Common use of Title and Surveys Clause in Contracts

Title and Surveys. (a) As noted in Section 5.1 above, Sellers have posted on the “CrescentConnect” website a current Title Commitment for each Asset, together with copies of the Exception Documents pertaining thereto, and the Existing Survey for each Asset. Sellers agree to provide Purchaser with a full size copy of each Existing Survey within five (5) Business Days after the Effective Date. (b) Before the expiration of the Inspection Period, Purchaser may elect to obtain a new survey for any Asset, or to revise, modify, or re-certify any Existing Survey (each a “New Survey”), but in that event Purchaser shall be responsible for obtaining and paying for each such New Survey (and in no event shall either the Inspection Period or the Closing Date hereunder be postponed or extended for any reason in connection therewith). If Purchaser obtains any New Surveys, Purchaser shall have each such New Survey certified to, and shall provide a copy to, the Title Company and Sellers. Upon Purchaser’s request and at Purchaser’s cost, Sellers shall exercise Commercially Reasonable Efforts to assist Purchaser in causing the surveyor of an Existing Survey for any Asset to revise, modify, date down and recertify such Existing Survey to Purchaser, its lender and the Title Company. (c) Purchaser may, on or before the date that is two (2) weeks after the Effective Date (the “Title Response Date”) deliver to Sellers written notice (“Title Objection Notice”) objecting to any exception to title set forth in any Title Commitment or any matter shown on any Existing Survey or New Survey which are not acceptable to Purchaser or that are exceptions for which Purchaser has not received the underlying information or documentation from Seller or the Title Company (collectively, “Title Defects”): provided, however, that in no event shall Purchaser object to any exceptions with respect to the Master Leases (provided they are terminated at Closing), Management Agreements, Tenant Leases, the Omni Lease, Material Agreements, Beaver Creek East West Agreements or memoranda of any of the foregoing, nor shall any such exceptions constitute “Title Defects” hereunder unless Purchaser exercises an option to elect not to assume any such agreement under this Agreement. Notwithstanding the foregoing, the Title Response Date as to Omni Austin shall be March 26, 2007. Any exception to title not objected to by Purchaser in the manner and within the time period specified in this Section 5.2(c) shall be deemed accepted by Purchaser and shall constitute a Permitted Exception hereunder, except that in no event shall Permitted Exceptions ever include Mandatory Seller Cure Items. Within five (5) Business Days following receipt of Purchaser’s Title Objection Notice, Sellers may deliver to Purchaser Sellers’ written notice (“Seller’s Response Notice”) setting forth which (if any) of the Title Defects Sellers are willing to cure or otherwise cause to be removed as exceptions in the applicable New Title Policy (the “Seller’s Initial Cure Items”). In the event that (i) Seller fails to timely deliver a Seller’s Response Notice, (ii) Seller delivers a Seller’s Response Notice but fails to cure or to cause the cure of any Seller Cure Items prior to the end of the Inspection Period, or (iii) Seller’s Response Notice fails to obligate Seller to cure all of the Title Defects which are not Mandatory Seller Cure Items, then Purchaser may, as Purchaser’s sole right and remedy, either (A) elect to terminate this Agreement and the Other Purchase and Sale Agreements (except the provisions hereof and thereof which expressly survive Closing) by written notice to Sellers delivered prior to the expiration of the Inspection Period pursuant to Section 5.3(c) of this Agreement, in which event the provisions of Section 10.1 of this Agreement governing a permitted termination by Purchaser of the entire Agreement and the Other Purchase and Sale Agreements shall apply, or (B) proceed to close, accepting title to the Property subject to the Title Defects specified in the Title Objection Notice (excluding Mandatory Seller Cure Items), in which case Purchaser shall be deemed to have waived in all respects such Title Defects; provided, however, notwithstanding the foregoing, in all events Sellers shall be obligated to cause the removal or cure of the Mandatory Seller Cure Items at or prior to the Closing and Purchaser shall be permitted to deduct from the Purchase Price the amount of Title Defects having an ascertainable amount that