Common use of Purchaser’s Defect Notices Clause in Contracts

Purchaser’s Defect Notices. Purchaser shall have until the date which is five (5) business days after Purchaser’s receipt of the Title Report, copies of all documents referenced therein and the Updated Survey (the “Title Review Period”) (provided, however, that the Title Review Period shall terminate no later than June 19, 2006 notwithstanding the date upon which Purchaser receives the Updated Survey) to give Seller and Escrow Holder written notice (“Purchaser’s Defect Notice”) of Purchaser’s disapproval or conditional approval of any matters shown in the Title Report or Updated Survey (each a “Disapproved Exception”). The failure of Purchaser to give Purchaser’s Defect Notice on or before the Title Review Period shall be conclusively deemed to constitute Purchaser’s approval of the condition of title to the Property; provided, however, that Purchaser shall be deemed to have timely delivered a Purchaser’s Defect Notice with respect to any Updated Survey if such Purchaser’s Defect Notice is delivered within two (2) business days after receipt thereof. If Purchaser disapproves or conditionally approves in writing any matter of title shown in the Title Report or the Updated Survey, as applicable, then Seller may, but shall have no obligation to, on or before the second (2nd) business day after receipt of Purchaser’s Defect Notice (“Seller’s 7 Election Period”), elect to eliminate or ameliorate to Purchaser’s reasonable satisfaction, the disapproved or conditionally approved title matters, prior to the Closing, by giving Purchaser written notice (“Seller’s Title Notice”) of those disapproved or conditionally approved title matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing; provided, that, Seller shall have no obligation to pay any consideration or incur any liability in order to eliminate or ameliorate such disapproved title matters, provided that Seller agrees to remove the Mandatory Cure Items (as defined in Section 7.4.2). If Seller does not elect to eliminate or ameliorate any disapproved or conditionally approved title matters, or if Purchaser disapproves Seller’s Title Notice, or if Seller fails to timely deliver Seller’s Title Notice, then Purchaser shall have the right, upon delivery to Seller and Escrow Holder (on or before the Approval Date or, with respect to matters objected to in the Updated Survey, on or before the date that is two (2) business days after Seller’s refusal, or deemed refusal, to cure such matters) of a written notice, to either: (a) waive its prior disapproval, in which event said disapproved matters shall be deemed unconditionally approved; or (b) terminate this Agreement and the Escrow created pursuant hereto. Failure to take either one of the actions described in (a) and (b) above shall be deemed to be Purchaser’s election to take the action described in (b) above. If, in Seller’s Title Notice, Seller has agreed to either eliminate or ameliorate to Purchaser’s satisfaction by the Closing certain disapproved or conditionally approved title matters described in Purchaser’s Defect Notice, but Seller is unable to do so, then Purchaser shall have the right (which shall be Purchaser’s sole and exclusive right or remedy for such failure), upon delivery to Seller and Escrow Holder (on or before the Closing Date) of a written notice to either: (x) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (y) terminate this Agreement and the Escrow created pursuant hereto, in which event Purchaser shall be entitled to the return of the Deposit. Failure to take either one of the actions described in (x) and (y) above shall be deemed to be Purchaser’s election to take the action described in (y) above. In the event this Agreement is terminated by Purchaser pursuant to the provisions of this Section, neither party shall have any further rights or obligations hereunder except that the indemnity obligations of Purchaser set forth in Section 6.2 above, legal fees in Section 19 below and the covenants of Purchaser set forth in Section 6.3 hereof shall survive any such termination.

