Common use of Unpermitted Exceptions Clause in Contracts

Unpermitted Exceptions. If Purchaser objects to any (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser shall provide written notice to the Title Company and Seller specifying such “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenant, as tenants only, under a Tenant Leases without any purchase right, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause the removal on or prior to the Closing Date of the following: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1.

Unpermitted Exceptions. If Purchaser objects Seller shall not be required to respond to, bring any (a) liens, encumbrances action or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitmentinstitute any proceeding, or (b) encroachments by improvements to otherwise incur any costs or expenses in order to attempt to eliminate any Purchaser title and survey objections, except that Seller shall, on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (prior to the extent in violation thereof) Closing, be required to remove, by payment, bonding or any other survey defects (otherwise, the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser shall provide written notice to the Title Company and Seller specifying such “unpermitted exceptions” to title to the Real Property following items (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that ): (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basisany mortgage or other lien granted, assumed or taken “subject to” by Seller which secures indebtedness for borrowed money; (ii) any title encumbrances which have been voluntarily recorded by Seller or otherwise placed by Seller or consented by Seller to be placed against the rights of each tenant, as tenants only, under a Tenant Leases without any purchase right, and Property on or following the date hereof; (iii) all mechanics’ and materialmen’s liens arising from work performed by or on behalf of Seller; (iv) all judgment and encumbrances caused tax liens against Seller; and (v) other liens from Governmental Authorities for actions taken by Seller that Seller was required to take, but failed to do so, regardless of the nature thereof, which are in liquidated amounts and may be satisfied by the payment of money (including the preparation or created solely by any Purchaser Indemniteefiling of appropriate release or satisfaction instruments in connection therewith), provided, that, (1) Seller shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense not be obligated to remove or cause the removal on or prior to the Closing Date of the following: any items set forth in clause (iv) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are payable in installments, such obligation shall apply only to the extent such installments the cost of removing the same would exceed One Million and 00/100 Dollars ($1,000,000.00) in the aggregate (it being agreed that Seller shall be delinquent if unpaid at obligated to remove exceptions up to $1,000,000 in the Closing; (iii) any lienaggregate), or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv2) monetary defects and liens first appearing subsequent with respect to the effective date items in clause (v) that are in excess of the title commitment but prior to the Closing (collectively$1,000,000, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in at Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser election in Purchaser’s its sole and absolute discretion, then Seller will deliver written notice Purchaser shall be entitled to Purchaser specifying a credit against the Purchase Price up to $1,000,000, in which Unpermitted Exceptions Seller is unwilling to cure at least ten event (10x) days following to the expiration of the Due Diligence Period such title objection (Seller’s silence to a “Section 5.3.1(2) Exception”) shall be deemed Seller’s election not to cure such Unpermitted Exceptions)be, for all 19 AUS-6206654-10 6055890/60 purposes, a Permitted Exception, and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5y) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have close hereunder notwithstanding the right to a refund existence of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1same. 5.3.2.

Unpermitted Exceptions. If Purchaser objects to any The Parties acknowledge and agree that (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed set forth in the Title CommitmentSchedule 5.3.1, or and (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser in each case, as set forth in Schedule 5.3.1 shall provide written notice to the Title Company and Seller specifying such constitute “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period); provided, however, that (ia) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (iib) the rights of each tenanttenants under the Tenant Leases, as tenants only, under a pursuant to the Tenant Leases without any purchase rightLeases, and (iiic) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, Indemnitee shall in no event constitute Unpermitted ExceptionsExceptions even if on Schedule 5.3.1. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause that the removal on or prior to the Closing Date of the followingfollowing shall constitute Unpermitted Exceptions: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) which is not assumed by Purchaser under this Agreement, and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any such Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1.

