Title Objections. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 2 contracts
Samples: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Limited Partnership/), Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Corp)
Title Objections. If any revision or update of any Preliminary In the event Buyer’s Title Report or Survey discloses exceptions Binder, as updated to title other than Permitted Encumbrances shown in the Preliminary Title Reportclosing, or Buyer’s Survey received during the Study Period, that would cause identifies any title to an Individual Property to be uninsurable exceptions or would defects in title of which Buyer does not approve or which render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a which unreasonably interferes with Buyer’s intended use of the Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify Seller (the Seller of the particular Property to which such “Title Objection relates (“Buyer’s Report Objection Notice”): ) and Seller shall elect by written notice to Buyer (a“Seller’s Disposition Notice”) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than within five (5) Business Days before the Closing Date (but business days of a Title Report Objection Notice whether to correct such defects prior to Closing. If Seller fails to deliver the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) Seller’s Disposition Notice to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days business days of such receipt a Title Report Objection Notice, Seller shall be deemed to have objected affirmatively to all matters set forth in the Title Report Objection Notice and the same shall constitute Seller’s receipt refusal to correct, on or before the date of Buyer’s Objection Notice whether such Seller elects Closing, all title matters to endeavor to Remedy all or any of which Buyer objected in the Title Objections raised in Buyer’s Report Objection Notice. Other than the , subject to Seller’s obligation to cure certain exceptions to title which each Seller is required pursuant to this Section 3.3 6.2. In the event Seller cannot correct such defects by Closing or chooses not to Remedy, any exception correct such defects subject to title which Buyer does not raise Seller’s obligation to cure certain exceptions pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objectionthis Section 6.2, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), then Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (accept title as the same is without abatement or reduction of Purchase Price or Buyer may be adjourned) either (1) terminate cancel this Agreement with respect upon notice to such Individual Property to which such Title Objection relates Seller and receive a return full refund of the portion Deposit. Upon delivery of Buyer’s notice canceling this Agreement, this Agreement shall thereupon be deemed canceled and become void and of no further effect, and neither party shall have any obligations of any nature to the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such other hereunder or by reason hereof, except for those provisions herein which by their terms expressly survive. Seller shall not have be required to take or bring any further liability action or obligation proceeding or any other steps to Buyer hereunder remove any defect in or objection to title or to fulfill any condition or to expend any moneys therefor, nor shall Buyer have any further liability right of action against Seller therefor, at law or obligation in equity, provided, however, that, notwithstanding anything to such the contrary contained herein, Seller hereunder with respect shall remove or cause to that Individual be removed of record (i) the lien of any mortgage, security agreement, financing statement or any other instrument which evidences or secures indebtedness and affects the Property and (ii) any other liens or encumbrances against the Property, except for such obligations as are specifically stated including without limitation mechanics liens, which were not caused by the acts or omissions of Buyer, its agents, contractors or representatives and which can be cured by the payment of money in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)liquidated amounts.
Appears in 2 contracts
Samples: Agreement of Sale, Agreement of Sale (Dividend Capital Total Realty Trust Inc.)
Title Objections. If any revision or update Prior to the expiration of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Due Diligence Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the give Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt written notice of any revision or update if received by Title Objections. Seller shall notify Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than in writing within five (5) Business Days before the Closing Date business days after receipt of Buyer’s notice of Title Objections (but but, in any event, prior to the Closing Date) or (c) on whether Seller elects to Remove the Closing Date if Buyer becomes aware same. Failure of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer in writing within such five (5) business day period shall be deemed an election by Seller on the last day of such period not to Remove such Title Objections. If Seller elects not to Remove one or more Title Objections, then Buyer may either (a) terminate this Agreement by written notice to Seller given within five (5) Business Days of such business days after Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or election (but in any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or event prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjournedDate), Buyer may at its sole and exclusive option within in which event the Title Company shall (i) pay Twenty-five Thousand Dollars (5$25,000.00) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion (ii) refund the balance of the Deposit to Buyer) , and such thereafter Seller and Buyer shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in which by the express terms of this Agreement to survive the termination of this Agreement, or (2b) elect waive such Title Objections and proceed to accept title Closing. Failure of Buyer to terminate this Agreement within such five (5) business day period shall be deemed an election by Buyer to waive such Title Objections and proceed to Closing. Any such Title Objection so waived (or deemed waived) by Buyer shall be deemed to constitute a Permitted Exception, and the Individual Property Closing shall occur as it then is herein provided without any reduction in, abatement of, of or credit against the Purchase Price and such exceptions Price. Notwithstanding the foregoing, Seller shall be deemed obligated to satisfy (or in the case of mechanics’liens, insure over at Seller’s cost) at Closing all (a) mortgages and security interests encumbering the Property, (b) mechanics’ liens or notices thereof relating to work performed at the request of any Seller Parties, and (c) liens for delinquent real estate taxes and assessments, and Buyer shall not be obligated to identify the same as a Permitted Encumbrance; if Title Objection. If this Agreement is not terminated by Buyer in accordance with the provisions hereof, Seller shall, at Closing, Remove or cause to be Removed any Title Objections which Seller elected in writing to Remove as provided above and any other matters which Seller is obligated to satisfy under this Section 4.2. Seller shall be entitled to a reasonable adjournment of the Closing (not to exceed ninety (90) days) for the purpose of the Removal of any Title Objections which Seller has elected in writing to Remove or other matters which Seller is obligated to satisfy under this Section 4.2. From and after the Letter Date, Seller shall not execute any easement, restriction, covenant, agreement or other matter affecting title to the Property other than Leases entered into by Seller in the ordinary course of business and except for the deeds contemplated by Section 15.17, unless Buyer has received a copy thereof and has approved the same in writing. If Buyer fails to timely make either object in writing to any such electionproposed instrument within five (5) business days after receipt of the aforementioned notice, Buyer shall be deemed to have elected option (1)approved the proposed instrument. Buyer’s consent shall not be unreasonably withheld, conditioned or delayed with respect to any such instrument.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (NTS Realty Holdings Lp)
Title Objections. If there are any revision liens, charges, easements, ---------------- agreements of record, encumbrances or update of any Preliminary Title Report or Survey discloses exceptions other objections to title title, other than the Permitted Encumbrances shown and Subsequent Title Objections (which Purchaser agrees to take title subject to) which are not waived in accordance with the Preliminary provisions of Section 5.1 (collectively, "Title ReportObjections"), which (i) were caused by, resulted from or Survey received during arose out of a grant by Seller to any person or entity of a mortgage or other security interest affecting the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely the performance of work on behalf of Seller upon all or any portion of the Property, then Seller shall remove such Title Objections; or (ii) are not of the type described in clause (i) of this sentence, but are removable by the payment of an ascertainable sum not to exceed in the aggregate $250,000.00 (the foregoing, collectively, the “Title Objections”"Maximum Amount"), Buyer then Seller shall so notify cause such Title Objections to be removed. If Seller fails to remove any Title Objection(s) in accordance with the Seller provisions of the particular Property immediately preceding sentence, or if there exist any Title Objection(s) which Seller is not obligated to which remove pursuant to clause (ii) of the immediately preceding sentence because the payment of funds in excess of the Maximum Amount would be required to cure the same, Purchaser, nevertheless, may elect (at or prior to Closing) to consummate the transaction provided for herein subject to any such Title Objection relates (“Buyer’s Objection Notice”): (aObjection(s) on or before the fifth (5th) Business Day after receipt as may exist as of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior with a credit allocated against the Cash Balance payable at the Closing equal to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior sum necessary to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each remove such date, the “Objection Cut Off Date”Title Objection(s), time being not to exceed the Maximum Amount (in the event of a Title Objection of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, type described in clause (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in of the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 belowimmediately preceding sentence); provided, however, nothing herein if Purchaser makes such election, Purchaser shall require a Seller not be entitled to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********credit, in the aggregate, to remove). Each nor shall Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or bear any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection orfurther liability, with respect to any Title Objection that a Objection(s) of the type described in clause (ii) of the immediately preceding sentence, but Seller fails to Remedy after having elected to do soshall remain fully liable for the cost of removing any Title Objection(s) of the type described in clause (i) of the immediately preceding sentence. If Purchaser shall not so elect, on the Closing Date (as the same Purchaser may be adjourned) either (1) terminate this Agreement and Seller's sole liability thereafter shall be to cause the Deposit, together with any interest earned thereon while in escrow, to be refunded to Purchaser, and, upon the return of the Deposit and any such interest, this Agreement shall be terminated, and the parties hereto shall be relieved of all further obligations and liability under this Agreement, other than with respect to such Individual Property to which such Title Objection relates and receive a return the provisions of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to which expressly survive the a termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 2 contracts
Samples: Sale Agreement (Sl Green Realty Corp), Agreement of Sale and Purchase (Sl Green Realty Corp)
Title Objections. If With respect to those matters marked as “omit” on the Title Commitments listed on Exhibit E on the date hereof and which was provided to Seller’s counsel by PropCo Purchaser’s counsel in an e-mail at 6:34 pm Eastern Time on the date hereof or if (i) any revision Title Commitment updates shall reveal or update of disclose any Preliminary Title Report other defects, objections or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual the Real Property that are not Permitted Liens and to be uninsurable or would render title unmarketable or constitute which a monetary lien or judgment on a Property, or encumbers a Property materially and adversely Purchaser objects (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (cii) any Survey updates received by the Purchasers shall reveal or disclose any title exceptions, encroachments, other physical conditions or other state of facts on or affecting any of the Closing Date if Buyer becomes aware of same on the Closing Date Real Property that are not Permitted Liens and to which a Purchaser objects (each such date, the “Objection Cut Off DateSurvey Objections”), time being of the essence. Such Seller shall have until the Closing Date then, within ten (and may adjourn the Closing for such reasonable periods10) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property days after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection orhereof, with respect to the Title Commitments listed on Exhibit E or the Purchasers’ receipt of any Title Commitment update or Survey update, as applicable, first revealing any such Title Objection or Survey Objection, TIME BEING OF THE ESSENCE, PropCo Purchaser (on behalf of the Purchasers) shall notify Seller of such Title Objections and Survey Objections in writing and request whether Seller will attempt to cure such Title Objections and Survey Objections (an “Objection Notice”) (it being agreed between the parties hereto that a PropCo Purchaser has given an Objection Notice to Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property those items marked “omit” on the Title Commitments listed on Exhibit E on the date hereof and which was provided to which Seller’s counsel by PropCo Purchaser’s counsel in an e-mail at 6:34 pm Eastern Time on the date hereof). If PropCo Purchaser fails to so notify Seller in writing of any such Title Objection relates and receive a return of Objections in accordance with the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated timing set forth in this Agreement to survive Section 6(b), then the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer Purchasers shall be deemed to have elected option (1)accepted the title exception reflected in the applicable Title Commitment update and Survey update delivered to the Purchasers and to have waived any claims or defects which it might otherwise have raised with respect to such title exception and the same shall be and shall be deemed to be Permitted Liens for all purposes of this Agreement, in each case subject to the Seller’s obligations with respect to Mandatory Cure Items pursuant to Section 6(c) below.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Las Vegas Sands Corp), Purchase and Sale Agreement (Vici Properties Inc.)
