay or reimburse hereunder, which amount shall be paid to Seller) shall be immediately returned to Purchaser and the parties shall have no further rights or obligations under this Agreement except to the extent expressly deemed to survive termination hereof, or (ii) to waive any of the conditions precedent which exist for Seller’s benefit at the Closing and to proceed with Closing. For the avoidance of doubt, nothing herein contained shall affect the rights and/or remedies of the parties as provided in Section 4.2(a)Article X hereof in the event of a default on the part of Purchaser or Seller under this Agreement.

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove If any of the conditions set forth in Section 4.1 within the time specified8.1 is not timely satisfied or waived by Seller in writing, Buyer Seller shall have the power, exercisable in its sole and absolute discretion by giving of written notice right to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant by written notice given to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice following the date for satisfaction of such condition. If any of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it conditions set forth in Section 8.2 is willing not timely satisfied or able to correct such Title Defect. Seller shall give written notice to waived by Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defectin writing, Buyer shall have the right to exercise terminate this Agreement by written notice given to Seller within five (5) business days following the remedy contained in Section 4.2(a)date for satisfaction of such condition. If Seller states that it is willing either party shall so terminate this Agreement, this Agreement and able to do so, then the rights and obligations of Buyer and Seller shall proceed terminate and be of no further force or effect, except as to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, those matters which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything are specifically stated in this Agreement to survive termination, and except as to the rights of the nondefaulting party if the failure of condition shall constitute a default by the other party. In the event that this Agreement is terminated pursuant to the provisions of this Section 8.3, and neither Seller nor Buyer is in default pursuant to this Agreement, the Title Company is hereby instructed to return promptly to the party which placed such items into Escrow all funds (including the Deposit, and all accrued interest thereon, which is to be promptly returned to Buyer) and documents which are held by the Title Company on the date of termination. In the event of any such termination, the Option Payment shall be retained by Seller. Notwithstanding any of the above provisions of Section 8.3 to the contrary, in the event of a termination of this Agreement by reason of a failure of the conditions set forth in Sections 8.1.5, 8.2.5 (by reason of a default of Seller or 625 Xxxxxxxx only), or 8.2.7, Seller shall remove any return the Option Payment to Buyer within two (2) business days thereafter. Further, in the event of a termination of this Agreement by reason of the failure of the conditions set forth in Sections 8.1.6 and 8.2.8, if Buyer has previously paid the Option Payment to Seller, Seller shall 1. In the event of a default by Seller, the Deposit and all monetary encumbrances, deeds of trust, liens, mortgages, etcinterest accrued thereon and the Option Payment shall be returned to Buyer within two (2) business days thereafter., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject In the event that any or all of the Pre-Closing Conditions are not satisfied or waived within the applicable time periods specified in Section 4.1 above, then Buyer may terminate this Agreement by delivering written notice thereof to Section 6.4Seller on or before the expiration of said time periods. If Buyer so elects to terminate this Agreement, should the Initial Deposit and the Additional Deposit (to the extent then made) shall be returned to Buyer disapprove and neither Buyer nor Seller shall have any further liability or obligation to each other, except for the indemnities contained in Sections 4.4 and 15; provided, notwithstanding anything to the contrary contained herein if Buyer terminates this Agreement for failure of a Pre-Closing Condition or for any other reason other than a default on the part of Seller, Buyer shall deliver to Seller a copy of all materials, tests, audits, surveys, reports, studies and the results of any and all investigations and inspections conducted by Buyer (excluding any proprietary materials but including any materials given to Buyer by or on behalf of Seller) (collectively, the "Due Diligence Materials") as a condition precedent to Buyer's right to obtain the return of the Initial Deposit and the Additional Deposit (to the extent then made). If Buyer does not elect to terminate this Agreement due to a failure of any of the conditions set forth in Section 4.1 Pre-Closing Conditions (i) the Initial Deposit shall become non-refundable to Buyer, and (ii) within one (1) business day after the time specifiedexpiration of the Conditions Period, Buyer shall have deposit into the