Unpermitted Exceptions. If Purchaser objects to any (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser the Existing Survey or in an the Updated Survey (if any), Purchaser shall provide written notice to confer with the Title Company and Seller specifying such to attempt to agree on which shall constitute “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenanttenants under the Tenant Leases, as tenants only, under a pursuant to the Tenant Leases without any purchase rightLeases, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, Indemnitee shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause that the removal on or prior to the Closing Date of the followingfollowing shall constitute Unpermitted Exceptions: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ lienswhich is not assumed by Purchaser under this Agreement, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any such Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; , and (iii) any lien, or right other Title Exceptions objected to by Purchaser which may be removed in accordance with its terms by payment of a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; liquidated amount which in the aggregate do not exceed Ten Thousand and 00/100 Dollars (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”$10,000.00). If Seller the Parties agree on which Title Exceptions and Title Company are willing and able to cure or resolve Survey Defects shall constitute the Unpermitted Exceptions to Exceptions, the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will Parties shall enter into a side letter agreement with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or the Parties cannot agree on which Title Company are unwilling or unable to remove or insure over Exceptions and Survey Defects shall constitute the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretionExceptions, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1the Due Diligence Contingency.

Unpermitted Exceptions. If Purchaser in its sole and absolute discretion objects to any (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any)the Survey, Purchaser shall provide written notice to the Title Company and Seller specifying such (the “unpermitted exceptions” to Title and Survey Objection Notice”) setting forth those Title Exceptions and Survey Defects regarding the title to the Real Property to which Purchaser objects (the “Unpermitted ExceptionsTitle Objections”) prior to the expiration of the Due Diligence Period; provided, however, that neither (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenanttenants under the Tenant Leases, as tenants only, under a pursuant to the Tenant Leases without any purchase rightLeases, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, nor (iv) the Ground Lease, the Conference Center Lease, the Master Condominium Documents, the Sub-Condominium Documents, or the REA, shall in no any event constitute Unpermitted ExceptionsTitle Objections should Purchaser elect to waive the Due Diligence Contingency and close the transactions contemplated hereunder (but nothing shall impair Purchaser’s right to terminate this Agreement during the Due Diligence Period as a result of Purchaser’s review of the same). Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense that the following shall constitute Title Objections which are required to remove be removed or cause the removal on or prior to the Closing Date of the followingcured by Seller: (iA) any mortgages, deeds of trust or other security interests for any financing incurred by Seller which is not assumed by Purchaser (other than the Existing Financingin its sole discretion) under this Agreement, and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (iiB) Taxes relating to any period prior to the Closing Date which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, howeverand, that if any such Taxes are payable in installments, such obligation shall also apply only to the extent any such installments which would otherwise be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to payable after the Closing Date unless Purchaser receives a credit for such Taxes under Section 11.2 (collectively, the “Monetary DefectsMandatory Unpermitted Exceptions”). If Purchaser provides a Title and Survey Objection Notice to Seller, Seller may elect, in its sole discretion, by providing written notice (the “Title and Survey Election Notice”) to Purchaser within five (5) Business Days after Seller’s receipt of the Title Company are willing and able Survey Objection Notice, to cure either (1) accept any one or resolve the Unpermitted Exceptions more of such Title Objections as “unpermitted exceptions” to title to the satisfaction of Purchaser in Real Property (the “Unpermitted Exceptions”) to be removed or cured to Purchaser’s satisfaction (in its sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove discretion) at or before prior to Closing), or (2) electing not to remove or cure any one or more of such Title Objections; provided, however, if any such Title Objections are Mandatory Unpermitted Exceptions, then Seller shall be obligated to remove or insure over the same in accordance with Section 5.3.4; provided further, that Seller’s failure to timely deliver a Title and Survey Election Notice to Purchaser will enter into a side letter with within such five (5) Business Day period shall be deemed Seller’s election not to remove or cure such Title Objections objected to in the Title Company setting forth and Survey Objection Notice (but excluding any Mandatory Unpermitted Exceptions). If the Parties cannot mutually agree on which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1the Due Diligence Contingency.