Title Objections. If Purchaser shall promptly review any revision title report or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary policy provided by Seller under Section 3a hereinabove ("Seller's Title Report, or Survey received during the Study Period, that would "). Purchaser shall also cause a search of title to an Individual the Property to be uninsurable made and a survey of the Property to be performed not later than twenty (20) days after the termination of the Feasibility Period. If Purchaser shall determine that any matter or would render matters affecting the Property are unacceptable, Purchaser shall notify Seller in writing of such matter or matters (the "Title Objections") within ten (10) business days of Purchaser's receipt of the respective title unmarketable report or constitute a monetary lien or judgment on a Propertysurvey. Within seven (7) days of receipt of such notification, Seller shall notify Purchaser either that (i) Seller shall correct such Title Objections, or encumbers a Property materially and adversely (the foregoing, collectively, the “ii) Seller shall not correct such Title Objections”). In the event that Seller shall elect to correct such Title Objections, Buyer Seller shall so notify correct such Title Obligations at or prior to Closing hereunder. In the event that Seller shall elect not to correct such Title Objections, Purchaser shall have the right, in its sole discretion, either to (i) accept title as is, or (ii) terminate this Agreement, in which event the Deposit shall be promptly returned to Purchaser and the parties hereto released from any further liabilities or obligations hereunder, except that Seller shall pay the reasonable costs of the particular Property title examination ordered by the Purchaser for any matter not disclosed by the Seller's Title Report. Any matters to which such Title Objection relates (“Buyer’s Objection Notice”): (a) Purchaser does not object on or before the fifth day thirty (5th30) Business Day days after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being expiration of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date Feasibility Period shall be deemed a Permitted Encumbrance acceptable to Purchaser. In the event Purchaser notifies Seller of any Title Objections, and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect notify Purchaser within the period set forth above of its election to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which cure or not cure such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Objections, Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)not to cure such Title Objections. Notwithstanding the provisions of this Section 4b, Seller shall release at or prior to closing all monetary liens and encumbrances encumbering the Property.
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Samples: Purchase and Sale Agreement (Homes for America Holdings Inc), Purchase and Sale Agreement (Homes for America Holdings Inc)
Title Objections. If Buyer shall disapprove any revision title or update of any Preliminary Title Report or Survey discloses exceptions survey matters which Buyer is permitted to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”)disapprove hereunder, Buyer shall so notify give written notice thereof ("Title Objection Notice") to Seller within the time periods provided for in paragraphs 4.A(1) or 4.A(2), as applicable. Upon receipt by Seller of the particular Property to which a Title Objection Notice given in a timely manner, then Seller shall have five (5) business days from receipt of such Title Objection relates Notice (“or from the date of Buyer’s Objection Notice”): 's deemed disapproval as aforesaid) within which to notify Buyer in writing (the "Seller's Title Response") as to each disapproved matter either that (i) Seller elects not to cause such disapproved matter to be removed as of the Closing Date (or otherwise take any action with respect thereto), or (ii) Seller intends to either (a) use commercially reasonable efforts to cause such disapproved matter to be removed on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, or (b) on or before one obtain a title endorsement (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Dateavailable) or (c) on affirmative coverage from the Closing Date if Buyer becomes aware of same on the Closing Date (each Title Company insuring over such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below)disapproved matter; provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated have no liability if for any reason, after electing under (ii) above and exercising a good faith effort (with Seller having no obligation to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that expend any sums in connection therewith), such additional disapproved matters are not assumed removed or insured over as of the Closing Date. Failure to deliver any written notification by Seller of its election within such period shall be deemed to be an election not to cause any such additional disapproved matters to be removed. If Seller elects not to cause any or all such additional disapproved matters to be removed or insured over as aforesaid, Buyer pursuant to Exhibit AA attached hereto, shall have four (B4) any and all liens voluntarily placed by a Seller against its Property after business days from receipt of the Seller's Title Response (or from the date of the applicable Preliminary Title Report in violation of this Agreement, (CSeller's deemed election as aforesaid) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees within which to notify Buyer within five Seller in writing (5) Business Days of such Seller’s receipt of the "Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the 's Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extendedResponse") either that (x) does not elect Buyer revokes its disapproval and will proceed with the purchase of the Property without any reduction in the Purchase Price and will take subject to Remedy a Title Objectionsuch matters, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate terminates this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and thereupon the applicable Seller and Buyer Escrow Deposit shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation be delivered to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Propertyand, except for such obligations as are specifically stated in those provisions hereof which survive termination, this Agreement shall thereupon terminate). Failure to survive the termination deliver any written notification by Buyer of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and its election within such exceptions period shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).to
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Title Objections. If 4.1 Purchaser shall give written notice to Sellers within ten (10) business days from and after Purchaser’s receipt of both the Commitments and the Surveys as to any revision defects or update of any Preliminary Title Report or Survey discloses exceptions other objections regarding the Projects disclosed by the Commitments and the Surveys that Purchaser may be unwilling to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely accept (the foregoing, collectively, the “Title ObjectionsDefects”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees may, at its option, elect whether to notify Buyer cure any Title Defects or indicate its intention not to cure by written notice to Purchaser (“Seller’s Title Defect Response”) within five (5) Business Days business days of such Seller’s receipt of BuyerPurchaser’s Objection Notice whether such Seller elects to endeavor to Remedy all or any written notice of the Title Objections raised Defects. Should any Seller elect not to cure any Title Defect or not timely respond in Buyerwriting to Purchaser’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedywritten notice of Title Defects, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do sothen Purchaser may, at or prior to the Closing Date (as the same may be adjourned)its option, Buyer may at its sole and exclusive option within five (5) Business Days business days after a Seller fails to elect to Remedy a receipt of any Seller’s Title Objection orDefect Response, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date either: (as the same may be adjourned) either (1a) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return all or any of the Projects for which Seller has elected not to cure any Title Defect by delivery of written notice to Sellers, whereupon either all of the Initial Deposit or a prorated portion of the Deposit relating Initial Deposit, based upon the allocated values of those non-terminated Projects as set forth on the allocation schedule referenced in Section 2.2 above (the “Prorated Deposit”), shall be returned to such Individual Property as shown on Schedule 2.1(a) (Purchaser by the Title Company, and the applicable Seller Sellers and Buyer Purchaser shall jointly instruct Escrow Holder proceed to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder Closing with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, non-terminated Projects; or (2b) elect to accept take title to the Individual Property as it then is without any reduction in, abatement of, or credit against in the Purchase Price Price. If any Title Defects remain uncured by any Seller at Closing, and Purchaser has not terminated this Agreement, such exceptions Title Defects and all other matters relating to the Surveys or title to the Projects as disclosed on the Surveys and the Commitments at Closing shall be deemed “Permitted Exceptions”. Upon the request of Seller to cure a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer Title Defect or upon request of Purchaser the Closing Date shall be deemed extended to have elected option (1)accommodate the provisions of this Section 4.1.