powerEscrow Account, exercisable in its sole and absolute discretion by giving of written notice the Additional Deposit which shall also become non-refundable to Seller, of either Buyer subject to the satisfaction or waiver of the following: a. To Closing Conditions. If the Pre-Closing Conditions are satisfied or waived by Buyer but any Closing Condition is not satisfied or waived by Buyer on or before the date established for the Closing, then Buyer may terminate this Agreement by delivering written notice thereof to Seller on or before such date and recover any amounts paid on account the Deposits shall be returned to Buyer concurrently with Buyer's delivery to Seller of the Purchase PriceDue Diligence Materials, including and neither Buyer nor Seller shall have any further liability or obligation to each other, except for the Depositindemnities contained in Sections 4.4 and 15. Failure by Buyer to notify Seller within the specified time periods set forth herein, less shall be deemed an approval by Buyer of each such matter, in which event all such conditions and contingencies shall be deemed to be satisfied and approved. In the Independent Consideration, or any documents delivered event Buyer terminates this Agreement pursuant to the provisions of this Agreementhereof, in which event the parties Buyer shall be relieved and released of any further duties, obligations and responsibilities hereunder except solely responsible for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any and all escrow and title cancellation charges or fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure payable to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etcCompany., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject If any condition specified in Section 10.1 (other than those described in Sections 10.1(a) and (b)) is not satisfied on or before the applicable Closing Date, either Buyer or the applicable Seller shall have the right to extend such Closing Date by written notice to the other party(ies) for a sufficient time (but not to exceed 15 days) within which to cure or satisfy such condition and if a party elects to extend such Closing Date, the parties shall immediately commence prosecution of such cure or satisfaction. If any condition specified in Sections 10.1(a) or (b) is not cured or satisfied on or before the applicable Closing Date, or any condition specified in any other subsection of Section 6.410.1 is not satisfied within the 15-day or shorter period set forth above (if such Closing Date was extended as aforesaid) or if no party exercises such extension right, should the applicable Seller may, at its option, and in its sole and absolute discretion, (a) extend the applicable Closing Date to allow Buyer disapprove a sufficient time (but not to exceed 15 days) within which to cure or satisfy such condition, (b) waive any such condition which can legally be waived and proceed to Closing without adjustment or abatement of the Purchase Price, or (c) terminate this Agreement as to such Seller and its Property by written notice to Buyer, in which case Escrow Agent shall refund to Buyer the applicable Property Deposit, less the Independent Contract Consideration applicable to such Property (which Escrow Agent shall deliver to such Seller), Buyer shall pay the cancellation charges as to such Property in the event of a failure of the conditions set forth in Section 4.1 within the time specified, Sections 10.1(a) or (b) and Buyer and Seller shall have the power, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either each pay one half of the following: a. To terminate this Agreement and recover any amounts paid on account cancellation charges in event of a failure of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as condition set forth in Section 5.410.1(c), if any, of Escrow Agent and Title Company, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition this Agreement shall be deemed approval thereof; provided further, however, that should Buyer disapprove of no further force or effect as to such Seller and its Property and neither party shall have any exception further rights or obligations hereunder as to title one another (the “Title Defect”) other than pursuant to Section 4.1(c) within any provision hereof which expressly survives the time specifiedtermination of this Agreement), Buyer shall first give five (5) business days written notice but this Agreement will remain in full force and effect as to all other Properties. Notwithstanding the foregoing, if the failure of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter condition is due to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition a breach by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contraryhereunder, Seller shall remove may pursue any and all monetary encumbrances, deeds of trust, liens, mortgages, etcits remedies under Section 13.2., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove any i. If on or before the outside date of the conditions Settlement set forth in Section 4.1 within 4, all contingencies and conditions specified herein are not or cannot be satisfied, then the time specified, Buyer party whose obligation to close is so conditioned shall