Common use of Real Estate Due Diligence Clause in Contracts

Real Estate Due Diligence. (a) Within twenty (20) days of the date of this Agreement, the Seller shall deliver or cause to be delivered to the Purchaser a copy of the Seller's or each Business Sub's title insurance policies or, if the same is not within its possession or control, a deed recording reference (collectively, the "Title Materials") for each Owned Real Property and real property owned by any Transferred Sub, as applicable. Within thirty-five (35) days after the Purchaser's receipt of all of the Title Materials, the Purchaser will obtain an ALTA title commitment (or such other comparable form as may be available in the jurisdiction in which the property is located)(the "Title Commitment") from LandAmerica or Chicago Title Insurance Company and will notify the Seller in writing (the "Exception Notice") as to those title exceptions listed in each Title Commitment which it will not accept as permitted, provided, however, that Purchaser shall only be allowed to list title exceptions which materially interfere with the current use of any parcel of Owned Real Property or real property owned by a Transferred Sub or title exceptions which would reasonably be likely to have a material adverse effect on the ability of Purchaser to obtain financing with respect to any parcel of Owned Real Property or real property owned by a Transferred Sub (all such exceptions for which the Purchaser shall not have notified the Seller in the Exception Notice shall be deemed to be "Permitted Exceptions," as defined in this Agreement). In the event that the Purchaser fails to provide an Exception Notice to the Seller within thirty-five (35) days after Purchaser's receipt of all of the Title Materials, the Purchaser shall be deemed to have waived its right to object to matters shown on the Title Commitments, and all exceptions in the Title Commitment shall be deemed to be Permitted Exceptions. The Seller shall have until the Due Diligence Expiration Date to have all exceptions described in the Exception Notice removed from the Title Commitment or to have the Title Company commit to insure against any and all loss or damage that may be occasioned by any such unpermitted exceptions. If the Seller fails on or before the Due Diligence Expiration Date to reasonably demonstrate to the Purchaser that the unpermitted exceptions have been removed or, in the alternative, that the Seller has obtained a commitment for title insurance over such exceptions, then, in either such case, the Purchaser shall have the option to either (A) terminate this Agreement, whereupon the parties hereto shall have no further obligations hereunder or (B) proceed with the Closing, in which case the Seller shall pay the cost of removing any title exceptions listed in the Exception Notice or for insuring over such exceptions listed in the Exception Notice in each case, with respect to the real property owned by any Transferred Sub which is not a Domestic Transferred Sub, and all exceptions in the Title Commitment shall be deemed as Permitted Exceptions, provided however, that in the event such costs exceed Five Million Dollars ($5,000,000), either, at Purchaser's option, (i) the Agreement shall be terminated and the Seller shall within twenty (20) days after written demand by the Purchaser reimburse the Purchaser's reasonable, documented, out-of-pocket expenses and costs up to Five Million Dollars ($5,000,000) (including, without limitation, reasonable attorney's fees, expenses of its financial advisor, expenses of other consultants and the HSR filing fee) incurred in connection with the transactions contemplated by this Agreement or (ii) proceed with the Closing, in which case Seller shall pay up to Five Million Dollars ($5,000,000) to remove such exceptions or insure over such exceptions. If the Purchaser desires to obtain any title policy with respect to the Owned Real Property or real property owned by any Transferred Sub, it shall do so at its sole cost and expense (except as specifically provided in this Section 5.11(a)) and such title policy shall in no event be deemed a condition to Closing; provided that the Seller shall provide any affidavits or other documents reasonably required by the title company in order to issue such policy.