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Title Objections. If any revision or update Purchaser shall, within ten (10) days after the latest of the Title Commitment, the Title Review Documents and the Survey Review Items have been delivered to Purchaser (the "Title Objection Period") deliver to Seller written notice of any Preliminary objections which Purchaser has to any of the Title Report or Review Items and/or the Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely Review Items (the foregoing, collectively, the “Title Objections”). If Seller does not receive from Purchaser a written notice specifying those items which are Title Objections within the Title Objection Period, Buyer shall so notify the Seller then all of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being Review Items and all of the essenceSurvey Review Items shall be considered to be “Permitted Exceptions”. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall not be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or cure any of the Title Objections raised in Buyer’s Objection Noticeor to incur any costs, fees or expenses or initiate any action to cure or attempt to cure any of the Title Objections except as specifically set forth below. Other than In the event that Seller fails to cause all of the Title Objections to be cured or removed as exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant within ten (10) days after receipt of the Title Objections or one (1) business day prior to the terms hereof expiration of the Inspection Period, whichever is earlier (the “Title Curative Period”), or in the event Seller gives notice that it will not cure any one or more of the Title Objections (the “Refusal Notice”), then Purchaser may, as Purchaser’s sole and exclusive remedy, terminate this Agreement by delivering to Seller a written notice of termination on or before the Objection Cut Off Date expiration of the Inspection Period. Alternatively, Purchaser may elect to purchase the Real Property subject to all matters related to the Title Objections which have not been cured or removed. If Purchaser delivers a Waiver Notice on or before the expiration of the Inspection Period, then Purchaser will be deemed to have waived the Title Objections (other than those which Seller has cured or agrees to cure prior to Closing) and to have waived Purchaser’s right of termination under this Section 4.03, and in such event all Title Objections (other than those which Seller has cured or agrees to cure prior to Closing) shall be deemed a to be Permitted Encumbrance and not a Exceptions under this Agreement. The foregoing notwithstanding, Seller agrees to cause all liens against the Property referred to on Schedule C of the Title Objection. If a Seller Commitment, together with the HEB Profit Participation Agreement (as hereinafter defined), to be released at or prior to Closing, and to otherwise satisfy all requirements of the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, Company with respect to any those items which are set forth on Schedule C of the Title Objection that a Commitment as applicable to Seller fails to Remedy after having elected to and which do so, not require action on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return part of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) Purchaser and such Seller shall items will not have any further be Permitted Exceptions. Purchaser agrees to execute the waiver of inspection required in connection therewith and to otherwise cooperate fully with Seller, at no cost or liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation Purchaser, in order to satisfy all such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)requirements.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Stratus Properties Inc)
Title Objections. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the sooner to occur of (a) with respect to the Initial Title Objection Notice, five (5) business days from the Effective Date (or, with respect to a Supplemental Title Objection Notice, five (5) business days from the date of receipt of such Supplemental Title Objection Notice) and (b) the Closing Date, within which to notify Buyer as to each properly disapproved matter either that (i) Seller elects not to cause such disapproved matter to be removed as of the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured overor otherwise take any action with respect thereto), or (ii) removedSeller intends to either (A) use commercially reasonable efforts to cause such disapproved matter to be removed on the Closing Date, or (iiiB) corrected obtain a title endorsement (each as selected by a Seller, a “Remedy”if available) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below)insuring over such disapproved matter; provided, however, nothing herein Seller shall require a have no liability if for any reason, after electing under (ii) above, such additional disapproved matters are not removed or insured over as of the Closing Date. Failure to deliver any written notification by Seller of its election within such period shall be deemed to be an election not to cause any such additional disapproved matters to be removed. If Seller elects not to cause any or all such additional disapproved matters to be removed or insured over as aforesaid, Buyer shall have until the sooner to occur of (Iaa) bring five (5) days from receipt of written notice thereof (or from the date of Seller's deemed election as aforesaid) and (bb) the Closing Date, within which to notify Seller in writing either that (i) Buyer revokes its disapproval and will proceed with the purchase of the Property without any action or proceeding reduction in the Purchase Price and will take subject to remove any Title Objection such matters, or (IIii) take Buyer terminates this Agreement (and thereupon the Escrow Deposit shall be delivered to Buyer and, except for those provisions hereof which survive termination, this Agreement shall thereupon terminate). Failure to deliver any steps, or incur written notification by Buyer of its election within such period shall be deemed to be an election by Buyer to proceed with the purchase of the Property without any expense, in excess of *** ******* ******** ******* ********** reduction in the aggregate Purchase Price and to remove any Title Objections take subject to such previously disapproved matters. Notwithstanding anything to the contrary contained herein, at "Closing" (except that each as hereinafter defined) Seller shall be obligated to remove cause the following “Mandatory Cure Items”: (A) the mortgages or removal of any exceptions evidencing any mortgages, deeds of trust identified on or other loan documents securing any financing obtained, assumed or suffered to exist by Seller and to cause the Preliminary Title Report that are not assumed by Buyer pursuant removal (or to Exhibit AA attached hereto, (Bobtain title insurance over) any and all tax or judgment liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and any mechanic's or materialmen's liens against the Property for work performed by or on behalf of Seller. In addition, if Buyer seeks to obtain an extended coverage "Owner's Policy" (D) any other as defined below), Seller shall reasonably attempt to provide Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Company and Other Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller Company at or prior to the Closing Date with such evidence and customary documents as reasonably required by Title Company and Other Title Company to issue such extended coverage (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) with Seller having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or no obligation to Buyer hereunder nor shall Buyer have expend any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated sums in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1connection therewith).
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Title Objections. If any revision such Title Commitment and/or Survey, or update of any Preliminary Title Report or Survey discloses to Survey, disclose matters and exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Reporttitle, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely which Purchaser objects (the foregoing, collectively, the “"Title Objections”), Buyer shall so notify the ") in a written notice to Seller delivered no later than ten (10) days following receipt of the particular Property Title Commitment and Survey, as amended, Seller (in its sole discretion) shall have ten (10) business days (the "Seller Cure Period") from the date of such notice to which elect to have the Title Objections removed or to obtain the commitment of the Title Company to provide affirmative insurance to Purchaser over such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day Objections prior to Closing. Seller shall have the right to extend the Closing Date if received by Buyer less than five for a reasonable period of time not to exceed sixty (560) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** days in the aggregate to remove cure those Title Objections which Seller has elected to cure· and the Mandatory Cure Items (as hereinafter defined). If Seller fails or elects not to have any Title Objections (except that each Seller shall be obligated removed or fails or elects not to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of cause the Title Objections raised in Buyer’s Objection Notice. Other than Company to issue its commitment to insure over the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof same on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (expiration of the Seller Cure Period, Purchaser may, as the same may be extended) its sole remedies, either (x) does not elect to Remedy a Title Objection, take title as it then is or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates Contract and receive a return of the portion Deposit by delivery of notice to that effect at any time prior to the "Title Objection Expiration Date" which shall mean within five (5) days after the sooner of the Deposit relating (i) the date on which Seller notifies Purchaser of its failure to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability such Title Objections removed or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreementinsured over, or (2ii) the expiration of the Seller Cure Period. If Purchaser shall elect to accept take title subject to any Title Objections, all of such Title Objections shall thereupon become, for all purposes hereof, additional "Permitted Exceptions;" provided, however, Mandatory Cure Items (as hereinafter defined) shall not be considered permitted exceptions and shall be removed and cured by Seller at its sole expense prior to the Individual Property as it Closing. If any of the time periods set forth in this Section 1.01 extend beyond the Closing Date, then is without notwithstanding anything set forth in this Contract to the contrary, the Closing Date shall be extended to permit the applicable party to have the full time period set forth in this section. "Mandatory Cure Items" shall mean liens which are of a definite and ascertainable amount which in the aggregate can be removed at the Closing by payment of monies, and which either (A) represent, evidence, secure or otherwise relate to mortgage debt, security interests, lien, and other financing documents, (B) represent taxes or assessments which are then delinquent or which are then due and payable, (C) relate to any reduction inmechanics or materialmen's liens, abatement ofand any other monetary liens (bonded or unbonded), Notices of Commencement, or credit against any other governmental liens or notices related to the Purchase Price Property and such exceptions (D) and any other monetary liens. Purchaser shall not be deemed obligated to identify any Mandatory Cure Items as a Permitted Encumbrance; if Buyer fails Title Objection and the failure to timely make either such election, Buyer do so shall be deemed not constitute a waiver of Seller's obligation to have elected option (1)cure and satisfy all Mandatory Cure Items.
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Title Objections. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in (a) During the Preliminary Title Report, or Survey received during the Study Due Diligence Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify review title to the Seller Property as disclosed by the Title Commitment and the Survey. Prior to the expiration of the particular Property to which such Title Objection relates Due Diligence Period or within three (“Buyer’s Objection Notice”): (a) on or before the fifth (5th3) Business Day Days after the receipt of any supplement or modification to the Title Commitment, but in no event prior to the expiration of the Due Diligence Period, Buyer shall deliver to Seller written notice of any items shown on the Title Commitment and/or the Survey of which Buyer disapproves (individually "BUYER DISAPPROVED EXCEPTION" and collectively, "BUYER'S DISAPPROVED EXCEPTIONS"). Buyer may not disapprove of the standard printed exceptions in the Title Commitment pursuant to this Section. If Buyer does not deliver the aforementioned written notice prior to the expiration of the time provided, Buyer shall be deemed to have disapproved of all matters shown on the Title Commitment and the Survey. Seller shall have three (3) Business Days after receipt of any revision the aforementioned Buyer's notice, or update deemed notice, to notify Buyer in writing which, if received by Buyer on any, of Buyer's Disapproved Exceptions Seller elects to cure or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day bond over prior to the Closing Date if received by Closing. If Seller does not notify Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such datein a timely fashion, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) be deemed to have each such Title Objection (i) insured over, (ii) removed, elected not to cure or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction bond over any of Buyer's Disapproved Exceptions. Seller shall not be obligated to so cure or bond over Buyer's Disapproved Exceptions, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each for monetary liens which Seller shall be obligated to remove at or before the following “Mandatory Cure Items”: (A) Closing. Seller shall not be required to expend any effort or funds, or to commence litigation to cure a Buyer Disapproved Exception, except for monetary liens, which Seller shall be obligated to remove at or before the mortgages Closing. Seller further agrees to remove any exceptions or deeds of trust identified on the Preliminary Title Report encumbrances to title that are not assumed created by Buyer pursuant to Exhibit AA attached heretoSeller after April 11, 2002, without Buyer's prior written consent.