Unpermitted Exceptions. If Purchaser objects to any (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b) encroachments by improvements on adjoining properties onto or over the LandLeased Premises, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any)the Survey, Purchaser shall provide written notice to confer with the Title Company and Seller specifying such to attempt to agree on which shall constitute “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenanttenants under the Tenant Leases, as tenants only, under a pursuant to the Tenant Leases without any purchase rightLeases, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, Indemnitee shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause that the removal on or prior to the Closing Date of the followingfollowing shall constitute Unpermitted Exceptions: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ lienswhich is not assumed by Purchaser under this Agreement, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any such Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; , and (iii) any lien, or right other Title Exceptions objected to by Purchaser which may be removed in accordance with its terms by payment of a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; liquidated amount which in the aggregate do not exceed Ten Thousand and no/100 Dollars (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”$10,000.00). If Seller the Parties agree on which Title Exceptions and Title Company are willing and able to cure or resolve Survey Defects shall constitute the Unpermitted Exceptions to Exceptions, the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will Parties shall enter into a side letter agreement with the Title Company Seller setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or the Parties cannot agree on which Title Company are unwilling or unable to remove or insure over Exceptions and Survey Defects shall constitute the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretionExceptions, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1the Due Diligence Contingency.

Unpermitted Exceptions. If Purchaser objects to any (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser the Existing Survey or in an the Updated Survey (if any)Survey, Purchaser shall provide written notice to confer with the Title Company and Seller specifying such to attempt to agree on which shall constitute “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenanttenants under the Tenant Leases, as tenants only, under a pursuant to the Tenant Leases without any purchase rightLeases, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, Indemnitee shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause that the removal on or prior to the Closing Date of the followingfollowing shall constitute Unpermitted Exceptions: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ lienswhich is not assumed by Purchaser under this Agreement, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any such Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; , and (iii) any lien, or right other Title Exceptions objected to by Purchaser which may be removed in accordance with its terms by payment of a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; liquidated amount which in the aggregate do not exceed Ten Thousand and 00/100 Dollars (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”$10,000.00). If Seller the Parties agree on which Title Exceptions and Title Company are willing and able to cure or resolve Survey Defects shall constitute the Unpermitted Exceptions to Exceptions, the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will Parties shall enter into a side letter agreement with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or the Parties cannot agree on which Title Company are unwilling or unable to remove or insure over Exceptions and Survey Defects shall constitute the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretionExceptions, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1the Due Diligence Contingency.

Unpermitted Exceptions. If Purchaser objects to any (a) liensSeller shall, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitmentat Closing, cure by obtaining releases, if necessary expending money, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser shall provide written notice to causing the Title Company and Seller specifying such “unpermitted exceptions” to title remove from the Title Policy or affirmatively insure over at no cost to Purchaser to the Real Property reasonable satisfaction of Purchaser the following (collectively, the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that ): (i) any mortgage lien or other voluntary lien incurred by Seller or its affiliates securing a specific monetary amount and encumbering the rights and interests of customers and guests at Shopping Center reflected on the Hotel to occupy rooms on a transient license basisTitle Policy, (ii) any mechanics’ lien created by, through or under Seller or its affiliates (including any notices of commencement, notices of furnishings, designation of lien agents or other similar matters relating to the rights construction of each tenantany landlord improvements under the Leases), as tenants onlywhich, under a for the avoidance of doubt, shall not include Permitted Tenant Leases without any purchase rightLiens (which are governed by Section 7.3), and (iii) all liens and encumbrances caused any judgment lien or other involuntary lien securing a monetary amount created solely by any Purchaser Indemniteeby, through or under Seller or its affiliates, which, for the avoidance of doubt, shall in no event constitute Unpermitted Exceptionsnot include Permitted Tenant Liens (which are governed by Section 7.3). Notwithstanding Seller may use any portion of its allocable portion of the foregoing, Seller covenants and agrees at Purchase Price to satisfy its sole cost and expense obligation to remove or cause the removal on or prior to the Closing Date any Unpermitted Exceptions that exist as of the following: (i) any mortgagesClosing, deeds of trust or other security interests for any financing incurred by and if Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not fail to cure such Unpermitted Exceptions)Exception as of the Closing, and Purchaser’s sole and exclusive remedy shall be , in addition to its right to terminate this Master Purchase and Sale Agreement within to the five extent permitted by Sections 4.1 or 11.2, shall be permitted (5but shall not be obligated) Business Days to set off the monetized value of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured any Unpermitted Exceptions without a reduction in or credit to against the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1Price at Closing.