have the poweroption of (iA) waiving such condition and completing Settlement hereunder if it so chooses at the Purchase Price (it being understood that if such condition applies to both parties, exercisable in its sole and absolute discretion by giving of written notice to Sellerthen both parties shall have waived 398068.5/39743 C:\NrPortbl\Main\JWD\398068_2.DOC 9 the applicable condition(s)), of either of the following: a. To terminate or (iiB) canceling this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event case this Agreement shall become null and void and the parties Deposit shall be relieved and released of any further dutiespaid to Buyer and, obligations and responsibilities hereunder except unless such cancellation is by Seller for Seller’s right to retain the Independent Contract Consideration as reasons provided in Section 3.517(b), the Released Funds and any continuing indemnification obligations as set forth in Section 5.4Extension Fees, and subject to the payment of any escrow and title cancellation fees as extent paid, shall be retained by the Seller (it being understood that if such condition applies to both parties, either party may so cancel if both parties do not waive the applicable condition(s) pursuant to this clause (i) above). If Seller cancels this Agreement for the reasons provided in Section 6.7; or, b. To waive such condition and proceed with 17(b), the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition Deposit shall be deemed approval thereof; provided furtherreturned to Buyer, howeverand the Extension Fees, that should to the extent paid, shall be returned to the Buyer disapprove of by Seller. ii. If the VA Contract is executed, but is thereafter In the event the VA Contract is terminated for any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specifiedreason, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall each have the right to exercise terminate this Agreement upon notice to Seller the remedy contained in Section 4.2(a)other party delivered within fifteen (15) days after receiving notice of the termination of the VA Contract. If Seller states that it Upon any such termination, this Agreement shall become null and void and, (A) if the termination is willing by Buyer, the Deposit shall be returned to Buyer and able to do soany Extension Fees, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closingextent paid, shall be retained by the Seller, (B) if the termination is by Seller, the Deposit shall be returned to Buyer and the Extension Fees, to the extent paid, shall continue be returned to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etcSeller., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject In the event that any or all of the Pre-Closing Conditions are not satisfied or otherwise waived by Purchaser prior to Section 6.4expiration of the Conditions Period in writing, should Buyer disapprove then Purchaser may terminate this Agreement by delivering written notice thereof to Seller on or before the expiration of the Conditions Period; provided, if Purchaser fails to deliver any such written notice, this Agreement shall be deemed automatically terminated and of no further force or effect. If Purchaser so elects to terminate this Agreement or this Agreement is automatically terminated, the Deposit and all interest earned thereon shall promptly be returned to Purchaser and Purchaser shall not have any further liability or obligation to Seller hereunder. If Purchaser does not elect to terminate this Agreement due to a failure of any of the conditions Pre-Closing Conditions and notifies Seller in writing that it intends to proceed with the purchase of the Property prior to the expiration of the Conditions Period, subject to the terms and provisions of this Agreement, the Deposit shall become non-refundable to Purchaser and the Deposit shall be held in escrow for Seller's benefit, however, all interest earned thereon after the expiration of the Conditions Period shall be for the Purchaser's benefit. If Purchaser elects to terminate the Agreement, Purchaser shall not have any further liability or obligation hereunder, except with respect to the inspection 6 indemnity referred to in Section 4.1.2 above. Failure by Purchaser to notify Seller of the satisfaction or waiver by Purchaser of any of the contingencies set forth herein shall be deemed disapproval by Purchaser of such matters. The foregoing conditions contained in this Section 4.1 within 4 are intended solely for the time specifiedbenefit of Purchaser. If any of the foregoing conditions are not satisfied, Buyer Purchaser shall have the power, exercisable in right at its sole election either to waive the condition in question and absolute discretion by giving of written notice to Sellerproceed with the purchase or, of either of in the following: a. To alternative, terminate this Agreement or pursue all rights and recover any amounts paid on account remedies available to Purchaser under this Agreement. After the expiration of the Purchase PriceConditions Period and provided this Agreement has not already been terminated (or been deemed terminated) at or prior to the expiration of the Conditions Period, including the DepositDeposit shall be