will be paid or cured by Purchaser after Closing. Notwithstanding anything to the contrary in this Agreement, Sellers expressly agree to cause to be cured or removed as exceptions from each New Title Policy the following (the “Mandatory Seller Cure Items”): (v) matters that Seller has elected in writing to cure as provided in Section 5.3(c) above, (w) except for those matters and circumstances described in the other subsections of this definition of the term “Mandatory Seller Cure Items”, title exceptions recorded with respect to an Asset by or with the consent of Sellers or their Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such Asset last delivered prior to March 22, 2007, or caused by or arising out of the actions of Sellers or their Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such Asset last delivered prior to March 22, 2007, and which could reasonably be expected to have a material adverse effect on the title, use, operation or value of such Asset, (x) mortgage liens placed on an Asset by a Seller or its Affiliate, (y) mechanics liens placed on an Asset in connection with work done at such Asset by or on behalf of Seller or its Affiliate, and (z) the Master Leases (if recorded, by memorandum or otherwise). (d) Except as expressly provided otherwise in this Agreement, the Sellers shall not be obligated hereunder to cure any Title Defects other than the Mandatory Seller Cure Items.

Title and Surveys. (a) As noted in Section 5.1 above, Sellers have posted on the “CrescentConnect” website a current Title Commitment for each the Asset, together with copies of the Exception Documents pertaining thereto, and the Existing Survey for each the Asset. Sellers agree Seller agrees to provide Purchaser with a full size copy of each the Existing Survey within five (5) Business Days after the Effective Date. (b) Before the expiration of the Inspection Period, Purchaser may elect to obtain a new survey for any the Asset, or to revise, modify, or re-certify any the Existing Survey (each a the “New Survey”), but in that event Purchaser shall be responsible for obtaining and paying for each such the New Survey (and in no event shall either the Inspection Period or the Closing Date hereunder be postponed or extended for any reason in connection therewith). If Purchaser obtains any the New SurveysSurvey, Purchaser shall have each such the New Survey certified to, and shall provide a copy to, the Title Company and Sellers. Upon Purchaser’s request and at Purchaser’s cost, Sellers shall exercise Commercially Reasonable Efforts to assist Purchaser in causing the surveyor of an the Existing Survey for any Asset to revise, modify, date down and recertify such the Existing Survey to Purchaser, its lender and the Title Company. (c) Purchaser may, on or before the date that is two (2) weeks after the Effective Date (the “Title Response Date”) deliver to Sellers written notice (“Title Objection Notice”) objecting to any exception to title set forth in any the Title Commitment or any matter shown on any the Existing Survey or New Survey which are not acceptable to Purchaser or that are exceptions for which Purchaser has not received the underlying information or documentation from Seller Sellers or the Title Company (collectively, “Title Defects”): ); provided, however, that in no event shall Purchaser object to any exceptions with respect to the Master Leases (provided they are terminated at Closing), Management Agreements, Tenant Leases, the Omni LeaseAgreement, Material Agreements, Beaver Creek East West Agreements or memoranda of any of the foregoing, nor shall any such exceptions constitute “Title Defects” hereunder unless Purchaser exercises an option to elect not to assume any such agreement under this Agreement. Notwithstanding the foregoing, the Title Response Date as to Omni Austin shall be March 26, 2007. Any exception to title not objected to by Purchaser in the manner and within the time period specified in this Section 5.2(c) shall be deemed accepted by Purchaser and shall constitute a Permitted Exception hereunder, except that in no event shall Permitted Exceptions ever include Mandatory Seller Cure Items. Within five (5) Business Days following receipt of Purchaser’s Title Objection Notice, Sellers may deliver to Purchaser Sellers’ written notice (“Seller’s Response Notice”) setting forth which (if any) of the Title Defects Sellers are willing to cure or otherwise cause to be removed as exceptions in the applicable New Title Policy (the “Seller’s Initial Cure Items”). In the event that (i) Seller