Unpermitted Exceptions. If Purchaser objects Seller shall not be required to respond to, bring any (a) liens, encumbrances action or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitmentinstitute any proceeding, or (b) encroachments by improvements to otherwise incur any costs or expenses in order to attempt to eliminate any Purchaser title and survey objections, except that Seller shall, on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (prior to the extent in violation thereof) Closing, be required to remove, by payment, bonding or any other survey defects (otherwise, the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser shall provide written notice to the Title Company and Seller specifying such “unpermitted exceptions” to title to the Real Property following items (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that ): (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basisany mortgage or other lien granted, assumed or taken “subject to” by Seller which secures indebtedness for borrowed money; (ii) any title encumbrances which have been voluntarily recorded by Seller or otherwise placed by Seller or consented by Seller to be placed against the rights of each tenant, as tenants only, under a Tenant Leases without any purchase right, and Property on or following the date hereof; (iii) all mechanics’ and materialmen’s liens arising from work performed by or on behalf of Seller; (iv) all judgment and encumbrances caused tax liens against Seller; and (v) other liens from Governmental Authorities for actions taken by Seller that Seller was required to take, but failed to do so, regardless of the nature thereof, which are in liquidated amounts and may be satisfied by the payment of money (including the preparation or created solely by any Purchaser Indemniteefiling of appropriate release or satisfaction instruments in connection therewith), provided, that, (1) Seller shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense not be obligated to remove or cause the removal on or prior to the Closing Date of the following: any items set forth in clause (iv) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are payable in installments, such obligation shall apply only to the extent such installments the cost of removing the same would exceed One Million and 00/100 Dollars ($1,000,000.00) in the aggregate (it being agreed that Seller shall be delinquent if unpaid at obligated to remove exceptions up to $1,000,000 in the Closing; (iii) any lienaggregate), or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv2) monetary defects and liens first appearing subsequent with respect to the effective date items in clause (v) that are in excess of the title commitment but prior to the Closing (collectively$1,000,000, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in at Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser election in Purchaser’s its sole and absolute discretion, then Seller will deliver written notice Purchaser shall be entitled to Purchaser specifying a credit against the Purchase Price up to $1,000,000, in which Unpermitted Exceptions Seller is unwilling to cure at least ten event (10x) days following to the expiration of the Due Diligence Period such title objection (Seller’s silence to a “Section 5.3.1(2) Exception”) shall be deemed Seller’s election not to cure such Unpermitted Exceptions)be, for all AUS-6206654-10 6055890/60 purposes, a Permitted Exception, and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5y) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have close hereunder notwithstanding the right to a refund existence of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1same.

Unpermitted Exceptions. If the Purchaser objects Parties object to any (a1) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b2) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser the Existing Survey or in an Updated Survey (if any), the Purchaser Parties shall provide written notice to confer with the Title Company and the Seller specifying such Parties to attempt to agree on which shall constitute “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (iA) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenant, as tenants only, under a Tenant Leases without any purchase rightManagement Agreement, and (iiiB) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, Parties Indemnitee shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, the Seller covenants and agrees at its sole cost and expense to remove or cause Parties agree that the removal on or prior to the Closing Date of the followingfollowing shall constitute Unpermitted Exceptions: (iI) the Mortgage Loan and any other mortgages, deeds of trust or other security interests for any financing incurred by Seller any Target Party, OwnerCo LLC or Operating Tenant prior to Closing (other than unless the Existing Financing) and any other monetary liens Purchaser Parties are entitled to a credit therefor pursuant to this Agreement), (including mechanics’ liens, tax liens, judgment liens and the like); (iiII) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any such Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; , and (iiiIII) any lienother Title Exceptions objected to by the Purchaser Parties which may be removed in accordance with its terms by payment of a liquidated amount which in the aggregate do not exceed One Hundred Thousand and 00/100 Dollars ($100,000.00) (the items set forth in (I), or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; (II) and (ivIII) monetary defects and liens first appearing subsequent above being referred to the effective date of the title commitment but prior to the Closing (collectively, herein as “Monetary DefectsAutomatic Unpermitted Exceptions”). If Seller the Parties agree on which Title Exceptions and Title Company are willing and able to cure or resolve Survey Defects shall constitute the Unpermitted Exceptions to Exceptions, the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will Parties shall enter into a side letter agreement with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or the Parties cannot agree on which Title Company are unwilling or unable to remove or insure over Exceptions and Survey Defects shall constitute the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following prior to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not Period, other than those which the Seller Parties are obligated to cure such Unpermitted Exceptions)hereunder, and Purchaser’s sole and exclusive remedy this Agreement shall be to automatically terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned refunded to the Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1Parties.

