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(e) The Developer shall have obtained issuance of a building permit for construction of the Development by paying the required building permit fees. (0 A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing an ALTA 2006 LP-10 Lender's Policy of insurance insuring the lien priority of the City Deed of Trust in the amount of the City Loan subject only to such liens approved by the City in the Financing Plan as prior to the lien of the City Deed of Trust and such exceptions and exclusions as may be reasonably acceptable to the City and containing such endorsements as the City may reasonably require. (g) There shall exist no condition, event or act which would constitute a breach or default under this Agreement. (h) All representations and warranties of the Developer contained in any part of this Agreement shall be true and correct in all material respects. Section 8.5 Condition of Title. On the Closing Date, the Developer shall have insurable leasehold interest to the Site which shall be free and clear of all liens, encumbrances, clouds and conditions, rights of occupancy or possession, except as approved by Developer. If on or before the Closing, a title defect not caused by Developer, its agents or Affiliates and which would materially and adversely affect the Development arises and which the City does not elect to cure, (which election shall be at City's sole discretion, excepted as provided below), the Developer may by written notice to the City either (i) terminate this Agreement, or(ii) accept the Site under the Ground Lease(s). The City shall be obligated, at City's expense, to cure any title defect which is curable by the payment of money or the posting of a bond if such title defect arises after the date of this Agreement and on or before the Closing, and is caused solely by the City, its agents or employees. Section 8.6 Condition of Site. If during the performance of the predevelopment obligations, Hazardous Materials are discovered on the Site, the Developer at its option may terminate this Agreement if in the Developer's reasonable determination such Hazardous Materials are not able to be remediated to the level necessary for the construction of the Development. Upon such termination the City Loan shall be forgiven pursuant to Section 14.5. Section 8.7 Failure of Conditions Precedent; Termination. In the event that each of the conditions set forth in Section 7.1 is not fulfilled, or waived by City pursuant to Section 7.1(b), City may, at its option, terminate this Agreement and the Escrow opened hereunder, thereby releasing the parties from further obligations hereunder. In the event that each of the conditions set forth in Section 7.2 is not fulfilled, or waived by Developer pursuant to Section 7.2 (b), Developer may, at its option, terminate this Agreement and the Escrow opened hereunder, thereby releasing the parties from further obligations hereunder. In the event this Agreement is terminated, all documents and funds delivered by Developer to City or Escrow Agent shall be returned immediately to Developer and all documents and funds delivered by City to Developer or Escrow Agent shall be returned immediately to City. Nothing in this Section 8.7 shall be construed as releasing any party from liability for any default of its obligations hereunder or breach of its representations and warranties under this Agreement occurring prior to the termination of this Agreement and/or the Escrow to be opened hereunder. 19 191A52V1242198.13