fails to timely deliver a Seller’s Response Notice, (ii) Seller delivers a Seller’s Response Notice but fails to cure or to cause the cure of any Seller Cure Items prior to the end of the Inspection Period, or (iii) Seller’s Response Notice fails to obligate Seller to cure all of the Title Defects which are not Mandatory Seller Cure Items, then Purchaser may, as Purchaser’s sole right and remedy, either (A) elect to terminate this Agreement and the Other Purchase and Sale Agreements (except the provisions hereof and thereof which expressly survive Closing) by written notice to Sellers delivered prior to the expiration of the Inspection Period pursuant to Section 5.3(c) of this Agreement, in which event the provisions of Section 10.1 of this Agreement governing a permitted termination by Purchaser of the entire Agreement and the Other Purchase and Sale Agreements shall apply, or (B) proceed to close, accepting title to the Property subject to the Title Defects specified in the Title Objection Notice (excluding Mandatory Seller Cure Items), in which case Purchaser shall be deemed to have waived in all respects such Title Defects; provided, however, notwithstanding the foregoing, in all events Sellers shall be obligated to cause the removal or cure of the Mandatory Seller Cure Items at or prior to the Closing and Purchaser shall be permitted to deduct from the Purchase Price the amount of Title Defects having an ascertainable amount that will be paid or cured by Purchaser after Closing. Notwithstanding anything to the contrary in this Agreement, Sellers expressly agree to cause to be cured or removed as exceptions from each New Title Policy the following (the “Mandatory Seller Cure Items”): (v) matters that Seller has elected in writing to cure as provided in Section 5.3(c) above, (w) except for those matters and circumstances described in the other subsections of this definition of the term “Mandatory Seller Cure Items”, title exceptions recorded with respect to an the Asset by or with the consent of Sellers or their Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such the Asset last delivered prior to March 22, 2007, or caused by or arising out of the actions of Sellers or their Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such the Asset last delivered prior to March 22, 2007, and which could reasonably be expected to have a material adverse effect on the title, use, operation or value of such the Asset, (x) mortgage liens placed on an the Asset by a Seller or its Affiliate, (y) mechanics liens placed on an the Asset in connection with work done at such the Asset by or on behalf of Seller or its Affiliate, and (z) the Master Leases (if recorded, by memorandum or otherwise)intentionally omitted. (d) Except as expressly provided otherwise in this Agreement, the Sellers shall not be obligated hereunder to cure any Title Defects other than the Mandatory Seller Cure Items.

Title and Surveys. (a) As noted in Section 5.1 above, Sellers have Seller has posted on the “CrescentConnect” website a current Title Commitment for each the Asset, together with copies of the Exception Documents pertaining thereto, and the Existing Survey for each AssetSurvey. Sellers agree Seller agrees to provide Purchaser with a full size copy of each the Existing Survey within five (5) Business Days after the Effective Date. (b) Before the expiration of the Inspection Period, Purchaser may elect to obtain a new survey for any the Asset, or to revise, modify, or re-certify any the Existing Survey (each a the “New Survey”), but in that event Purchaser shall be responsible for obtaining and paying for each such the New Survey (and in no event shall either the Inspection Period or the Closing Date hereunder be postponed or extended for any reason in connection therewith). If Purchaser obtains any the New SurveysSurvey, Purchaser shall have each such the New Survey certified to, and shall provide a copy to, the Title Company and SellersSeller. Upon Purchaser’s request and at Purchaser’s cost, Sellers Seller shall exercise Commercially Reasonable Efforts to assist Purchaser in causing the surveyor of an the Existing Survey for any Asset to revise, modify, date down and recertify such the Existing Survey to Purchaser, its lender and the Title Company. (c) Purchaser may, on or before the date that is two (2) weeks after the Effective Date (the “Title Response Date”) deliver to Sellers Seller written notice (“Title Objection Notice”) objecting to any exception to title set forth in any the Title Commitment or any matter