Unpermitted Exceptions. If Purchaser objects to any (a) liensEach Seller shall, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitmentat Closing, cure by obtaining releases, if necessary expending money, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser shall provide written notice to causing the Title Company and Seller specifying such “unpermitted exceptions” to title remove from the Title Policy or affirmatively insure over at no cost to Purchaser to the Real Property reasonable satisfaction of Purchaser the following (collectively, the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that ): (i) any mortgage lien or other voluntary lien incurred by such Seller or its affiliates securing a specific monetary amount other than all existing mortgages, deeds of trust, deeds to secure debt and security agreements and related documents securing the rights applicable Assumed Mortgage Loan, if applicable, and interests of customers and guests at encumbering such Shopping Center reflected on the Hotel to occupy rooms on a transient license basisTitle Policy, (ii) any mechanics’ lien created by, through or under such Seller or its affiliates (including any notices of commencement, notices of furnishings, designation of lien agents or other similar matters relating to the rights construction of each tenantany landlord improvements under the Leases), as tenants onlywhich, under a for the avoidance of doubt, shall not include Permitted Tenant Leases without any purchase rightLiens (which are governed by Section 7.3), and (iii) all liens and encumbrances caused any judgment lien or other involuntary lien securing a monetary amount created solely by any Purchaser Indemniteeby, through or under such Seller or its affiliates, which, for the avoidance of doubt, shall in no event constitute Unpermitted Exceptionsnot include Permitted Tenant Liens (which are governed by Section 7.3). Notwithstanding A Seller may use any portion of its allocable portion of the foregoing, Seller covenants and agrees at Purchase Price to satisfy its sole cost and expense obligation to remove or cause the removal on or prior to the Closing Date any Unpermitted Exceptions that exist as of the following: (i) any mortgagesClosing, deeds of trust or other security interests for any financing incurred by and if a Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not fail to cure such Unpermitted Exceptions)Exception as of the Closing, and Purchaser’s sole and exclusive remedy shall be , in addition to its right to terminate this Master Purchase and Sale Agreement within to the five extent permitted by Sections 4.1 or 11.2, shall be permitted (5but shall not be obligated) Business Days to set off the monetized value of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured any Unpermitted Exceptions without a reduction in or credit to against the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1Price at Closing.

Unpermitted Exceptions. If Purchaser objects to any (a) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or (b) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser shall provide written notice to the Title Company and Seller specifying such “unpermitted exceptions” to All matters affecting title to the Real Property (Property, and all survey matters affecting the Property, other than those matters expressly included as Permitted Exceptions pursuant to Section 3.2 are collectively referred to herein as “Unpermitted Exceptions”) prior .” During the term of this Agreement, Seller shall not encumber the Lot except as provided in this Agreement, or except as required by the Approvals, or except for encumbrances that will be discharged or partially released at Closing. In addition to the expiration satisfaction, delivery, or discharge, as applicable, of the Due Diligence Period; providedRequired Title Actions, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenant, as tenants only, under a Tenant Leases without any purchase right, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause the removal on or prior to the Closing Date Closing, Seller shall discharge, partially release, or cure, as applicable, all Unpermitted Exceptions or have such Unpermitted Exceptions bonded over to the Title Company’s reasonable satisfaction which arise subsequent to the date of the following: Title Commitment; provided, however that Seller shall not be obligated to expend in excess of Two Hundred Thousand and 00/100 Dollars ($200,000.00) in the aggregate, which amount shall include, without limitation, the payment of any attorneys’ fees or expenses or title insurance premiums, fees or expenses, to cure Unpermitted Exceptions other than any of the following (which Seller shall cure on or before the Closing Date): (i) any mortgagesmortgages or related security documents or similar encumbrances given to secure indebtedness for money borrowed, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are taxes and assessments due and payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date as of the title commitment but prior to the Closing Date (collectively, “Monetary DefectsEncumbrances”). If Seller and Title Company are willing and able to cure or resolve Notwithstanding the preceding sentence, if in the reasonable judgment of Seller’s counsel it is substantially unlikely that the Unpermitted Exceptions to (excluding the satisfaction Monetary Encumbrances) can be cured even by the expenditure of Purchaser in Purchaser’s sole Two Hundred Thousand and absolute discretion 00/100 Dollars (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing$200,000.00), then Seller need not make such expenditure and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects provisions of Section 4.3(b) shall constitute apply. Seller shall be entitled to use the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration proceeds of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days sale of the expiration of said ten (10) day period Property to effect any discharge, bonding over or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement cure made pursuant to this Section 5.3.13.3.

