Common use of Cure of Defects Clause in Contracts

Cure of Defects. Seller shall have the right, but not the obligation, to cure any such Defect within fifteen (15) Business Days after its receipt of the Defect Notice, or in the case of any Defect which cannot with due diligence be cured within such fifteen (15) Business Day period, such later date by which such Defect can reasonably be cured, provided that Seller commences to cure such Defect within such fifteen (15) Business Day period and thereafter continues diligently and in good faith to cure the Defect, provided, further, that Seller's right to cure any Defect in accordance with the foregoing provisions is subject to compliance with the provisions of Section 2.01(c) of this Agreement applicable to Cure Choice Notices. In the event that Seller elects not to cure any such Defect or is unable to effect such cure prior to the Closing, the Company shall have the remedies provided in Section 2.01(c), this Section 2.01(d) and Section 14 hereof. Notwithstanding anything to the contrary contained in this Agreement, Seller shall have no obligation to cure any Permitted Exceptions and Defects (other than the Must Removes) and shall only have the obligation to cure the Must Removes. If Seller fails to cure any Defects other than the Must Removes, or if by the expiration of the cure period provided for above, Seller has failed to cure all Defects (other than the Must Removes), the Company shall nonetheless be obligated to proceed to close subject to any such Defects. In such event, at the Company's sole election, (a) the Company shall deduct from the applicable Consideration with respect to such Property the cost to cure ("Cost to Cure") such Defect as mutually agreed to by the Company and Seller in their commercially reasonable discretion (it being acknowledged and agreed that if the Cost to Cure exceeds the Consideration allocated to such Property, the Relevant Purchasers may allocate such deduction to the Consideration applicable to any other Properties), or (b) Seller shall place into escrow with the Title Company, pursuant to an escrow agreement in a form mutually agreed to by the parties, the cost to cure such Defect as mutually agreed to by the Company and Seller in their commercially reasonable discretion; provided, however, that in no event shall the amount of such deduction or such escrow, together with all amounts paid by Seller to cure Defects (other than the Must Removes) exceed (i) the portion of the Consideration allocated to such Property, with respect to any individual Property, or (ii) the Title Cap, in the aggregate. In no event shall an amount so deducted or escrowed reduce the amount available under the Title Cap; provided, however, that in the event that the subject Defect constitutes a Breach of the representations and warranties contained in Section 5.01(i) or Section 5.01(o), the Company shall not be entitled to indemnification with respect thereto pursuant to Section 5.05(a), to the extent of amounts in escrow or paid in accordance with this Section 2.01(d). Seller shall satisfy any Must Removes of record or, as an alternative to causing such Must Removes to be satisfied of record and provided that the Title Company agrees to omit such Must Remove(s) from the Title Policies: (i) bond or cause to be bonded such Must Remove(s), (ii) deliver or cause to be delivered to the Title Company, on the date of the Closing, instruments in recordable form and sufficient to satisfy such Must Remove(s) of record, together with the appropriate recording or filing costs, or (iii) deposit or cause to be deposited with the Title Company sufficient monies, acceptable to and reasonably requested by the Title Company, to assure the obtaining and recording of a satisfaction of the Must Remove(s). With respect to (a) any condition or state of facts that is set forth on any Title Commitment, Survey or Search as of date hereof or (b) any Defect (other than the Must Removes) for which the Company fails to deliver a Defect Notice thereof in accordance with this Agreement, such Defect or Defect, as the case may be, shall be deemed approved by the Company and shall constitute a Permitted Exception hereunder, and the Company shall be obligated to close without further deduction from the applicable Consideration with respect to any such items. In the event that any of the foregoing time periods applicable to the Relevant Purchasers' responses to various notices would otherwise extend beyond the Closing Date, the Closing Date shall, at the request of the Relevant Purchasers, be extended on a day for day basis in respect of such time period.