(Bb) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such If Seller elects to endeavor cure, but is unable to Remedy cure any or all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller 's Disapproved Exceptions at or prior to the Closing Date expiration of the Due Diligence Period, the Buyer may (as the same may be extendedi) either (x) does not elect to Remedy a Title Objection, waive such uncured title matter in writing; or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1ii) terminate this Agreement in which event Buyer shall, as its sole remedy, receive a refund of the Earnest Money and recover its verified out-of-pocket expensxx.
(c) If Seller elects to cure none, or some, but not all, of Buyer's Disapproved Exceptions, Buyer shall have three (3) Business Days to provide Seller with respect written notice of Buyer's election, as its sole remedy, to such Individual Property either waive its disapproval of the Buyer Disapproved Exceptions which Seller has elected not to which such Title Objection relates cure, or terminate this Agreement and receive a return refund of the portion of Earnest Money. If Buyer does not provide Seller with written xxxxxe as set forth in the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such electionpreceding sentence, Buyer shall be deemed to have elected option to terminate this Agreement and shall receive a refund of the Earnest Money.
(1d) If the Title Company revises txx Xxxxe Commitment after the expiration of the Due Diligence Period to add or modify exceptions, and if such additions or modifications are not acceptable to Buyer, in Buyer's sole and absolute discretion, and are not removed on or before the Closing, Buyer may, as its sole remedy, terminate this Agreement by written notice to Seller and the Title Company, and the Earnest Money shall be refunded to Buyer. From and after thx Xxxxx 11, 2002, Seller shall not place or consent to any liens or easements against the Property or take any action to alter the condition of title to the Property without first obtaining Buyer's written consent, which may be withheld in Buyer's sole and absolute discretion.
(e) The standard printed exceptions in the Title Commitment, the Lease, and all matters shown on the Title Commitment, as well as any additional matters not shown by the Title Commitment and which are not Buyer's Disapproved Exceptions that the Seller is not required to cure or bond over at or prior to the Closing pursuant to this Section 6.2, and items shown on the Survey which have not been removed as of the end of the Due Diligence Period or which Seller is not required to remove as provided above, shall constitute and are herein called "PERMITTED EXCEPTIONS".
(f) Any other term of this Agreement notwithstanding, following the expiration of the Due Diligence Period, Seller shall be deemed to have waived all objections to all exceptions and matters shown on the Title Commitment and/or the Survey, whether or not previously designated as or deemed by this Agreement to be Buyer's Disapproved Exception(s), all of which shall also be deemed Permitted Exceptions.
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Title Objections.
(i) Within seven (7) days after the Purchaser’s receipt of both the Title Commitment and the Survey, Purchaser shall notify Seller in writing of Purchaser’s objection to any exceptions or other title matters shown on the Title Commitment or the Survey (each, a “Title Objection”). If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates is not removed or resolved by Seller to Purchaser’s satisfaction at least five (“Buyer’s Objection Notice”): (a5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, to terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination.
(bii) on or before one (1) Business Day prior If any supplement to the Closing Date if received Title Commitment or the Survey discloses any additional title defects which were not created by Buyer less than or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) Business Days before the Closing Date days following receipt of such supplement or revision. If any Additional Title Objection is not removed or resolved by Seller to Purchaser’s satisfaction at least five (but 5) days prior to the Closing Date) , then Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or (c) on before the Closing Date if Buyer becomes aware of same on the Closing Date (each Date, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such date, the “Objection Cut Off Date”), time being of the essencetermination. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitment and the Survey. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, or incur any expenseas provided in this Section 2.01, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other then such Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s or Additional Title Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)..
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Samples: Purchase and Sale Agreement (Orion Group Holdings Inc)
Title Objections. If any revision such Title Commitment and/or Survey, or update of any Preliminary Title Report or Survey discloses to Survey, disclose matters and exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Reporttitle, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely which Purchaser objects (the foregoing, collectively, the “"Title Objections”), Buyer shall so notify the ") in a written notice to Seller delivered no later than ten (10) days following receipt of the particular Property Title Commitment and Survey, as amended, Seller (in its sole discretion) shall have ten (10) business days (the "Seller Cure Period") from the date of such notice to which elect to have the Title Objections removed or to obtain the commitment of the Title Company to provide affirmative insurance to Purchaser over such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day Objections prior to Closing. Seller shall have the right to extend the Closing Date if received by Buyer less than five for a reasonable period of time not to exceed sixty (560) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** days in the aggregate to remove cure those Title Objections which Seller has elected to cure and the Mandatory Cure Items (as hereinafter defined). If Seller fails or elects not to have any Title Objections (except that each Seller shall be obligated removed or fails or elects not to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of cause the Title Objections raised in Buyer’s Objection Notice. Other than Company to issue its commitment to insure over the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof same on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (expiration of the Seller Cure Period, Purchaser may, as the same may be extended) its sole remedies, either (x) does not elect to Remedy a Title Objection, take title as it then is or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates Contract and receive a return of the portion Deposit by delivery of notice to that effect at any time prior to the "Title Objection Expiration Date" which shall mean within five (5) days after the sooner of the Deposit relating (i) the date on which Seller notifies Purchaser of its failure to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability such Title Objections removed or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreementinsured over, or (2ii) the expiration of the Seller Cure Period. If Purchaser shall elect to accept take title subject to any Title Objections, all of such Title Objections shall thereupon become, for all purposes hereof, additional "Permitted Exceptions;" provided, however, Mandatory Cure Items (as hereinafter defined) shall not be considered permitted exceptions and shall be removed and cured by Seller at its sole expense prior to the Individual Property as it Closing. If any of the time periods set forth in this Section 1.01 extend beyond the Closing Date, then is without notwithstanding anything set forth in this Contract to the contrary, the Closing Date shall be extended to permit the applicable party to have the full time period set forth in this section. "Mandatory Cure Items" shall mean liens which are of a definite and ascertainable amount which in the aggregate can be removed at the Closing by payment of monies, and which either (A) represent, evidence, secure or otherwise relate to mo1igage debt, security interests, lien, and other financing documents, (B) represent taxes or assessments which are then delinquent or which are then due and payable, (C) relate to any reduction inmechanics or materialmen's liens, abatement ofand any other monetary liens (bonded or unbonded), Notices of Commencement, or credit against any other governmental liens or notices related to the Purchase Price Property and such exceptions (D) and any other monetary liens. Purchaser shall not be deemed obligated to identify any Mandatory Cure Items as a Permitted Encumbrance; if Buyer fails Title Objection and the failure to timely make either such election, Buyer do so shall be deemed not constitute a waiver of Seller's obligation to have elected option (1)cure and satisfy all Mandatory Cure Items.
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Title Objections. (i) Within seven (7) days after the Purchaser's receipt of both a Title Commitment and the related Survey for each Property, Purchaser shall notify Seller in writing of Purchaser's objection to any exceptions or other title matters shown on any Title Commitment or the related Survey (each, a "Title Objection"). If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates is not removed or resolved by Seller to Purchaser's satisfaction at least five (“Buyer’s Objection Notice”): (a5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, to (bA) on terminate this Agreement, in which event neither party will have any further obligations or before one liability hereunder, except for those obligations expressly stated to survive such termination; or (1B) Business Day prior remove the applicable Property or Properties from the Properties to be conveyed hereunder, with an appropriate adjustment to the Closing Date if received Purchase Price, and proceed to close with respect to the remaining Properties.
(ii) If any supplement to a Title Commitment or the related Survey discloses any additional title defects which were not created by Buyer less than or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an "Additional Title Objection") within five (5) Business Days before the Closing Date days following receipt of such supplement or revision. If any Additional Title Objection is not removed or resolved by Seller to Purchaser's satisfaction at least five (but 5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, to (A) terminate this Agreement upon written notice to Seller on or before the Closing Date, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination; or (cB) on remove the Closing Date if Buyer becomes aware of same on applicable Property or Properties from the Closing Date (each such dateProperties to be conveyed hereunder, with an appropriate adjustment to the “Objection Cut Off Date”)Purchase Price, time being of and proceed to close with respect to the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or remaining Properties.
(iii) corrected (each as selected Purchaser's failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser's acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitments and the related Surveys. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, or incur any expenseas provided in this Section 2.01, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other then such Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s or Additional Title Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
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Title Objections. If (i) Within seven (7) days after the Purchaser’s receipt of both a Title Commitment and the related Survey for each Property, Purchaser shall notify Seller in writing of Purchaser’s objection to any revision exceptions or update other title matters shown on any Title Commitment or the related Survey (each, a “Title Objection”). At least five (5) days prior to the Closing Date, Seller shall notify Purchaser whether it will attempt to cure the Title Objections and which, if not all, Title Objections it will attempt to cure. Based on Seller’s response, Purchaser may elect to (A) give Seller additional time to cure, and the parties will delay Closing for the period of time necessary for Seller to attempt to cure, not to exceed 30 days beyond the original Closing Date, (B) terminate the Agreement, in which event neither party will have any Preliminary Title Report further obligations or Survey discloses exceptions liability hereunder, except for those obligations expressly stated to title other than Permitted Encumbrances shown in survive such termination; or (C) remove the Preliminary Title Report, applicable Property or Survey received during Properties from the Study Period, that would cause title to an Individual Property Properties to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Propertyconveyed hereunder, or encumbers a Property materially with an adjustment to the Purchase Price, as agreed upon by Purchaser and adversely (Seller, and proceed to close with respect to the foregoingremaining Properties. If Purchaser elects to have Seller attempt to cure the Title Objections that Seller agreed to address, collectivelySeller shall have the option to extend the Closing Date -- and the parties shall execute an amendment to this Agreement to that effect -- up to 30 days in order to cure such of those Title Objections Seller has agreed to 4848-2670-9558.6 STORE/Synalloy Purchase and Sale Agreement 6 Properties in OH, SC, TN and TX File No. 7210/02-475 cure. If Seller is unable to cure those Title Objections it has agreed to cure within the “Title Objections”)agreed-upon time period, Buyer then Purchaser shall so notify have the option, as its sole remedy, upon written notice to Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth amended Closing Date, to (5thA) Business Day after terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination; or (B) remove the applicable Property or Properties from the Properties to be conveyed hereunder, with an adjustment to the Purchase Price, as agreed upon by Purchaser and Seller, and proceed to close with respect to the remaining Properties.