Unpermitted Exceptions. If Purchaser objects Notwithstanding any provision of this Agreement to the contrary, in no event shall Seller have any obligation to cure any title matter except for the Unpermitted Exceptions. As used herein, “Unpermitted Exceptions” means, (ai) all mortgages, deeds of trust, mechanics liens (other than with respect to the Ongoing Work, provided that Seller satisfies its obligations with respect thereto under Section 11.5) for work, labor and/or materials procured by, or by Manager at the direction of, Seller, judgment liens, Tax liens or any other monetary liens or monetary encumbrances (other than real estate Taxes or other exceptions assessments that are a lien but not yet due and payable) encumbering title to title the Property which may be removed in accordance with its terms by payment of a liquidated amount (any of the foregoing 2230752.03F-NYCSR03A - MSW individually or collectively, “Monetary Encumbrances”), (ii) any New Title Exceptions”) disclosed in the Title CommitmentExceptions objected to by Purchaser that are voluntarily created by Seller, or by Manager at the direction of Seller, without Purchaser’s consent, (biii) encroachments by improvements on adjoining properties onto or over the LandOperating Lease, (iv) Taxes which constitute Title Exceptions which would be delinquent if unpaid at Closing; provided, however, that if any encroachments of the Improvements onto or over adjoining propertiessuch Taxes are payable in installments, setback lines or easements (such obligation shall apply only to the extent in violation thereofsuch installments would be delinquent if unpaid at Closing, and (v) or any other survey defects Title Exceptions objected to by Purchaser (excluding Monetary Encumbrances) which may be removed in accordance with its terms by payment of a liquidated amount, which, in each case, Seller is required to remove of record at or prior to Closing, regardless of whether Purchaser fails to object to such Title Exceptions, provided that in the “Survey Defects”) disclosed case of Title Exceptions described in any surveys provided by Seller to Purchaser or in an Updated Survey clause (if anyv), Purchaser Seller’s obligation to remove such exceptions shall provide written notice be limited to the aggregate sum of One Million and 00/100 Dollars ($1,000,000.00) (other than Title Company and Seller specifying Exceptions set forth on Schedule 5.1.1, which shall not be applied towards such “unpermitted exceptions” to title to the Real Property (the “Unpermitted sum), beyond which such Title Exceptions shall be deemed Permitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms as guests only on a transient license basis, (ii) the rights of each tenanttenants or licensees under the Tenant Leases, as tenants only, pursuant to the Tenant Leases, (iii) the rights of Manager or any of its Affiliates under the HMA Documents, (iv) the rights of the Condominium Association and the Condominium Board under the Condominium Documents, (v) the rights of any party other than Seller under the Golf Course Use Agreements, the Tennis License Agreement, the Hotel Facilities Agreement, the Cost Sharing Agreement or the Revenue Sharing Agreement, (vi) the rights of any party to any instrument or agreement which constitutes a Tenant Leases without any purchase rightPermitted Exception, and (iiivii) all liens and encumbrances caused or created solely by Purchaser or any Purchaser Indemniteeof Purchaser’s Inspectors, shall in no event constitute Unpermitted Exceptions. Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause the removal on or prior to the Closing Date of the following: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ liens, tax liens, judgment liens and the like); (ii) Taxes which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, however, that if any Taxes are payable in installments, such obligation shall apply only to the extent such installments would be delinquent if unpaid at the Closing; (iii) any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; and (iv) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, “Monetary Defects”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Permitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1.