shown on any the Existing Survey or New Survey which are not acceptable to Purchaser or that are exceptions for which Purchaser has not received the underlying information or documentation from Seller or the Title Company (collectively, “Title Defects”): ); provided, however, that in no event shall Purchaser object to any exceptions with respect to the Master Leases (provided they are terminated at Closing), Management AgreementsAgreement, Tenant Leases, the Omni Lease, Material Agreements, Beaver Creek East West Agreements or memoranda of any of the foregoing, nor shall any such exceptions constitute “Title Defects” hereunder unless Purchaser exercises an option to elect not to assume any such agreement under this Agreement. Notwithstanding the foregoing, the Title Response Date as to Omni Austin shall be March 26, 2007. Any exception to title not objected to by Purchaser in the manner and within the time period specified in this Section 5.2(c) shall be deemed accepted by Purchaser and shall constitute a Permitted Exception hereunder, except that in no event shall Permitted Exceptions ever include Mandatory Seller Cure Items. Within five (5) Business Days following receipt of Purchaser’s Title Objection Notice, Sellers Seller may deliver to Purchaser Sellers’ Seller’s written notice (“Seller’s Response Notice”) setting forth which (if any) of the Title Defects Sellers are Seller is willing to cure or otherwise cause to be removed as exceptions in the applicable New Title Policy (the “Seller’s Initial Cure Items”). In the event that (i) Seller fails to timely deliver a Seller’s Response Notice, (ii) Seller delivers a Seller’s Response Notice but fails to cure or to cause the cure of any Seller Cure Items prior to the end of the Inspection Period, or (iii) Seller’s Response Notice fails to obligate Seller to cure all of the Title Defects which are not Mandatory Seller Cure Items, then Purchaser may, as Purchaser’s sole right and remedy, either (A) elect to terminate this Agreement and the Other Purchase and Sale Agreements (except the provisions hereof and thereof which expressly survive Closing) by written notice to Sellers Seller delivered prior to the expiration of the Inspection Period pursuant to Section 5.3(c) of this Agreement, in which event the provisions of Section 10.1 of this Agreement governing a permitted termination by Purchaser of the entire Agreement and the Other Purchase and Sale Agreements shall apply, or (B) proceed to close, accepting title to the Property subject to the Title Defects specified in the Title Objection Notice (excluding Mandatory Seller Cure Items), in which case Purchaser shall be deemed to have waived in all respects such Title Defects; provided, however, notwithstanding the foregoing, in all events Sellers Seller shall be obligated to cause the removal or cure of the Mandatory Seller Cure Items at or prior to the Closing and Purchaser shall be permitted to deduct from the Purchase Price the amount of Title Defects having an ascertainable amount that will be paid or cured by Purchaser after Closing. Notwithstanding anything to the contrary in this Agreement, Sellers Seller expressly agree agrees to cause to be cured or removed as exceptions from each the New Title Policy the following (the “Mandatory Seller Cure Items”): (v) matters that Seller has elected in writing to cure as provided in Section 5.3(c) above, (w) except for those matters and circumstances described in the other subsections of this definition of the term “Mandatory Seller Cure Items”, title exceptions recorded with respect to an the Asset by or with the consent of Sellers Seller or their its Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such the Asset last delivered prior to March 22, 2007, or caused by or arising out of the actions of Sellers Seller or their its Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such the Asset last delivered prior to March 22, 2007, and which could reasonably be expected to have a material adverse effect on the title, use, operation or value of such the Asset, (x) except for liens securing the Existing Debt, mortgage liens placed on an the Asset by a Seller or its Affiliate, (y) mechanics liens placed on an the Asset in connection with work done at such the Asset by or on behalf of Seller or its Affiliate, and (z) the Master Leases (if recorded, by memorandum or otherwise). (d) Except as expressly provided otherwise in this Agreement, the Sellers Seller shall not be obligated hereunder to cure any Title Defects other than the Mandatory Seller Cure Items.