(ii) If any supplement to a Title Commitment or the related Survey discloses any additional title defects which were not created by or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) days following receipt of such supplement or revision. If any revision Additional Title Objection is not removed or update if received resolved by Buyer Seller to Purchaser’s satisfaction at least five (5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, to (A) terminate this Agreement upon written notice to Seller on or before the fifth (5th) Business Day before the Closing Date, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination; or (bB) on remove the applicable Property or before one (1) Business Day prior Properties from the Properties to be conveyed hereunder, with an appropriate adjustment to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior Purchase Price, and proceed to close with respect to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or remaining Properties.
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitments and the related Surveys. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, or incur any expenseas provided in this Section 2.01, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other then such Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s or Additional Title Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 1 contract
Title Objections. If any revision Within fifteen (15) days after receiving the later of the Title Commitment or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”)Survey, Buyer shall so notify Seller if the Title Commitment or Survey reveals Title Objections. If Seller of the particular Property is unable or unwilling to which such cure any Title Objection relates Objections, Seller will provide written notice thereof to Buyer within fifteen (“Buyer’s Objection Notice”): (a15) on or before the fifth (5th) Business Day after days following receipt of notice of Title Objections from Buyer and Buyer shall have the right, at its option, by written notice to Seller within fifteen (15) days following receipt of Seller's written notice, either (i) to terminate this Agreement, whereafter both Parties shall be relieved and discharged of any revision rights, liabilities or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Dateobligations hereunder, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (cii) on to waive such defect and proceed to Closing. Buyer's failure to exercise the Closing Date right to terminate within the said fifteen (15) day period shall constitute a waiver of Buyer's right to terminate with respect to such title matters. However, if Buyer becomes aware of same on Seller elects to cure the Closing Date Title Objections (each although Seller will have no such date, the “Objection Cut Off Date”obligation to do so), time being Seller shall provide Buyer with notice of its intention to cure same within the essence. Such fifteen (15) days aforesaid and Seller shall have until an opportunity, at its expense, to remove such Title Objections within sixty (60) days following receipt of written notice from Buyer identifying the Closing Date Title Objections (and may adjourn the Closing for such reasonable periods"Title Cure Period"). In no event shall Seller have any obligation to commence litigation or to incur costs in excess of One Thousand Dollars ($1,000.00) to have each such Title Objection (i) insured over, (ii) removed, cure or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate Objections. If Seller is unable to remove cure any Title Objections (except that each Seller shall be obligated to remove within the following “Mandatory Title Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********Period that, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any reasonable opinion of the Title Objections raised Company or Buyer, must be cured in Buyer’s Objection Notice. Other than the exceptions order to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance deliver good and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned)marketable title, Buyer may at may, as its sole and exclusive option remedy, and upon written notice to Seller within five fifteen (515) Business Days days after a Seller fails expiration of the Title Cure Period, elect either to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1i) terminate this Agreement, whereafter both Parties shall be relieved and discharged of any rights, liabilities or obligations hereunder, or (ii) to waive such defect and any other obligation under this Agreement of Seller to deliver good and marketable title with respect to such Individual Property defect and proceed to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)Closing.
Appears in 1 contract
Samples: Terminal Purchase and Sales Agreement (Buckeye Partners L P)
Title Objections. If any revision or update (a) Purchaser shall have forty-five (45) days from the later of (1) the date of the receipt of any Preliminary Title Report Commitment and copies of all underlying documents for the Schedule B-2 exceptions listed in such Title Commitment, including any Title Commitment delivered post-Closing and receipt of and opportunity to inspect such maps as are in Seller’s possession referenced in such Title Commitment; or Survey discloses exceptions to title other than Permitted Encumbrances shown in (2) the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely date of this Agreement (the foregoing, collectively, the “Title ObjectionsReview Period”), Buyer shall so notify ) to object to any matter set forth in such Title Commitment with regard to the Seller Land or the Leasehold Interest which is either (i) not a Permitted Exception pursuant to Section 1.3 or (ii) a matter which as to the tract or parcel of land which is encumbered by such matter would materially impair, in Purchaser’s reasonable judgment, the particular Property value of such tract or parcel of land, in either case by giving written notice to which Seller (collectively, any such matter, a “Title Objection relates (“Buyer’s Objection NoticeDefect”): (a) on or before the fifth (5th) Business Day after receipt last day of the Title Review Period. Purchaser shall also have the right to object to any revision title exceptions suffered by Seller, or update if received first made known to Purchaser, between the date of the applicable Title Commitment obtained by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to Seller and the Closing Date if received by Buyer less than five which is either (5i) Business Days before the Closing Date not a Permitted Exception pursuant to
Section 1. 3 or (but prior ii) a matter which as to the Closing Date) tract or (c) on the Closing Date if Buyer becomes aware parcel of same on the Closing Date (each land which is encumbered by such datematter would materially impair, in Purchaser’s reasonable judgment, the “Objection Cut Off Date”value of such tract or parcel of land, in either case by giving written notice to Seller (which will be deemed to be a Title Defect), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn right, but not the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii)obligation, to the reasonable satisfaction of Buyer, but subject cure or remove at or prior to Section 3.4 below)Closing all objections to Seller’s title to Seller Land or Leasehold Interests; provided, however, nothing herein shall require a that Seller will cause any deed to secure debt, any deed of trust, any mortgage or any monetary lien by, through or under Seller encumbering Seller Land or Leasehold Interests to be satisfied or otherwise released on or before the Closing. In the event Purchaser failed to give notice to Seller on or before the expiration of the applicable Title Review Period (I) bring or the Closing Date for any action or proceeding to remove any Title Objection or (II) take any stepsmatter suffered by Seller, or incur any expensefirst made known to Purchaser, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after between the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Commitment obtained by Seller and (Dthe Closing Date) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, of Purchaser’s objection to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to Seller’s title which Buyer does not raise pursuant to the terms hereof on Seller Land or before Leasehold Interests, such exception will be deemed to be a Permitted Exception and title to the Objection Cut Off Date Seller Land or Leasehold Interests shall be deemed a Permitted Encumbrance and not conveyed to Timberlands II, LLC subject to such exception.
(b) In the event that Purchaser gives such written notice of objection to any such exception that is a Title Objection. If a Defect and describing and giving the location of the defective parcel to the extent that Purchaser can reasonably identify the same (the “Defective Parcel”) and Seller fails to cure or remove such exception at or prior to the Closing Date Closing, Purchaser shall have the option of: (as i) waiving the same may be extended) either (x) does not elect Title Defect and accepting title to Remedy a Title Objectionthe Defective Parcel on behalf of Timberlands II, LLC with no adjustment to the Purchase Price therefore, or (yii) having elected by written notice to Remedy a Title Objection for any reason whatsoever does not do so, at or Seller prior to Closing, excluding the Closing Date Defective Parcel from the Seller Land or Leasehold Interests from the Purchased Assets (the “Deleted Parcel”) and reducing the Installment Note Purchase Price as provided in Section 11.5(c) below. Notwithstanding anything to the contrary contained herein, in the event that Purchaser shall give timely written notice of any Title Defect affecting a portion of the Seller Land or the Leasehold Property for which the applicable Title Review Period expired post-Closing, and Seller is unable or unwilling to cure such Title Defect within sixty (60) days following Purchaser’s delivery of written notice thereof, then Purchaser shall have the right to cause Timberlands II, LLC to convey, assign or transfer the Defective Parcel back to Seller (at which time the same may shall be adjourned)considered a “Deleted Parcel”) in which case, Buyer may at its sole and exclusive option within five Seller shall either (5i) Business Days after convey, assign or otherwise transfer a leasehold interest or fee simple interest owned by Seller fails to elect to Remedy a Title Objection or, with respect to real property which is not included in the transactions described herein (“Substitution Property”); provided that such Substitution Property has a value calculated in accordance with paragraph (c) of this Section 11.5 and other characteristics substantially similar to the Deleted Parcel and is otherwise acceptable to Purchaser or (ii) in the event that no such Substitution Property is available, Seller shall upon the conveyance of the Deleted Parcel by Timberlands II, LLC remit to Purchaser (or Timberlands II, LLC) the value of the Deleted Parcel calculated in accordance with paragraph (c) of this Section 11.5.