non-refundable to Purchaser subject to (i) the satisfaction or waiver by Purchaser of all of the Closing Conditions, less (ii) the Independent Considerationprovisions of Section 12 below, or and (iii) Seller not being in default of any documents delivered pursuant to of the provisions of this Agreement, in which event the parties shall be relieved and released of any further duties, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject If any or all of the Pre-Closing --------------------- Conditions are not satisfied or waived within the applicable time periods specified in Section 4.1 above, then Buyer may terminate this Agreement by delivering written notice thereof to Section 6.4Seller on or before the expiration of said time periods. If Buyer so elects to terminate this Agreement, should the Initial Deposit shall be returned to Buyer disapprove and neither Buyer nor Seller shall have any further liability or obligation to each other, except for Buyer's Surviving Obligations. Notwithstanding anything to the contrary contained herein, if Buyer terminates this Agreement for failure of a Pre-Closing Condition or for any other reason other than a termination due to a default by Seller, within ten (10) days after such termination Buyer shall deliver to Seller a copy of all materials, tests, audits, surveys, reports, studies and the results of any and all investigations and inspections conducted by Buyer (excluding any proprietary materials) (collectively, the "Buyer's Documents") and Buyer shall also return to Seller any and all documents, leases, agreements, reports and other materials given to Buyer by or on behalf of Seller (collectively, the "Seller's Documents") (the Buyer's Documents and the Seller's Documents are collectively referred to herein as the "Due Diligence Materials"). Notwithstanding anything to the contrary contained in this Agreement, if Buyer terminates this Agreement as a result of a default by Seller, Buyer shall not be obligated to deliver the Buyer's Documents to Seller upon or after such termination. The foregoing covenants of Buyer shall survive any such termination of this Agreement. If Buyer fails to terminate this Agreement by delivering written notice thereof to Seller prior to 5:00 p.m. (Pacific Time) on the Approval Date, (i) the Initial Deposit shall become non-refundable to Buyer, and (ii) within one (1) business day after the Approval Date, Buyer shall deposit into the Escrow Account, the Additional Deposit which shall also become non-refundable to Buyer subject to the satisfaction or waiver of the Buyer's Closing Conditions. The funding by Buyer of the Additional Deposit shall conclusively constitute Buyer's approval of the Pre-Closing Conditions. If the Pre-Closing Conditions are satisfied or waived by Buyer but any or all of the Buyer's Closing Conditions are not satisfied or waived by Buyer on or before the date established for the Closing, then Buyer shall notify Seller in writing of those Buyer's Closing Conditions which have not been satisfied or otherwise waived by Buyer (the "Buyer's Closing Conditions Failure Notice"). Seller shall have three (3) business days after Buyer has delivered to Seller the Buyer's Closing Conditions Failure Notice (and the Closing shall be extended, if necessary to give Seller such three (3) business day period) to notify Buyer in writing of Seller's election either to (a) take such actions as may be necessary to cure such matters to Buyer's reasonable satisfaction prior to the date of Closing (as same may be extended), or (b) advise Buyer that Seller will not cure such matters (the "Seller's Conditions Notice"). If Seller elects not to cure such matters, then within two (2) business days after Buyer's receipt of the Seller's Conditions Notice (and the Closing shall be extended, if necessary to give Buyer such two (2) business day period), Buyer, at its sole option, may elect to do any of the conditions set forth in Section 4.1 within the time specified, following: (1) Buyer shall have the power, exercisable in its sole and absolute discretion by giving of written notice may elect to Seller, of either of the following: a. To terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant by delivering written notice thereof to the provisions of this AgreementSeller, in which event Seller shall promptly cause the return to Buyer of the Deposits, and the parties shall be relieved and released of any have no further duties, obligations and responsibilities hereunder except for Seller’s right to retain Buyer's Surviving Obligations; (2) if the Independent Contract Consideration as provided Buyer's Closing Condition in Section 3.5, question is any continuing indemnification obligations as set forth in Section 5.4, and subject to the payment of any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that Buyer’s failure to so approve or disapprove of any such condition shall be deemed approval thereof; provided further, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy those conditions specified in Section 4.2(a). No Title Defect may be insured over Sections 4.2.1.1, 4.2.1.3, 4.2.1.4 or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etc4., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).