Real Estate Due Diligence. The Buyer shall use its commercially reasonable efforts to obtain as soon as practical (ai) Within twenty current ALTA/ACSM Land Title surveys for the Real Property (20collectively, “Surveys”), and (ii) days of preliminary reports on title for the date of this AgreementReal Property, issued by the Seller Title Company, each such preliminary report shall deliver or cause to be delivered to the Purchaser contain a copy of the Seller's or each Business Sub's title insurance policies or, if the same is not within its possession or control, a deed recording reference commitment (collectively, the "“Title Materials"Reports”) for each Owned Real Property and real property owned by any Transferred Sub, as applicable. Within thirty-five (35) days after the Purchaser's receipt of all of the Title MaterialsCompany to issue to the Buyer a title insurance policy on 2006 ALTA Owners Policy form (collectively, the Purchaser will obtain an ALTA “Buyer Title Insurance Policies”) insuring the fee simple interest of the Buyer in the Real Property on which the applicable Facility is located. The Buyer shall be solely responsible for the costs of the Surveys. The Title Reports shall be delivered with legible copies of all recorded exceptions to title commitment referred to therein to the extent reasonably available. The Title Policies shall be in the amount allocated to the Facilities and related Real Property in accordance with Exhibit “C”. The Sellers shall use their commercially reasonable efforts to cause all standard exceptions to be deleted from the Title Reports at Closing, including without limitation, executing Sellers’ affidavits, gap indemnities and the like. Prior to the expiration of the Due Diligence Period, the Buyer shall approve or disapprove in writing any matter(s) set forth in the Title Reports and Surveys, with any such notice of disapproval specifying the matter(s) to which the Buyer objects. The failure of the Buyer to disapprove any lien or other matter reflected in the Title Reports or Surveys prior to the expiration of the Due Diligence Period shall be deemed approval by the Buyer thereof. If the Buyer disapproves any lien or other matter reflected in the Title Reports or Surveys, the Sellers shall have five (5) Business Days from the date of such notice of disapproval in which to advise the Buyer whether or such other comparable form as not they are prepared to cure the same prior to the Closing (which cure may be available in effected by payment and discharge of the jurisdiction in which objectionable item or by causing the property is located)(the "Title Commitment"Company to remove the same as an exception or affirmatively insure over such item). The failure of the Sellers to respond within said five (5) from LandAmerica or Chicago Title Insurance Company and will notify the Seller in writing (the "Exception Notice") as to those title exceptions listed in each Title Commitment which it will not accept as permitted, provided, however, that Purchaser shall only be allowed to list title exceptions which materially interfere with the current use of any parcel of Owned Real Property or real property owned by a Transferred Sub or title exceptions which would reasonably be likely to have a material adverse effect on the ability of Purchaser to obtain financing with respect to any parcel of Owned Real Property or real property owned by a Transferred Sub (all such exceptions for which the Purchaser shall not have notified the Seller in the Exception Notice Business Day period shall be deemed to be "Permitted Exceptions," as defined an election by the Sellers not to cure. If the Sellers elect to cure any matter objected to by the Buyer, the Sellers shall have thirty (30) days to effectuate a cure, and the time for Closing shall be extended, if necessary. If the Sellers elect not to cure within said five (5) Business Day period (or are deemed to have elected not to cure) or fail to cure within said thirty (30) day period, the Buyer shall have five (5) Business Days thereafter in this Agreement). In the event that the Purchaser fails which to provide an Exception Notice to advise the Seller within thirty-five (35) days after Purchaser's receipt of all Parties in writing of the Title MaterialsBuyer’s election (x) to waive the matters to which the Buyer objected and which the Sellers are not prepared to cure or fail to cure within the applicable thirty (30) day period and to proceed to Closing, the Purchaser in which case such matters shall be deemed Permitted Exceptions or (y) to have waived its right terminate this Agreement in accordance with Article X. The failure of the Buyer to object to matters shown on the Title Commitments, and all exceptions in the Title Commitment respond within said five (5) Business Day period shall be deemed to be Permitted Exceptions. The Seller shall have until an election by the Due Diligence Expiration Date Buyer to have all exceptions described in the Exception Notice removed from the Title Commitment or to have the Title Company commit to insure against any and all loss or damage that may be occasioned by any such unpermitted exceptions. If the Seller fails on or before the Due Diligence Expiration Date to reasonably demonstrate to the Purchaser that the unpermitted exceptions have been removed or, in the alternative, that the Seller has obtained a commitment for title insurance over such exceptions, then, in either such case, the Purchaser shall have the option to either (A) terminate this Agreement. The Sellers shall pay, whereupon or cause to be paid, all monetary liens or encumbrances affecting or recorded against the parties hereto shall have no further obligations hereunder or (B) proceed with the Closing, in which case the Seller shall pay the cost of removing any title exceptions listed in the