Title and Surveys. (a) As noted in Section 5.1 above, Sellers have Seller has posted on the “CrescentConnect” website a current Title Commitment for each the Asset, together with copies of the Exception Documents pertaining thereto, and the Existing Survey for each AssetSurvey. Sellers agree Seller agrees to provide Purchaser with a full size copy of each the Existing Survey within five (5) Business Days after the Effective Date. (b) Before the expiration of the Inspection Period, Purchaser may elect to obtain a new survey for any the Asset, or to revise, modify, or re-certify any the Existing Survey (each a the “New Survey”), but in that event Purchaser shall be responsible for obtaining and paying for each such the New Survey (and in no event shall either the Inspection Period or the Closing Date hereunder be postponed or extended for any reason in connection therewith). If Purchaser obtains any the New SurveysSurvey, Purchaser shall have each such the New Survey certified to, and shall provide a copy to, the Title Company and SellersSeller. Upon Purchaser’s request and at Purchaser’s cost, Sellers Seller shall exercise Commercially Reasonable Efforts to assist Purchaser in causing the surveyor of an the Existing Survey for any Asset to revise, modify, date down and recertify such the Existing Survey to Purchaser, its lender and the Title Company. (c) Purchaser may, on or before the date that is two (2) weeks after the Effective Date (the “Title Response Date”) deliver to Sellers Seller written notice (“Title Objection Notice”) objecting to any exception to title set forth in any the Title Commitment or any matter shown on any the Existing Survey or New Survey which are not acceptable to Purchaser or that are exceptions for which Purchaser has not received the underlying information or documentation from Seller or the Title Company (collectively, “Title Defects”): ); provided, however, that in no event shall Purchaser object to any exceptions with respect to the Master Leases (provided they are terminated at Closing), Management AgreementsAgreement, Tenant Leases, the Omni Lease, Material Agreements, Beaver Creek East West Agreements or memoranda of any of the foregoing, nor shall any such exceptions constitute “Title Defects” hereunder unless Purchaser exercises an option to elect not to assume any such agreement under this Agreement. Notwithstanding the foregoing, the Title Response Date as to Omni Austin shall be March 26, 2007. Any exception to title not objected to by Purchaser in the manner and within the time period specified in this Section 5.2(c) shall be deemed accepted by Purchaser and shall constitute a Permitted Exception hereunder, except that in no event shall Permitted Exceptions ever include Mandatory Seller Cure Items. Within five (5) Business Days following receipt of Purchaser’s Title Objection Notice, Sellers Seller may deliver to Purchaser Sellers’ Seller’s written notice (“Seller’s Response Notice”) setting forth which (if any) of the Title Defects Sellers are Seller is willing to cure or otherwise cause to be removed as exceptions in the applicable New Title Policy (the “Seller’s Initial Cure Items”). In the event that (i) Seller fails to timely deliver a Seller’s Response Notice, (ii) Seller delivers a Seller’s Response Notice but fails to cure or to cause the cure of any Seller Cure Items prior to the end of the Inspection Period, or (iii) Seller’s Response Notice fails to obligate Seller to cure all of the Title Defects which are not Mandatory Seller Cure Items, then Purchaser may, as Purchaser’s sole right and remedy, either (A) elect to terminate this Agreement and the Other Purchase and Sale Agreements (except the provisions hereof and thereof which expressly survive Closing) by written notice to Sellers Seller delivered prior to the expiration of the Inspection Period pursuant to Section 5.3(c) of this Agreement, in which event the provisions of Section 10.1 of this Agreement governing a permitted termination by Purchaser of the entire Agreement and the Other Purchase and Sale Agreements shall apply, or (B) proceed to close, accepting title to the Property subject to the Title Defects specified in the Title Objection Notice (excluding Mandatory Seller Cure Items), in which case Purchaser shall be deemed to have waived in all respects such Title Defects; provided, however, notwithstanding the foregoing, in all events Sellers Seller shall be obligated to cause the removal or cure of the Mandatory Seller Cure Items at or prior to the Closing and Purchaser shall be permitted to deduct