Unpermitted Exceptions. If Purchaser objects to any The Parties acknowledge and agree that the (ai) liens, encumbrances or other exceptions to title (the “Title Exceptions”) disclosed in the Title Commitment, or and (bii) encroachments by improvements on adjoining properties onto or over the Land, any encroachments of the Improvements onto or over adjoining properties, setback lines or easements (to the extent in violation thereof) or any other survey defects (the “Survey Defects”) disclosed set forth in any surveys provided by Seller to Purchaser or in an Updated Survey (if any), Purchaser Schedule V.C.1 shall provide written notice to the Title Company and Seller specifying such constitute “unpermitted exceptions” to title to the Real Property (the “Unpermitted Exceptions”) prior to the expiration of the Due Diligence Period; provided, however, that (i) the rights and interests of customers and guests at the Hotel to occupy rooms on a transient license basis, (ii) the rights of each tenant, as tenants only, under a Tenant Leases without any purchase right, and (iii) all liens and encumbrances caused or created solely by any Purchaser Indemnitee, shall in no event constitute Unpermitted Exceptions). Notwithstanding the foregoing, Seller covenants and agrees at its sole cost and expense to remove or cause that the removal on or prior to the Closing Date of the followingfollowing shall constitute Unpermitted Exceptions: (i) any mortgages, deeds of trust or other security interests for any financing incurred by Seller (other than the Existing Financing) and any other monetary liens (including mechanics’ lienswhich is not assumed by Purchaser in its discretion under this Agreement, tax liens, judgment liens and the like); (ii) Taxes relating to any period prior to the Closing Date which constitute Title Exceptions which would be delinquent if unpaid at the Closing; provided, howeverand, that if any such Taxes are payable in installments, such obligation shall also apply only to the extent any such installments which would otherwise be delinquent if unpaid at payable after the Closing; Closing Date unless Purchaser receives a credit for such Taxes under Section XI.B, and (iii) any lien, or right mechanics liens and other Title Exceptions objected to by Purchaser which may be removed in accordance with its terms by payment of a lien, for services, labor or material heretofore or hereafter furnished, imposed by law; liquidated amount which in the aggregate do not exceed One Hundred Thousand and no/100 Dollars (iv$100,000.00) monetary defects and liens first appearing subsequent to the effective date of the title commitment but prior to the Closing (collectively, the “Monetary DefectsMandatory Unpermitted Exceptions”). If Seller and Title Company are willing and able to cure or resolve the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion (Seller having the right but not the obligation to do so to the extent such Unpermitted Exceptions do not constitute Monetary Defects, which Seller is obligated to so remove at or before Closing), then Seller and Purchaser will enter into a side letter with the Title Company setting forth which Title Exceptions and Survey Defects shall constitute the Unpermitted Exceptions, attaching proforma Title Commitments specifying only those exceptions which are not Unpermitted Exceptions and containing those corrections and endorsements specifically required by Purchaser (the “Title and Survey Side Letter”). If Seller and/or Title Company are unwilling or unable to remove or insure over the Unpermitted Exceptions to the satisfaction of Purchaser in Purchaser’s sole and absolute discretion, then Seller will deliver written notice to Purchaser specifying which Unpermitted Exceptions Seller is unwilling to cure at least ten (10) days following to the expiration of the Due Diligence Period (Seller’s silence to be deemed Seller’s election not to cure such Unpermitted Exceptions), and Purchaser’s sole and exclusive remedy shall be to terminate this Master Purchase and Sale Agreement within the five (5) Business Days of the expiration of said ten (10) day period or to proceed to Closing with the Title Policies delivered at Closing to contain said uncured Unpermitted Exceptions without a reduction in or credit to the Purchase Price. Purchaser shall have the right to a refund of the Deposit and the Deposit shall be promptly returned to Purchaser following the termination of this Master Purchase and Sale Agreement pursuant to this Section 5.3.1.