Common use of Material Defects Arising Prior to the Closing Clause in Contracts

Material Defects Arising Prior to the Closing. (a) In addition to the other rights and remedies Buyer has pursuant to this Agreement, including pursuant to Section 13.2 above, if prior to the Closing, with regard to any Asset: (i) any representation or warranty made by a Seller under Sections 3.1 or 3.2 shall prove not to be true and correct as of the date made or deemed made and the relevant Seller shall have failed or been unable to promptly cure the same in accordance with the provisions of this Agreement; or (ii) the relevant Seller shall be unable to perform in all material respects, the obligations required to be performed by the relevant Seller under this Agreement prior to or at the Closing, with respect to such Asset, including, without limitation, (A) conveying title to a Property in the condition required under Section 8.1, (B) satisfying the requirements of Section 5.2, or (C) satisfying the requirements of subparagraph 3.4(b)(i) as it relates to a Tenant Estoppel (or Lease Required Estoppel, as applicable) for each Property; (any such event being referred to as an “Asset Specific Default”), then, prior to the Closing Date, the Buyer may elect, by notice to the Sellers (each a “Buyer Exclusion Notice”), to exclude such affected Asset from the Assets to be sold by the Sellers to the Buyer hereunder and thereafter such affected Asset shall be removed from the Assets to be sold hereunder, all references to such Assets in this Agreement shall be deemed deleted and the Gross Asset Value shall be reduced by an amount equal to the Allocated Asset Value for each such affected Asset. Without limitation of the provisions of Section 13.3(c), if all of the Assets are removed from the Assets to be sold hereunder, then this Agreement shall be deemed terminated and neither party shall have any further rights or obligations to the other, except for those expressly stated to survive the termination of this Agreement (including, without limitation Section 13.2(c)) (it being understood that the termination of any Other PSA pursuant to Section 13.3 thereof shall not, in and of itself, cause the termination of this Agreement).

Material Defects Arising Prior to the Closing. (a) In addition to the other rights and remedies Buyer has pursuant to this Agreement, including pursuant to Section 13.2 above, if prior to the Other Assets Closing, with regard to any Asset: (i) any representation or warranty made by a Seller under Sections 3.1 or 3.2 shall prove not to be true and correct as of the date made or deemed made and the relevant Seller shall have failed or been unable to promptly cure the same in accordance with the provisions of this Agreement; or (ii) the relevant Seller shall be unable to perform in all material respects, the obligations required to be performed by the relevant Seller under this Agreement prior to or at the Other Assets Closing, with respect to such Asset, including, without limitation, (A) conveying title to a Property in the condition required under Section 8.1, (B) satisfying the requirements of Section 5.2, or (C) satisfying the requirements of subparagraph 3.4(b)(i) as it relates to a Tenant Estoppel (or Lease Required Estoppel, as applicable) for each Property; (any such event being referred to as an “Asset Specific Default”), then, prior to the Other Assets Closing Date, the Buyer may elect, by notice to the Sellers (each a “Buyer Exclusion Notice”), to exclude such affected Asset from the Assets to be sold by the Sellers to the Buyer hereunder and thereafter such affected Asset shall be removed from the Assets to be sold hereunder, all references to such Assets in this Agreement shall be deemed deleted and the Gross Asset Value shall be reduced by an amount equal to the Allocated Asset Value for each such affected Asset. Without limitation of the provisions of Section 13.3(c), if all of the Assets are removed from the Assets to be sold hereunder, then this Agreement shall be deemed terminated and neither party shall have any further rights or obligations to the other, except for those expressly stated to survive the termination of this Agreement (including, without limitation Section 13.2(c)) (it being understood that the termination of any Other PSA pursuant to Section 13.3 thereof shall not, in and of itself, cause the termination of this Agreement).

Material Defects Arising Prior to the Closing. (a) In addition to the other rights and remedies Buyer has pursuant to this Agreement, including pursuant to Section 13.2 above, if prior to the Closing, with regard to any Asset:: 48 (i) any representation or warranty made by a Seller under Sections 3.1 or 3.2 shall prove not to be true and correct as of the date made or deemed made and the relevant Seller shall have failed or been unable to promptly cure the same in accordance with the provisions of this Agreement; or (ii) the relevant Seller shall be unable to perform in all material respects, the obligations required to be performed by the relevant Seller under this Agreement prior to or at the Closing, with respect to such Asset, including, without limitation, (A) conveying title to a Property in the condition required under Section 8.1, (B) satisfying the requirements of Section 5.2, or (C) satisfying the requirements of subparagraph 3.4(b)(i) as it relates to a Tenant Estoppel (or Lease Required Estoppel, as applicable) for each Property; (any such event being referred to as an “Asset Specific Default”), then, prior to the Closing Date, the Buyer may elect, by notice to the Sellers (each a “Buyer Exclusion Notice”), to exclude such affected Asset from the Assets to be sold by the Sellers to the Buyer hereunder and thereafter such affected Asset shall be removed from the Assets to be sold hereunder, all references to such Assets in this Agreement shall be deemed deleted and the Gross Asset Value shall be reduced by an amount equal to the Allocated Asset Value for each such affected Asset. Without limitation of the provisions of Section 13.3(c), if all of the Assets are removed from the Assets to be sold hereunder, then this Agreement shall be deemed terminated and neither party shall have any further rights or obligations to the other, except for those expressly stated to survive the termination of this Agreement (including, without limitation Section 13.2(c)) (it being understood that the termination of any Other PSA pursuant to Section 13.3 thereof shall not, in and of itself, cause the termination of this Agreement).

Material Defects Arising Prior to the Closing. (a) In addition to the other rights and remedies Buyer has pursuant to this Agreement, including pursuant to Section 13.2 above, if prior to the Closing, with regard to any Asset: (i) any representation or warranty made by a Seller under Sections 3.1 or 3.2 shall prove not to be true and correct as of the date made or deemed made and the relevant Seller shall have failed or been unable to promptly cure the same in accordance with the provisions of this Agreement; or (ii) the relevant Seller shall be unable to perform in all material respects, the obligations required to be performed by the relevant Seller under this Agreement prior to or at the Closing, with respect to such Asset, including, without limitation, (A) conveying title to a Property in the condition required under Section 8.1, (B) satisfying the requirements of Section 5.2, or (C) satisfying the requirements of subparagraph 3.4(b)(i) as it relates to a Tenant Estoppel (or Lease Required Estoppel, as applicable) for each Property; (any such event being referred to as an “"Asset Specific Default”"), then, prior to the Closing Date, the Buyer may elect, by notice to the Sellers (each a “"Buyer Exclusion Notice”"), to exclude such affected Asset from the Assets to be sold by the Sellers to the Buyer hereunder and thereafter such affected Asset shall be removed from the Assets to be sold hereunder, all references to such Assets in this Agreement shall be deemed deleted and the Gross Asset Value shall be reduced by an amount equal to the Allocated Asset Value for each such affected Asset. Without limitation of the provisions of Section 13.3(c), if all of the Assets are removed from the Assets to be sold hereunder, then this Agreement shall be deemed terminated and neither party shall have any further rights or obligations to the other, except for those expressly stated to survive the termination of this Agreement (including, without limitation Section 13.2(c)) (it being understood that the termination of any Other PSA pursuant to Section 13.3 thereof shall not, in and of itself, cause the termination of this Agreement).