Exception Notice or for insuring over such exceptions listed in the Exception Notice in each case, with respect to the real property owned by any Transferred Sub which is not a Domestic Transferred Sub, and all exceptions in the Title Commitment shall be deemed as Permitted Exceptions, provided however, that in the event such costs exceed Five Million Dollars ($5,000,000), either, at Purchaser's option, (i) the Agreement shall be terminated and the Seller shall within twenty (20) days after written demand by the Purchaser reimburse the Purchaser's reasonable, documented, out-of-pocket expenses and costs up to Five Million Dollars ($5,000,000) (including, without limitation, reasonable attorney's fees, expenses of its financial advisor, expenses of other consultants and the HSR filing fee) incurred in connection with the transactions contemplated by this Agreement or (ii) proceed with the Closing, in which case Seller shall pay up to Five Million Dollars ($5,000,000) to remove such exceptions or insure over such exceptions. If the Purchaser desires to obtain any title policy with respect to the Owned Real Property or real property owned by any Transferred Sub, it shall do so other than Permitted Exceptions that are not to be paid off from the proceeds at its sole cost and expense (except as specifically provided in this Section 5.11(a)) and such title policy shall in no event be deemed a condition to Closing; provided that the Seller shall provide any affidavits or other documents reasonably required by the title company in order to issue such policy.. 50

Real Estate Due Diligence. (a) Within twenty (20) days of the date of this Agreement, the Seller shall deliver or cause to be delivered to the Purchaser a copy of the Seller's ’s or each Business Sub's ’s title insurance policies or, if the same is not within its possession or control, a deed recording reference (collectively, the "“Title Materials"”) for each Owned Real Property and real property owned by any Transferred Sub, as applicable. Within thirty-five (35) days after the Purchaser's ’s receipt of all of the Title Materials, the Purchaser will obtain an ALTA title commitment (or such other comparable form as may be available in the jurisdiction in which the property is located)(the "“Title Commitment"”) from LandAmerica or Chicago Title Insurance Company and will notify the Seller in writing (the "“Exception Notice"”) as to those title exceptions listed in each Title Commitment which it will not accept as permitted, provided, however, that Purchaser shall only be allowed to list title exceptions which materially interfere with the current use of any parcel of Owned Real Property or real property owned by a Transferred Sub or title exceptions which would reasonably be likely to have a material adverse effect on the ability of Purchaser to obtain financing with respect to any parcel of Owned Real Property or real property owned by a Transferred Sub (all such exceptions for which the Purchaser shall not have notified the Seller in the Exception Notice shall be deemed to be "“Permitted Exceptions," ” as defined in this Agreement). In the event that the Purchaser fails to provide an Exception Notice to the Seller within thirty-five (35) days after Purchaser's ’s receipt of all of the Title Materials, the Purchaser shall be deemed to have waived its right to object to matters shown on the Title Commitments, and all exceptions in the Title Commitment shall be deemed to be Permitted Exceptions. The Seller shall have until the Due Diligence Expiration Date to have all exceptions described in the Exception Notice removed from the Title Commitment or to have the Title Company commit to insure against any and all loss or damage that may be occasioned by any such unpermitted exceptions. If the Seller fails on or before the Due Diligence Expiration Date to reasonably demonstrate to the Purchaser that the unpermitted exceptions have been removed or, in the alternative, that the Seller has obtained a commitment for title insurance over such exceptions, then, in either such case, the Purchaser shall have the option to either (A) terminate this Agreement, whereupon the parties hereto shall have no further obligations hereunder or (B) proceed with the Closing, in which case the Seller shall pay the cost of removing any title exceptions listed in the Exception Notice or for insuring over such exceptions listed in the Exception Notice in each case, with respect to the real property owned by any Transferred Sub which is not a Domestic Transferred Sub, and all exceptions in the Title Commitment shall be deemed as Permitted Exceptions, provided however, that in the event such costs exceed Five Million Dollars ($5,000,000), either, at Purchaser's ’s option, (i) the Agreement shall be terminated and the Seller shall within twenty (20) days after written demand by the Purchaser reimburse the Purchaser's ’s reasonable, documented, out-of-pocket expenses and costs up to Five Million Dollars ($5,000,000) (including, without limitation, reasonable attorney's ’s fees, expenses of its financial advisor, expenses of other consultants and the HSR filing fee) incurred in connection with the transactions contemplated by this Agreement or (ii) proceed with the Closing, in which case Seller shall pay up to Five Million Dollars ($5,000,000) to remove such exceptions or insure over such exceptions. If the Purchaser desires to obtain any title policy with respect to the Owned Real Property or real property owned by any Transferred Sub, it shall do so at its sole cost and expense (except as specifically provided in this Section 5.11(a)) and such title policy shall in no event be deemed a condition to Closing; provided that the Seller shall provide any affidavits or other documents reasonably required by the title company in order to issue such policy.