Cure of Defects. Seller Contributor shall have the right, but not the obligation, to cure any such Defect within fifteen (15) Business Days after its receipt of the Defect Notice, or in the case of any Defect which cannot with due diligence be cured within such fifteen (15) Business Day period, such later date by which such Defect can reasonably be cured, provided that Seller Contributor commences to cure such Defect within such fifteen (15) Business Day period and thereafter continues diligently and in good faith to cure the Defect, provided, further, that SellerContributor's right to cure any Defect in accordance with the foregoing provisions is subject to compliance with the provisions of Section 2.01(c) of this Agreement applicable to Cure Choice Notices. In the event that Seller Contributor elects not to cure any such Defect or is unable to effect such cure prior to the applicable Closing, the Company shall have the remedies provided in Section 2.01(c), this Section 2.01(d) and Section 14 hereof. Notwithstanding anything to the contrary contained in this Agreement, Seller Contributor shall have no obligation to cure any Permitted Exceptions and Defects (other than the Must Removes) and shall only have the obligation to cure the Must Removes. If Seller Contributor fails to cure any Defects other than the Must Removes, or if by the expiration of the cure period provided for above, Seller Contributor has failed to cure all Defects (other than the Must Removes), the Company shall nonetheless be obligated to proceed to close subject to any such Defects. In such event, at the Company's sole election, (a) the Company shall deduct from the applicable Tranche 1 Consideration, Tranche 2 Consideration or Tranche 3 Consideration with respect to such Property the cost to cure ("Cost to Cure") such Defect as mutually agreed to by the Company and Seller Contributor in their commercially reasonable discretion (it being acknowledged and agreed that, in the event that the Total Consideration allocated to such Property consists of both Contributed Equity Value and Cash Portion of Sales Price, such deduction shall be allocated to the Cash Portion of Sales Price with respect to such Property, provided, however, that if the Cost to Cure exceeds the Consideration allocated to Cash Portion of Sales Price in respect of such Property, the Relevant Purchasers Contributees may allocate such deduction to the Consideration Cash Portion of Sales Price applicable to any other Properties), or (b) Seller Contributor shall place into escrow with the Title Company, pursuant to an escrow agreement in a form mutually agreed to by the parties, the cost to cure such Defect as mutually agreed to by the Company and Seller Contributor in their commercially reasonable discretion; provided, however, that in no event shall the amount of such deduction or such escrow, together with all amounts paid by Seller Contributor to cure Defects (other than the Must Removes) exceed (i) the portion of the Total Consideration allocated to such Property, with respect to any individual Property, or (ii) the Title Cap, in the aggregate. In no event shall an amount so deducted or escrowed reduce the amount available under the Title Cap; provided, however, that in the event that the subject Defect constitutes a Breach of the representations and warranties contained in Section 5.01(i) or Section 5.01(o), the Company shall not be entitled to indemnification with respect thereto pursuant to Section 5.05(a), to the extent of amounts in escrow or paid in accordance with this Section 2.01(d). Seller Contributor shall satisfy any Must Removes of record or, as an alternative to causing such Must Removes to be satisfied of record and provided that the Title Company agrees to omit such Must Remove(s) from the Title Policies: (i) bond or cause to be bonded such Must Remove(s), (ii) deliver or cause to be delivered to the Title Company, on the date of the Closing, instruments in recordable form and sufficient to satisfy such Must Remove(s) of record, together with the appropriate recording or filing costs, or (iii) deposit or cause to be deposited with the Title Company sufficient monies, acceptable to and reasonably requested by the Title Company, to assure the obtaining and recording of a satisfaction of the Must Remove(s). With respect to (a) any condition or state of facts that is set forth on any Title Commitment, Survey or Search as of date hereof or (b) any Defect (other than the Must Removes) for which the Company fails to deliver a Defect Notice thereof in accordance with this Agreement, such Defect or Defect, as the case may be, shall be deemed approved by the Company and shall constitute a Permitted Exception hereunder, and the Company shall be obligated to close without further deduction from the applicable Total Consideration with respect to any such items. In the event that any of the foregoing time periods applicable to the Relevant Purchasers' Contributees responses to various notices would otherwise extend beyond the applicable Closing Date, the Closing Date shall, at the request of the Relevant PurchasersContributees, be extended on a day for day basis in respect of such time period.