(c) For any Deleted Parcel which is comprised of the Seller Land, Purchaser shall be entitled to a reduction in the Installment Note Purchase Price equal to the fair market value of such Deleted Parcel if such Deleted Parcel were not affected by the Title Objection that Defect determined in accordance with this paragraph. For any Deleted parcel which is comprised of Leasehold Property, Purchaser shall be entitled to a Seller fails reduction in the Installment Note Purchase Price equal to Remedy the discounted cash flows attributable to the applicable Leasehold Interest determined in accordance with this paragraph. Promptly after having elected Purchaser’s delivery of written notice of Purchaser’s election to do soexclude the Deleted Parcel from the Purchased Assets, the Parties shall consult and negotiate with each other in good faith regarding the appropriate reduction in the Installment Note Purchase Price for said Deleted Parcel. If the Parties are unable to mutually agree on the Closing Date fair market value of the Deleted Parcel, or if applicable, the discounted cash flows with respect to the applicable Leasehold Interest, within thirty (30) days after Purchaser’s delivery of notice of Purchaser’s election to exclude the Deleted Parcel from the Purchased Assets, Seller and Purchaser will refer the matter to independent third party appraiser with at least ten (10) years’ experience in appraising timber and timberland properties selected by Seller and reasonably acceptable to Purchaser (the “Independent Appraiser”), and each of Seller and Purchaser will, at a mutually agreed time within three (3) business days of such referral, simultaneously submit to the Independent Appraiser their respective calculations of the fair market value of such Deleted Parcel, or if applicable, the discounted cash flows with respect to the applicable Leasehold Interest. The Independent Appraiser shall within thirty (30) days of such final submissions, select one of the two final submissions (and shall not select any other amount) as being most representative of the fair market value of such Deleted Parcel, or if applicable, the discounted cash flows with respect to the applicable Leasehold Interest, and the submission so selected shall be final and binding on the Parties. The costs and expenses of the Independent Appraiser in connection with the dispute resolution procedure set forth herein shall be paid by the non-prevailing Party.
(d) Purchaser shall cause Timberlands II, LLC to grant to Seller, without costs, access easements over and across the Seller Land or Leasehold Interests upon reasonable terms and over reasonable routes as may be necessary for Seller’s access to any Deleted Parcels, and Seller shall grant to Timberlands II, LLC, without costs, access easements over and across the Deleted Parcels upon reasonable terms and over reasonable routes as may be necessary for Timberlands II, LLC’s access to the Seller Land or Leasehold Interests.
(e) If within one year after the Closing, Seller cures the Title Defect on a Deleted Parcel in accordance with applicable law and to Purchaser’s reasonable satisfaction, and notifies Purchaser thereof in writing, Purchaser shall cause Timberlands II, LLC to purchase the Deleted Parcel from Seller at a price equal to the value by which the Purchase Price was reduced because of the Deleted Parcel (and otherwise on the terms set forth in this Agreement), provided that the Deleted Parcel is in substantially the same conditions, reasonable wear and tear excluded, as it was as of the date of Closing. The Parties shall close the purchase and sale of any such Deleted Parcel on a date sixty days after Seller so notifies Purchaser that the cure or remediation has been completed (or on such other date as Purchaser and Seller may be adjournedagree), and at such closing the Parties shall take the actions (and bear the costs) either with respect to the purchase and sale of such Deleted Parcel that would have been taken (1or borne) terminate by such Party under this Agreement had the Deleted Parcel been included in the Seller Land or Leasehold Interests, and such closing thereafter shall be considered the “Closing” with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except parcel for such obligations as are specifically stated in this Agreement to survive the termination all purposes of this Agreement, or (2. This Section 11.5(e) elect to accept title to shall survive the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Timberland REIT, Inc.)
Title Objections. If any revision Within fifteen (15) days after receiving the later of the Title Commitment or update of any Preliminary the Survey, Buyer shall notify Seller if the Title Report Commitment or Survey discloses reveals any liens, encumbrances, claims or exceptions to title other than Permitted Encumbrances shown that, in the Preliminary Title ReportBuyer’s reasonable judgment, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely are unacceptable (the foregoing, collectively, the “Title Objections”). If Seller is unable or unwilling to cure any Title Objections, Seller will provide written notice thereof to Buyer within fifteen (15) days following receipt of notice of Title Objections from Buyer and Buyer shall so notify have the right, at its option, by written notice to Seller within fifteen (15) days following receipt of Seller’s written notice, either (i) to terminate this Agreement and -47- TERMINAL SALE AND PURCHASE AGREEMENT (XXXXXX (WEST)) EXECUTION VERSION obtain a refund of the particular Property Xxxxxxx Money and all interest thereon, whereafter both Parties shall be relieved and discharged of any rights, liabilities or obligations hereunder, or (ii) to which waive such Title Objection relates (“defect and proceed to Closing. Buyer’s Objection Notice”): failure to exercise the right to terminate within the said fifteen (a15) on or before day period shall constitute a waiver of Buyer’s right to terminate with respect to such title matters. However, if Seller elects to cure the fifth Title Objections (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior although Seller will have no such obligation to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”do so), time being Seller shall provide Buyer with notice of its intention to cure same within the essence. Such fifteen (15) days aforesaid and Seller shall have until an opportunity, at its expense, to remove such Title Objections within sixty (60) days following receipt of written notice from Buyer identifying the Closing Date Title Objections (and may adjourn the Closing for such reasonable periods“Title Cure Period”). In no event shall Seller have any obligation to commence litigation or to incur costs in excess of One Thousand Dollars ($1,000.00) to have each such Title Objection (i) insured over, (ii) removed, cure or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate Objections. If Seller is unable to remove cure any Title Objections (except that each Seller shall be obligated to remove within the following “Mandatory Title Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********Period that, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any reasonable opinion of the Title Objections raised Company or Buyer, must be cured in Buyer’s Objection Notice. Other than the exceptions order to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance deliver good and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned)marketable title, Buyer may at may, as its sole and exclusive option remedy, and upon written notice to Seller within five fifteen (515) Business Days days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return expiration of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual PropertyTitle Cure Period, except for such obligations as are specifically stated in this Agreement to survive the termination of terminate this Agreement, or (2) elect to accept title to in which event the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions Xxxxxxx Money shall be deemed a Permitted Encumbrance; if Buyer fails fully refunded to timely make either such election, Buyer shall be deemed to have elected option (1)Buyer.
Appears in 1 contract
Samples: Terminal Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Title Objections. If any revision or update The Purchaser shall promptly after the date hereof order a title commitment for and survey of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller each of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essenceFacilities. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each The Seller shall be obligated to pay the costs of title examinations, title insurance and surveys, and, notwithstanding anything to the contrary in this Agreement, such obligation shall survive any termination of this Agreement. Within fifteen (15) business days after the Purchaser has received all of the title commitments and surveys, the Purchaser shall notify Magellan in writing of any matters listed in the title commitments or depicted (or not depicted) on the surveys (including, without limitation, flood plains) of which the Purchaser disapproves except for the Permitted Exceptions (the "Objections"), provided, however, that in no event shall the Purchaser have the right to disapprove or object to any flood plain matter with respect to any Facility unless (i) an ordinance, law, rule or regulation applicable to said Facility provides that such Facility may not be rebuilt following a casualty because such Facility is located in a flood plain, or (ii) the Purchaser reasonably determines that the uninsured cost to rebuild would be unduly burdensome or the flood risk cannot be insured at reasonable rates. If the Purchaser so notifies Magellan of any Objections, then, within a reasonable period of time after such notice, the Seller shall take all action necessary to eliminate or cure such Objections or to make arrangements, satisfactory to the Purchaser, to have such Objections eliminated or cured prior to the Closing. If the Seller is unable or unwilling to eliminate or cure all such Objections, or to make satisfactory arrangements to have same eliminated or cured prior to the Closing to the Purchaser's satisfaction, and the Purchaser does not waive the Seller's failure to eliminate or cure such Objections as provided in Section 8.1, then the Purchaser shall have the right, at its sole option, to terminate this Agreement by giving written notice of such election to Magellan. Upon the giving of any such termination notice, this Agreement shall terminate, and all rights, obligations and liabilities of the parties hereunder shall be released and discharged. If the Purchaser fails to object to any matter within such fifteen (15) business day period or thereafter waives it Objections, such matters shall be deemed approved and shall constitute Permitted Exceptions hereunder. Without limiting the generality of the foregoing, the Seller shall have the absolute obligation, whether or not the Purchaser objects, to cure or remove of record or, with the Purchaser's consent, obtain affirmative coverage over the following “Mandatory Cure Items”matters at or before the Closing: (Aa) the all mortgages or deeds of trust identified on affecting the Preliminary Title Report Facilities, except those securing the Industrial Revenue Bonds that are not assumed by Buyer pursuant to Exhibit AA attached heretothe Purchaser assumes at Closing; (b) all past due ad valorem taxes and assessments of any kind constituting a lien against the Facilities; (c) all mechanic's, (B) any materialmen's and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller similar liens; and (Dd) any other Title Objection that would cost not more than all judgments constituting a lien against the Facilities. Notwithstanding the foregoing *** ******* ******** ******* **********to the contrary, in the aggregate, Purchaser shall use its commercially reasonable bests efforts to remove). Each deliver Objections to the Seller agrees to notify Buyer on a Facility by Facility basis within five fifteen (515) Business Days of such Seller’s business days following the Purchaser's receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to a title which commitment and survey for each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)Facility.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Magellan Health Services Inc)