Purchaser’s Defect Notices. Purchaser shall accept title to the Land and the Improvements subject to all of the Existing Permitted Exceptions. If the Updated Survey or the Title Commitment discloses exceptions to title other than the Existing Permitted Exceptions (such exceptions to title being referred to as the “Disclosed Exceptions”), then Purchaser shall have until 5:00 p.m. (Chicago time) on the date that is ten (10) days prior to the Approval Date, within which is to notify Seller of any such Disclosed Exceptions to which Purchaser reasonably objects (any such notice, a “Defect Notice”) on the grounds that such Disclosed Exceptions either (a) render title unmarketable or uninsurable at regular rates, or (b) materially and adversely affect Purchaser’s intended use of the Property or the value of the Property. Within two (2) days after receipt of the Defect Notice but in no event later than the Approval Date, Seller shall deliver to Purchaser a Seller’s Response Notice (as defined below) with respect to the Defect Notice that Purchaser delivers to Seller pursuant to the preceding sentence. Notwithstanding anything contained herein to the contrary, Purchaser shall have no right to object to any matters disclosed by the Updated Survey or the Title Commitment (or any further updates to either of the foregoing) unless Purchaser delivers a Defect Notice with respect to the Title Commitment and/or the Updated Survey, as the case may be, at least two (2) days prior to the Approval Date. Any exceptions to title (other than the Existing Permitted Exceptions and the Disclosed Exceptions) that arise between the effective date of the Title Commitment or the Updated Survey, as the case may be, and the Closing are referred to herein as “New Defects.” On the express condition that Purchaser has timely delivered a Defect Notice with respect to the original Title Commitment or the Updated Survey, as the case may be, Purchaser shall have five (5) business days after Purchaser’s its receipt of the Title Report, copies written notice or updated title evidence reflecting any New Defects within which to notify Seller in writing of all documents referenced therein and the Updated Survey (the “Title Review Period”) (provided, however, that the Title Review Period shall terminate no later than June 19, 2006 notwithstanding the date upon any such New Defects to which Purchaser receives reasonably objects on the Updated Survey) to give Seller and Escrow Holder written notice (“Purchaser’s Defect Notice”) of Purchaser’s disapproval or conditional approval of any matters shown in the Title Report or Updated Survey (each a “Disapproved Exception”). The failure of Purchaser to give Purchaser’s Defect Notice on or before the Title Review Period shall be conclusively deemed to constitute Purchaser’s approval of the condition of title to the Property; provided, however, grounds that Purchaser shall be deemed to have timely delivered a Purchaser’s Defect Notice with respect to any Updated Survey if such Purchaser’s Defect Notice is delivered within two (2) business days after receipt thereof. If Purchaser disapproves or conditionally approves in writing any matter of title shown in the Title Report or the Updated Survey, as applicable, then Seller may, but shall have no obligation to, on or before the second (2nd) business day after receipt of Purchaser’s Defect Notice (“Seller’s 7 Election Period”), elect to eliminate or ameliorate to Purchaser’s reasonable satisfaction, the disapproved or conditionally approved title matters, prior to the Closing, by giving Purchaser written notice (“Seller’s Title Notice”) of those disapproved or conditionally approved title matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing; provided, that, Seller shall have no obligation to pay any consideration or incur any liability in order to eliminate or ameliorate such disapproved title matters, provided that Seller agrees to remove the Mandatory Cure Items (as defined in Section 7.4.2). If Seller does not elect to eliminate or ameliorate any disapproved or conditionally approved title matters, or if Purchaser disapproves Seller’s Title Notice, or if Seller fails to timely deliver Seller’s Title Notice, then Purchaser shall have the right, upon delivery to Seller and Escrow Holder (on or before the Approval Date or, with respect to matters objected to in the Updated Survey, on or before the date that is two (2) business days after Seller’s refusal, or deemed refusal, to cure such matters) of a written notice, to either: (a) waive its prior disapproval, in which event said disapproved matters shall be deemed unconditionally approved; or (b) terminate this Agreement and the Escrow created pursuant hereto. Failure to take New Defects either one of the actions described in (a) and (b) above shall be deemed to be Purchaser’s election to take the action described in (b) above. If, in Seller’s Title Notice, Seller has agreed to either eliminate or ameliorate to Purchaser’s satisfaction by the Closing certain disapproved or conditionally approved title matters described in Purchaser’s Defect Notice, but Seller is unable to do so, then Purchaser shall have the right (which shall be Purchaser’s sole and exclusive right or remedy for such failure), upon delivery to Seller and Escrow Holder (on or before the Closing Date) of a written notice to either: (x) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; render title unmarketable or uninsurable at regular rates or (y) terminate this Agreement materially and the Escrow created pursuant hereto, in which event Purchaser shall be entitled to the return adversely affect Purchaser’s intended use of the Deposit. Failure to take either one Property or the value of the actions described in (x) and (y) above shall be deemed to be Purchaser’s election to take the action described in (y) above. In the event this Agreement is terminated by Purchaser pursuant to the provisions of this Section, neither party shall have any further rights or obligations hereunder except that the indemnity obligations of Purchaser set forth in Section 6.2 above, legal fees in Section 19 below and the covenants of Purchaser set forth in Section 6.3 hereof shall survive any such terminationProperty.

