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DRAFT <br />16.3 - Entire Agreement. This Agreement, together with the attached exhibits, contains all of the <br />terms and conditions of the agreement between the parties, and any and all prior and contemporaneous oral <br />and written agreements are merged herein. <br />16.4 - Modifications and Waivers. This Agreement cannot be changed nor can any provision of this <br />Agreement, or any right or remedy of any party, be waived orally. Changes and waivers can only be made in <br />writing, and the change or waiver must be signed by the party against whom the change or waiver is sought to <br />be enforced. Any waiver of any provision of this Agreement, or any right or remedy, given on any one or <br />more occasions shall not be deemed a waiver with respect to any other occasion. <br />16.5 - Parties Bound. This Agreement shall be binding upon and inure to the benefit of the heirs, <br />executors, successors, and assigns of the parties hereto. <br />16.6 - Section Headings. The captions in this Agreement are for convenience only and shall not be <br />considered a pail of or affect the construction or interpretation of any provision of this Agreement. <br />16.7 - Severability. If one or more of the provisions of this Agreement or the application thereof shall <br />be invoked, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining <br />provisions or any other application thereof shall in no way be affected or impaired. <br />16.8 - Time of the Essence. The parties agree that time is of the essence with regard to obligations to <br />be performed prior to Closing and that the failure of a patty to perform any act on or before the date specified <br />herein for performance thereof shall be deemed cause for the termination hereof by the other party, without <br />prejudice to other remedies available for default hereunder. Except as may otherwise be set forth herein, any <br />performance provided for herein shall be timely made if completed no later than 5:00 p.m., local time at the <br />location of the Property, on the day of performance. <br />16.9 — Back -up Offers. Buyer understands and acknowledges that, prior to Closing, Seller may enter <br />into back -up agreements to sell the Property in the event that Buyer fails to purchase the Property, provided <br />that said back -up offers do not affect Buyer's rights hereunder. <br />16.10 — Confidentiality. Without the prior written consent of the other parry, neither Seller nor Buyer <br />will disclose to any person, other than their legal counsel or a proposed lender, either the fact that this <br />Agreement has been entered into or any of the terms, conditions or other facts with respect thereto, including <br />the status thereof; provided, that either party hereto may make such disclosure if compelled by court order or <br />to comply with the requirements of any law, governmental order or regulation; provided, further, that Seller <br />may disclose the existence of this Agreement to a back -up buyer in connection with any back -up offer as <br />contemplated by Section 16.9 above. <br />16.11 - Further Action. The parties shall at any time, and from time to time on and after the Closing <br />Date, upon the request of either, do, execute, acknowledge and deliver all such further acts, deeds, <br />assignments and other instruments as may be reasonably required for the consummation of this transaction. <br />16.12 - Construction. This Agreement shall not be construed more strictly against one party than <br />against the other merely by virtue of the fact that it may have been prepared by counsel for one of the patties, <br />