Title Objections. If any revision or update Prior to the expiration of any Preliminary the Due Diligence Period (the "Title Report or Survey discloses exceptions Review Period"), Purchaser will notify Seller in writing (an "Objection(s) Notice") of survey and/or title defect(s) (the "Objection(s)") it desires Seller to title other than Permitted Encumbrances shown cure. Seller agrees to use commercially reasonable efforts to cure the Objection(s) identified in the Preliminary Title ReportObjection Notice; provided, or Survey received during the Study Periodhowever, that would cause title in no event will Seller be obligated to an Individual Property file a lawsuit nor expend more than $100,000 to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely do so (the foregoing, collectively, the “Title Objections”"Cure Limitations"), Buyer shall so notify . If Seller is unable to cure any Objection(s) identified in the Seller of Objection Notice (other than those which exceed the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (aCure Limitations) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before prior to the Closing Date, either Purchaser or Seller may, at its option, elect (b) on or before one (1) Business Day prior by delivering written notice to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but other prior to the Closing Date) or (c) on to extend the Closing Date if Buyer becomes aware of same on the Closing Date for up to sixty (each such date, the “Objection Cut Off Date”), 60) days to allow Seller additional time being of the essenceto cure. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection If (i) insured over, Purchaser identifies Objection(s) in the Objection Notice that exceed the Cure Limitations and/or (ii) removed, or (iiiSeller is unable to cure the Objection(s) corrected (each as selected by a Seller, a “Remedy”) (identified in the case Objection Notice prior to Closing (or the expiration of (i) or (iiithe extension, if applicable), to the reasonable satisfaction of BuyerPurchaser may, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”at its option: (Aa) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating Deposits or (b) proceed to such Individual Property as shown on Schedule 2.1(aClosing, in which latter event any and all Objection(s) (that remain uncured will be Permitted Exceptions and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall Purchaser will be deemed to have elected option accepted the Property subject thereto and waived any right it may have to terminate this Agreement on such basis. Additionally, Purchaser will, prior to Closing, notify Seller in writing (1an "Interim Notice") of any survey and/or title defect(s) (the "Interim Defect(s)") it desires Seller to cure. Seller agrees to use commercially reasonable efforts to cure the Interim Defect(s) identified in the Interim Notice; provided, however, in no event will Seller be obligated to file a lawsuit nor expend more than the portion of the $100,000 described above not previously expended in curing the Objection(s) (collectively, the "Interim Cure Limitations"). If Seller is unable to cure any Interim Defect(s) identified in the Interim Notice on or prior to the Closing Date, (i) Seller may, at its option, elect (by delivering written notice to Purchaser prior to the Closing Date) to extend the Closing Date for the lessor of (A) sixty (60) days or (B) the date upon which Purchaser's rate lock will expire and/or (ii) Purchaser may, at its option, elect (by delivering written notice to Seller prior to the Closing Date) to extend the Closing Date for up to sixty (60) days to allow Seller additional time to cure. If Seller is unable to cure the Interim Defect(s) identified in the Interim Notice prior to Closing (or the expiration of the extension, if applicable), Purchaser may, at its option: (a) elect to terminate this Agreement, in which case Purchaser will receive a return of the Deposits, Seller will reimburse Purchaser for all reasonable, verifiable out-of-pocket expenses incurred by Purchaser in connection with the exercise of its due diligence rights hereunder (up to a maximum of $75,000) or (b) proceed to Closing, in which latter event any and all Interim Defect(s) that remain uncured will be Permitted Exceptions and the Purchaser will be deemed to have accepted the Property subject thereto and waived any right it may have to terminate this Agreement on such basis.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Arvida JMB Partners L P)
Title Objections. (i) Within two (2) days after the SPE’s receipt of both a Title Commitment and the Survey for the Property, SPE shall notify CMRG in writing of SPE’s objection to any exceptions or other title matters shown on the Title Commitment or the Survey not constituting a Permitted Encumbrance (each, a “Title Objection”). SPE acknowledges receipt and approval of the Title Commitment, subject to receipt and review of the Survey. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyeris not removed or resolved by CMRG to SPE’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than satisfaction at least five (5) Business Days before the Closing Date (but days prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller then SPE shall have until the Closing Date (option, as its sole remedy, upon written notice to CMRG, to terminate this Agreement, in which event the Xxxxxxx Money Deposit shall be returned to SPE and may adjourn the Closing for such reasonable periods) to neither SPE nor CMRG shall have each such Title Objection (i) insured overany further duties or obligations under this Agreement, except as otherwise provided herein.
(ii) removedIf any supplement to the Title Commitment or the Survey discloses any additional material title defects which were not created by or with the consent of SPE, or and which are not acceptable to SPE, SPE shall notify CMRG in writing of its objection thereto (iii) corrected (each as selected by a Sellereach, a an “RemedyAdditional Title Objection”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days days following receipt of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all supplement or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objectionrevision. If a Seller any Additional Title Objection is not removed or resolved by CMRG to SPE’s satisfaction at or least five (5) days prior to the Closing Date Date, then SPE shall have the option, as its sole remedy, to terminate this Agreement upon written notice to CMRG, in which event the Xxxxxxx Money Deposit shall be returned to SPE and neither SPE nor CMRG shall have any further duties or obligations under this Agreement, except as otherwise provided herein.
(as the same may be extendediii) either (x) does not elect SPE’s failure to Remedy a Title Objection, or (y) having elected to Remedy timely deliver a Title Objection for any reason whatsoever or an Additional Title Objection shall be deemed SPE’s acceptance of the matters disclosed by the Title Commitment and the Survey. If SPE does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to terminate this Agreement by reason of any Title Objection that a Seller fails to Remedy after having elected to do soor Additional Title Objection as provided in this Section, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which then such Title Objection relates or Additional Title Objection shall be deemed waived and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (approved by SPE and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 1 contract
Samples: Contribution Agreement (Casual Male Retail Group Inc)
Title Objections. (i) Within seven (7) days after the Purchaser’s receipt of both a Title Commitment and the related Survey for each Property, Purchaser shall notify Seller in writing of Purchaser’s objection to any exceptions or other title matters shown on a Title Commitment or the related Survey (each, a “Title Objection”). If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates is not removed or resolved by Seller to Purchaser’s satisfaction at least five (“Buyer’s Objection Notice”): (a5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, to terminate this Agreement, in which event neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein.
(bii) on If any supplement to a Title Commitment or before one the related Survey discloses any additional title defects which were not created by or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (1each, an “Additional Title Objection”) Business Day prior to the Closing Date if received by Buyer less than within five (5) Business Days before the Closing Date days following receipt of such supplement or revision. If any Additional Title Objection is not removed or resolved by Seller to Purchaser’s satisfaction at least five (but 5) days prior to the Closing Date) , then Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or (c) on before the Closing Date if Buyer becomes aware of same on the Closing Date (each such dateDate, the “Objection Cut Off Date”), time being of the essence. Such in which event neither Purchaser nor Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured overany further duties or obligations under this Agreement, (ii) removed, or except as otherwise provided herein.
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitments and related Surveys. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, or incur any expenseas provided in this Section 2.01, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other then such Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s or Additional Title Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 1 contract
Title Objections. 5.1 If any revision or update of any Preliminary Title Report a Commitment or Survey discloses exceptions which are not acceptable to title other SCOLP, in its sole discretion, SCOLP shall notify Contributors in writing of its objections to such exceptions (the "Title Defects") not later than Permitted Encumbrances shown in October 12, 2012. If SCOLP objects to any exception disclosed on the Preliminary Title Report, Commitment or Survey received during within such title objection period referenced above, such exception shall not be treated as a Permitted Exception hereunder except as otherwise provided in this Section 5.1. Following Contributors’ receipt of written notice from SCOLP identifying any Title Defects as set forth above, Contributors shall have fifteen (15) days from the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller date notified in writing of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (aDefect(s) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Dateclaimed, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection either (i) insured overto remedy the title, or (ii) removedto obtain affirmative title insurance over SCOLP’s objections which is reasonably acceptable to SCOLP, or (iii) corrected to deliver written notice to SCOLP that it is unable or unwilling to remedy the title or obtain the affirmative title insurance. If the Contributors remedy the title or shall obtain such affirmative title insurance within the time specified, the Closing Date shall be fifteen (each as selected by a Seller, a “Remedy”15) (in the case days of (i) or (iii), to the reasonable satisfaction of Buyerwritten notification thereof, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more no sooner than the foregoing *** ******* ******** ******* **********Closing Date hereinafter specified. If Contributors notify SCOLP that they are unable or unwilling to remedy a Title Defect, in the aggregatethen, to remove). Each Seller agrees to notify Buyer within SCOLP shall have five (5) Business Days business days after receipt of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all notice (or any upon the expiration of the fifteen (15) day period if no notice is provided to SCOLP by the Contributors) to terminate this Agreement or to waive such Title Objections raised Defect(s) and proceed to Closing and in Buyer’s Objection Notice. Other than the exceptions event that SCOLP fails to title which each Seller is required pursuant to terminate this Section 3.3 to RemedyAgreement by such date, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date then such Title Defect(s) shall be deemed a Permitted Encumbrance waived by SCOLP and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a to be “Permitted Encumbrance; if Buyer fails Exceptions” for all purposes under this Agreement. If objection to timely make either such electiontitle is not made by SCOLP within the title objection period referenced above, Buyer SCOLP shall be deemed to have elected option waived any matter or alleged Title Defect(s) appearing in the Commitments or Surveys. Each Contributor agrees to cause to be discharged or insured over by the Title Company on or prior to Closing mortgage financing documentation (1)including, without limitation, the lien of any mortgage, assignment of leases and/or UCC financial statements) securing Contributors’ mortgage financing encumbering the Projects other than those for the Assumed Debt and mechanics liens and other liens evidencing monetary encumbrances (other than liens for real estate taxes and assessments) which are not reflected in the Commitments and which have been created through the acts or omissions of Contributors and which are removable by payment of liquidated and ascertainable amounts.