Purchaser’s Defect Notices. Purchaser shall accept title to the Land and the Improvements subject to all of the Existing Permitted Exceptions. If the Updated Survey or the Title Commitment discloses exceptions to title other than the Existing Permitted Exceptions (such exceptions to title being referred to as the “Disclosed Exceptions”), then Purchaser shall have until 5:00 p.m. (Chicago time) on the date that is five (5) days prior to the Approval Date, within which is to notify Seller of any such Disclosed Exceptions to which Purchaser reasonably objects (any such notice, a “Defect Notice”) on the grounds that such Disclosed Exceptions either (a) render title unmarketable or uninsurable at regular rates, or (b) materially and adversely affect Purchaser’s intended use of the Property or the value of the Property. Within two (2) days after receipt of the Defect Notice but in no event later than the Approval Date, Seller shall deliver to Purchaser a Seller’s Response Notice (as defined below) with respect to the Defect Notice that Purchaser delivers to Seller pursuant to the preceding sentence. Notwithstanding anything contained herein to the contrary, Purchaser shall have no right to object to any matters disclosed by the Updated Survey or the Title Commitment (or any further updates to either of the foregoing) unless Purchaser delivers a Defect Notice with respect to the Title Commitment and/or the Updated Survey, as the case may be, at least two (2) days prior to the Approval Date. Any exceptions to title (other than the Existing Permitted Exceptions and the Disclosed Exceptions) that arise between the effective date of the Title Commitment or the Updated Survey, as the case may be, and the Closing are referred to herein as “New Defects.” On the express condition that Purchaser has timely delivered a Defect Notice with respect to the original Title Commitment or the Updated Survey, as the case may be, Purchaser shall have five (5) business days after Purchaser’s its receipt of the Title Report, copies written notice or updated title evidence reflecting any New Defects within which to notify Seller in writing of all documents referenced therein and the Updated Survey (the “Title Review Period”) (provided, however, that the Title Review Period shall terminate no later than June 19, 2006 notwithstanding the date upon any such New Defects to which Purchaser receives reasonably objects on the Updated Survey) to give Seller and Escrow Holder written notice (“Purchaser’s Defect Notice”) of Purchaser’s disapproval or conditional approval of any matters shown in the Title Report or Updated Survey (each a “Disapproved Exception”). The failure of Purchaser to give Purchaser’s Defect Notice on or before the Title Review Period shall be conclusively deemed to constitute Purchaser’s approval of the condition of title to the Property; provided, however, grounds that Purchaser shall be deemed to have timely delivered a Purchaser’s Defect Notice with respect to any Updated Survey if such Purchaser’s Defect Notice is delivered within two (2) business days after receipt thereof. If Purchaser disapproves or conditionally approves in writing any matter of title shown in the Title Report or the Updated Survey, as applicable, then Seller may, but shall have no obligation to, on or before the second (2nd) business day after receipt of Purchaser’s Defect Notice (“Seller’s 7 Election Period”), elect to eliminate or ameliorate to Purchaser’s reasonable satisfaction, the disapproved or conditionally approved title matters, prior to the Closing, by giving Purchaser written notice (“Seller’s Title Notice”) of those disapproved or conditionally approved title matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing; provided, that, Seller shall have no obligation to pay any consideration or incur any liability in order to eliminate or ameliorate such disapproved title matters, provided that Seller agrees to remove the Mandatory Cure Items (as defined in Section 7.4.2). If Seller does not elect to eliminate or ameliorate any disapproved or conditionally approved title matters, or if Purchaser disapproves Seller’s Title Notice, or if Seller fails to timely deliver Seller’s