from the Purchase Price the amount of Title Defects having an ascertainable amount that will be paid or cured by Purchaser after Closing. Notwithstanding anything to the contrary in this Agreement, Sellers Seller expressly agree agrees to cause to be cured or removed as exceptions from each the New Title Policy the following (the “Mandatory Seller Cure Items”): (v) matters that Seller has elected in writing to cure as provided in Section 5.3(c) above, (w) except for those matters and circumstances described in the other subsections of this definition of the term “Mandatory Seller Cure Items”, title exceptions recorded with respect to an the Asset by or with the consent of Sellers Seller or their its Affiliates after 5:00 p.m. p. m. (Central time) on the effective date of the applicable Title Commitment pertaining to such the Asset last delivered prior to March 22, 2007, or caused by or arising out of the actions of Sellers Seller or their its Affiliates after 5:00 p.m. (Central time) on the effective date of the applicable Title Commitment pertaining to such the Asset last delivered prior to March 22, 2007, and which could reasonably be expected to have a material adverse effect on the title, use, operation or value of such the Asset, (x) mortgage liens placed on an the Asset by a Seller or its Affiliate, (y) mechanics liens placed on an the Asset in connection with work done at such the Asset by or on behalf of Seller or its Affiliate, and (z) the Master Leases (if recorded, by memorandum or otherwise). (d) Except as expressly provided otherwise in this Agreement, the Sellers Seller shall not be obligated hereunder to cure any Title Defects other than the Mandatory Seller Cure Items. (e) At or prior to Closing, Seller may terminate the Easement Dedication and Agreement dated August 24, 1973, by Greenway Plaza, Ltd., filed of record under Hxxxxx County Clerk’s File Number D963753 at File Code Number ###-##-#### in the Official Public Records of Real Property of Hxxxxx County, Texas, with respect to the Asset, by executing and recording the Termination of Easement Dedication and Agreement in substantially the form of Exhibit I attached hereto. (f) For purposes of this Agreement, the term, “Permitted Exceptions,” shall mean the following, subject to any changes thereto described in Schedule 14.14: (i) all exceptions and objections to title set forth in the Title Commitment and in the Existing Survey and New Survey, including all Title Defects which Purchaser is deemed to have approved in accordance with the provisions of Section 5.2(c) above, but excluding any Title Defect that constitutes a Mandatory Seller Cure Item; (ii) the Tenant Leases; (iii) any rights of licensees or other third parties under any Operating Agreements not terminated as of Closing (if recorded, by memorandum or otherwise); (iv) non-delinquent taxes and assessments for the year in which Closing occurs and subsequent years; (v) matters created by, through or under Purchaser, including without limitation any liens and encumbrances arising after the Effective Date to which Purchaser consents in writing; (vi) intentionally omitted; (vii) for the Asset, the Houston Declaration; (viii) exceptions for the Assumed Management Agreement, the Material Agreements and any recorded memoranda with respect thereto; and (ix) exceptions that are part of the promulgated title insurance form and approved by Purchaser during the Inspection Period (except to the extent that that the Title Company has agreed to remove or modify same prior to Closing). For the avoidance of doubt, and notwithstanding anything seemingly to the contrary herein, Purchaser acknowledges and agrees that (x) in no event shall the Inspection Period be extended for any reason in connection with Purchaser’s review of or objections to title, and that Purchaser’s sole remedy if it is unsatisfied with such review of or objections to title shall be to terminate this Agreement prior to the expiration of the Inspection Period in accordance with the provisions of Section 5.3(c) of this Agreement; and (y) if Purchaser fails to deliver notice of termination of this Agreement prior to the expiration of the Inspection Period in accordance with Section 5.3(c) of this Agreement, then Purchaser shall be deemed to have approved the title to the Property; provided, however, notwithstanding the foregoing, in all events Seller shall be obligated to remove and cure the Mandatory Seller Cure Items at or prior to the Closing and in no event shall the term Permitted Exceptions include the Mandatory Seller Cure Items.