Failure of Conditions. Subject to Section 6.4, should Buyer disapprove If any of the conditions set forth in Section paragraphs 5.1 or 5.2 above are not timely satisfied or waived by the applicable party, for any reason other than the default of Buyer or Seller under this Agreement, then this Agreement and the rights and obligations of Buyer and Seller shall terminate and be of no further force or effect except as to those matters as specifically stated in this Agreement to survive expiration or early termination, in which case the Title Company is hereby instructed to return promptly to Buyer the Deposit in accordance with paragraph 4.1 within and to the time specifiedparty which placed such items into Escrow the documents that are held by the Title Company on the date of termination. Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge that, if Buyer elects to extend the Due Diligence Period pursuant to paragraph 4.1.1 above, the Initial Deposit and the Additional Deposit become non-refundable to Buyer except (i) in the event of a default by Seller hereunder (in which event the provisions of paragraph 6.2 shall apply), or (ii) in the event of a failure of any of Seller’s representations or warranties contained herein due to changed circumstances not caused by an act of Seller (as opposed to Seller’s breach or inaccuracy in any representation of Seller as of the date of this Agreement pursuant to paragraph 8 below) as of the Close of Escrow, in which case Buyer shall have the poweroption either to (i) proceed with the Closing and the Deposit shall be applied to the Purchase Price, exercisable in its sole and absolute discretion by giving of written notice to Seller, of either of the following: a. To or (ii) terminate this Agreement and recover any amounts paid on account of the Purchase Price, including the Deposit, less the Independent Consideration, or any documents delivered pursuant to the provisions of this Agreement, in which event the parties Deposit shall be relieved and released of any further dutiesreturned to Buyer. Consequently, obligations and responsibilities hereunder except for Seller’s right to retain the Independent Contract Consideration as provided in Section 3.5, any continuing indemnification obligations as set forth in Section 5.4the preceding sentence, and subject if Buyer terminates this Agreement pursuant to the payment of this paragraph 5.3 at any escrow and title cancellation fees as provided in Section 6.7; or, b. To waive such condition and proceed with the Closing; provided, however, that time after Buyer’s failure election to so approve or disapprove of any such condition shall be deemed approval thereof; provided furtherextend the Due Diligence Period, however, that should Buyer disapprove of any exception to title (the “Title Defect”) pursuant to Section 4.1(c) within the time specified, Buyer shall first give five (5) business days written notice of the Title Defect which it has disapproved, and Seller shall have an additional five (5) business days after receiving the notice of Title Defect thereafter to determine whether it is willing or able to correct such Title Defect. Seller shall give written notice to Buyer within such five (5) business day period whether it is willing or able to correct such Title Defect. If Seller is unwilling or unable to correct any such Title Defect, Buyer shall have the right to exercise the remedy contained in Section 4.2(a). If Seller states that it is willing and able to do so, then Seller shall proceed to correct the Title Defect as soon as is practicable, and in all events prior to Closing, and if Seller is thereafter unable to correct the Title Defect prior to the Closing, Buyer shall continue to have the right to exercise the remedy specified in Section 4.2(a). No Title Defect may be insured over or removed of record by indemnification or similar arrangement with the Title Company without Buyer’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. No satisfaction or waiver of any condition by Buyer shall reduce or eliminate hereby is instructed to promptly release the rights or remedies of Buyer by reason of any breach of any covenant, representation, or warranty made by Seller in this Agreement. Notwithstanding anything in this Agreement Deposit to the contrary, Seller shall remove any and all monetary encumbrances, deeds of trust, liens, mortgages, etcSeller., against the Property at or prior to the Closing at Seller’s sole cost and expense with no right of reimbursement from Buyer. If Seller is unwilling or unable to remove such monetary encumbrances, deeds of trust, liens, mortgages, etc., against the Property at or prior to the Closing, Buyer shall have the right to exercise the remedy contained in Section 4.2(a).