Title Notice, then Purchaser shall have the right, upon delivery to Seller and Escrow Holder (on or before the Approval Date or, with respect to matters objected to in the Updated Survey, on or before the date that is two (2) business days after Seller’s refusal, or deemed refusal, to cure such matters) of a written notice, to either: (a) waive its prior disapproval, in which event said disapproved matters shall be deemed unconditionally approved; or (b) terminate this Agreement and the Escrow created pursuant hereto. Failure to take New Defects either one of the actions described in (a) and (b) above shall be deemed to be Purchaser’s election to take the action described in (b) above. If, in Seller’s Title Notice, Seller has agreed to either eliminate or ameliorate to Purchaser’s satisfaction by the Closing certain disapproved or conditionally approved title matters described in Purchaser’s Defect Notice, but Seller is unable to do so, then Purchaser shall have the right (which shall be Purchaser’s sole and exclusive right or remedy for such failure), upon delivery to Seller and Escrow Holder (on or before the Closing Date) of a written notice to either: (x) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; render title unmarketable or uninsurable at regular rates or (y) terminate this Agreement materially and the Escrow created pursuant hereto, in which event Purchaser shall be entitled to the return adversely affect Purchaser’s intended use of the Deposit. Failure to take either one Property or the value of the actions described in (x) and (y) above shall be deemed to be Purchaser’s election to take the action described in (y) above. In the event this Agreement is terminated by Purchaser pursuant to the provisions of this Section, neither party shall have any further rights or obligations hereunder except that the indemnity obligations of Purchaser set forth in Section 6.2 above, legal fees in Section 19 below and the covenants of Purchaser set forth in Section 6.3 hereof shall survive any such terminationProperty.

Purchaser’s Defect Notices. Purchaser shall accept title to the Land and the Improvements subject to all of the Existing Permitted Exceptions. If the Updated Survey or the Title Commitment discloses exceptions to title other than the Existing Permitted Exceptions (such exceptions to title being referred to as the “Disclosed Exceptions”), then Purchaser shall have until 5:00 p.m. (Chicago time) on the later of the date which that is five (5) business days after Purchaser’s receipt of prior to the Approval Date and the date on which Purchaser has received both the Title Report, copies of all documents referenced therein Commitment and the Updated Survey (the “Title Review Period”) (providedSurvey, however, that the Title Review Period shall terminate no later than June 19, 2006 notwithstanding the date upon within which to notify Seller of any such Disclosed Exceptions to which Purchaser receives the Updated Survey) to give Seller and Escrow Holder written notice reasonably objects (any such notice, a “Purchaser’s Defect Notice”) of on the grounds that such Disclosed Exceptions either (a) render title unmarketable or uninsurable at regular rates, or (b) materially and adversely affect Purchaser’s disapproval intended use of the Property or conditional approval the value of the Property. Notwithstanding anything contained herein to the contrary, Purchaser shall have no right to object to any matters shown in disclosed by the Updated Survey or the Title Report Commitment (or Updated Survey (each a “Disapproved Exception”). The failure of Purchaser any further updates to give Purchaser’s Defect Notice on or before the Title Review Period shall be conclusively deemed to constitute Purchaser’s approval either of the condition of title to the Property; provided, however, that foregoing) unless Purchaser shall be deemed to have timely delivered delivers a Purchaser’s Defect Notice with respect to any the Title Commitment and/or the Updated Survey, within the earlier of the date that is five (5) business days prior to the Approval Date and the date on which Purchaser has received both the Title Commitment and the Survey. If the Title Commitment, the Updated Survey if such or any update to either of the foregoing that occurs prior to Closing discloses any exceptions other than the Existing Permitted Exceptions that do not either (i) render title unmarketable or uninsurable at regular rates or (ii) materially and adversely affect Purchaser’s Defect Notice is delivered within two intended use of the Property or the value of the Property, such exceptions shall be deemed Permitted Exceptions for all relevant purposes under this Agreement. Any exceptions to title (2other than the Existing Permitted Exceptions and the Disclosed Exceptions) that arise between the effective date of the Title Commitment or Seller’s receipt of an Updated Survey, as the case may be, and the Closing are referred to herein as “New Defects.” Purchaser shall have five (5) business days after its receipt thereof. If Purchaser disapproves of written notice or conditionally approves updated title evidence reflecting any New Defects within which to notify Seller in writing of any matter of title shown in such New Defects to which Purchaser reasonably objects on the Title Report or the Updated Survey, as applicable, then Seller may, but shall have no obligation to, on or before the second (2nd) business day after receipt of Purchaser’s Defect Notice (“Seller’s 7 Election Period”), elect to eliminate or ameliorate to Purchaser’s reasonable satisfaction, the disapproved or conditionally approved title matters, prior to the Closing, by giving Purchaser written notice (“Seller’s Title Notice”) of those disapproved or conditionally approved title matters, if any, which Seller agrees to so eliminate or ameliorate by the Closing; provided, that, Seller shall have no obligation to pay any consideration or incur any liability in order to eliminate or ameliorate grounds that such disapproved title matters, provided that Seller agrees to remove the Mandatory Cure Items (as defined in Section 7.4.2). If Seller does not elect to eliminate or ameliorate any disapproved or conditionally approved title matters, or if Purchaser disapproves Seller’s Title Notice, or if Seller fails to timely deliver Seller’s Title Notice, then Purchaser shall have the right, upon delivery to Seller and Escrow Holder (on or before the Approval Date or, with respect to matters objected to in the Updated Survey, on or before the date that is two (2) business days after Seller’s refusal, or deemed refusal, to cure such matters) of a written notice, to either: New Defects either (a) waive its prior disapproval, in which event said disapproved matters shall be deemed unconditionally approved; render title unmarketable or uninsurable at regular rates or (b) terminate this Agreement materially and the Escrow created pursuant hereto. Failure to take either one adversely affect Purchaser’s intended use of the actions described in (a) and (b) above shall be deemed to be Purchaser’s election to take Property or the action described in (b) above. If, in Seller’s Title Notice, Seller has agreed to either eliminate or ameliorate to Purchaser’s satisfaction by the Closing certain disapproved or conditionally approved title matters described in Purchaser’s Defect Notice, but Seller is unable to do so, then Purchaser shall have the right (which shall be Purchaser’s sole and exclusive right or remedy for such failure), upon delivery to Seller and Escrow Holder (on or before the Closing Date) of a written notice to either: (x) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (y) terminate this Agreement and the Escrow created pursuant hereto, in which event Purchaser shall be entitled to the return value of the Deposit. Failure to take either one of the actions described in (x) and (y) above shall be deemed to be Purchaser’s election to take the action described in (y) above. In the event this Agreement is terminated by Purchaser pursuant to the provisions of this Section, neither party shall have any further rights or obligations hereunder except that the indemnity obligations of Purchaser set forth in Section 6.2 above, legal fees in Section 19 below and the covenants of Purchaser set forth in Section 6.3 hereof shall survive any such terminationProperty.