Appears in 1 contract
Title Objections. If Buyer shall disapprove any revision title or update of any Preliminary Title Report or Survey discloses exceptions survey matters pursuant to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”)this Paragraph 4, Buyer shall so notify give written notice thereof ("Title Objection Notice") to Seller within the time periods provided for in Para-graphs 4(A)(1) or 4(A)(2), as applicable. Upon receipt by Seller of the particular Property to which such a Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing DateNotice given in a timely manner, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such then Seller shall have until the sooner to occur of (1) five (5) business days from receipt of such Title Objection Notice and (2) the Closing Date, within which to notify Buyer as to each disapproved matter pursuant to this Paragraph 4 either that (i) Seller elects not to cause such disapproved matter to be removed as of the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each provided Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the any existing mortgages or deeds of trust identified securing loans obtained by or assumed by Seller, any mechanic's liens for work by or on behalf of Seller, and any tax or judgement liens against Seller that are secured in whole or in part by the Property or any portion thereof, and further provided Seller shall be obligated to bond over any mechanic's liens for work by or on behalf of third parties that are secured in whole or in part by the Property or any portion thereof), or (ii) Seller intends to either (a) use commercially reasonable efforts to cause such disapproved matter to be removed on the Preliminary Title Report that Closing Date, or (b) obtain a title endorsement (if available and if acceptable to Buyer in Buyer's sole and absolute discretion) insuring over such disapproved matter. Seller shall have no liability except as expressly set forth herein, if for any reason, after electing under (ii) above, such additional disapproved matters are not assumed removed or insured over as of the Closing Date. Failure to deliver any written notification by Seller of its election within such period shall be deemed to be an election not to cause any such additional disapproved matters to be removed. If Seller elects not to cause any or all such additional disapproved matters to be removed or insured over as aforesaid, Buyer pursuant shall have until the sooner to Exhibit AA attached hereto, occur of (B1) any and all liens voluntarily placed by a Seller against its Property after two (2) business days from receipt of written notice thereof (or from the date of the applicable Preliminary Title Report in violation of this Agreement, (CSeller's deemed election as aforesaid) any and all liens arising by, through or under a Seller and (D2) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********Closing Date, in the aggregate, to remove). Each Seller agrees within which to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) writing either that (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to Buyer revokes its disapproval and will proceed with the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return purchase of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against in the Purchase Price and will take subject to such exceptions matters, or (y)Buyer terminates this Agreement (and thereupon the Deposit shall be deemed a Permitted Encumbrance; if delivered to Buyer fails and, except for the Surviving Obligations (as hereinafter defined), this Agreement shall thereupon terminate). Failure to timely make either deliver any written notification by Buyer of its election within such election, Buyer period shall be deemed to have elected option (1)be an election to terminate this Agreement as set forth above.
Appears in 1 contract
Samples: Purchase Agreement (Carlyle Real Estate LTD Partnership Xv)
Title Objections. If any revision or update Prior to the expiration of the Due Diligence Period, the County Parties shall give written notice to Sellers of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown matters contained in the Preliminary Title Report, Commitment or Survey received during Title Documents to which the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely County Parties object (the foregoing“Objection Notice”). Any matters in the Title Commitment to which the County Parties do not so object prior to the expiration of the Due Diligence Period shall be “Permitted Exceptions.” Notwithstanding the preceding sentence, collectively, taxes for 2018 and subsequent years shall be Permitted Exceptions but shall be pro- rated as of the Closing. Sellers shall have thirty (30) days after receipt of the Objection Notice (“Sellers’ Cure Period”) to cure or to agree to cure at or before Closing such Title objections (“Objections”), Buyer to the satisfaction of the County Parties, as Sellers may choose, in their sole discretion, to cure. If Sellers fail to timely act in accordance with the preceding sentence during Sellers’ Cure Period, Sellers will be deemed to have chosen not to cure any Objections. If Sellers are unable or unwilling to cure any of the Objections, Sellers shall so promptly notify the Seller County Parties in writing of such inability or unwillingness. If Sellers timely give notice to the County Parties that Sellers are unable or unwilling to cure any of the particular Property Objections, or if Sellers otherwise fail to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before cure the fifth (5th) Business Day after receipt of any revision or update if received Objections, then the County Parties may, by Buyer on or before written notice to the fifth (5th) Business Day before Sellers and the Closing Date, (b) on or before one (1) Business Day Escrow Agent prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being expiration of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection Due Diligence Period: (i) insured overwaive any such Objections, and proceed to Closing; or (ii) removed, terminate this Agreement and receive back the Xxxxxxx Money. Notwithstanding the foregoing or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case any other provision of (i) or (iii), this Agreement to the reasonable satisfaction of Buyercontrary, but subject to Section 3.4 below); providedat Closing, however, nothing herein Sellers shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or remove all deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached heretotrust, (B) any mortgages and all liens voluntarily placed by a Seller against its other security documents encumbering the Property after which secure the date payment of any indebtedness (to the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens extent arising by, through or under a Seller Sellers or their affiliates); and (DB) any other Title Objection that would cost not more than shall either remove or, but only with the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any prior written consent of the County Parties, cause U.S. Title Objections raised in Buyer’s Objection Notice. Other than Insurance Agency to affirmatively insure against the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant following to the terms hereof on extent arising by, through or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either under Sellers and/or their affiliates: (x) does not elect to Remedy a Title Objectionany mechanic’s or materialmen’s liens against the Property arising by, through or under Sellers; and (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at tax or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (judgment liens or charges against Sellers and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 1 contract
Samples: Purchase Agreement
Title Objections. If any revision or update Purchaser shall order a title report and a full lien and municipal search with respect to the Premises promptly upon execution of any Preliminary Title Report or Survey discloses exceptions this Contract, and shall instruct its title company to deliver a copy of the title report and all title documents and title updates and continuations to be delivered to Xxxxxx & Xxxxxx P.C., 000 Xxxx 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq., at the time such documents and information are delivered to Purchaser and/or its counsel. All objections to title other than Permitted Encumbrances shown must be submitted by Purchaser in the Preliminary Title Report, or Survey received during the Study Period, that would cause title writing to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after Xxxxxx & Xxxxxx P.C. promptly following Purchaser's receipt of any revision a title report and each title update or update if received by Buyer on or before the fifth continuation, but not less than ten (5th10) Business Day before the Closing Date, (b) on or before one (1) Business Day days prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost Closing set forth herein. All objections not more than the foregoing *** ******* ******** ******* **********, in the aggregate, so submitted to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date 's counsel shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objectionwaived by Purchaser, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, except with respect to any Title Objection matters of title initially disclosed to Purchaser and Seller within such 10-day period (in which event any objections to title shall be communicated to Seller's counsel not later than the second business day following receipt, so long as such second business day precedes the date of the Closing). Any attempt by Seller to cure an objection shall not be construed as an admission by Seller that a Seller fails such objection is one which would give Purchaser the right to Remedy after having elected to do socancel this Contract. NINTH AVENUE ASSOCIATES BY: XXXXXX XXXX PROPERTIES XI, on the Closing Date (as the same General Partner BY: XXXXXX HILL PROPERTIES, General Partner By: /s/ Xxxxxx Xxxxxxx --------------------------- Xxxxxx Xxxxxxx, General Partner XX XXXXX OPERATING PARTNERSHIP, L.P., BY: XX XXXXX REALTY CORP., General Partner By: /s/ Xxxxxx X. Xxxxx --------------------------- Xxxxxx X. Xxxxx, Executive Vice President LIST OF SCHEDULES AND EXHIBITS 00 Xxxx 00xx Xxxxxx Schedule A - Legal Description of Premises Schedule B - Permitted Exceptions Schedule C - Purchase Price Schedule D - Miscellaneous Information Schedule E - Existing Leases, Rent Roll and Security Deposits Schedule F - Insurance Schedule G - Pay Roll/Employees Schedule H - Service Contracts Schedule I - Certain Pending Transactions for which Purchaser may be adjourned) either (1) terminate this Agreement with respect Obligated to such Individual Property Pay a Brokerage Commission Schedule J - [Intentionally Omitted] Schedule K - Operating Statements Schedule L - List of Existing Tenants for Estoppel Certificates Schedule M - Leasing Criteria Exhibit A - Assignment and Assumption of Leases and Security Deposits Exhibit B - Assignment and Assumption of Contracts Exhibit C - Form of Notice to which such Title Objection relates Tenants Exhibit D - Tenant Estoppel Certificate Schedule A Legal Description of Premises ALL that certain plot, piece or parcel of land, situate, lying and receive a return being in the Borough of Manhattan, City, County and State of New York, bounded and described as follows: BEGINNING at the corner formed by the intersection of the portion easterly side of Ninth Avenue and the southerly side of 00xx Xxxxxx; RUNNING THENCE easterly along the southerly side of 35th Street, 198 feet 10 1/2 inches; THENCE southerly parallel with Ninth Avenue and part of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder way through a party wall, 98 feet 9 inches; THENCE westerly parallel with respect to that Individual Property35th Street, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title 198 feet 10 1/2 inches to the Individual Property as it then is without any reduction ineasterly side of Ninth Avenue; THENCE northerly along said easterly side of Ninth Avenue, abatement of98 feet 9 inches to the point or place of BEGINNING. Premises known as: 000 Xxxxx Xxxxxx a/k/a 000-000 Xxxx 00xx Xxxxxx, or credit against the Xxx Xxxx, Xxx Xxxx. Block 758 Lot 82 Schedule C PURCHASE PRICE The Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails paid as follows:
(a) By check subject to timely make either such electioncollection or by wire transfer, Buyer shall be deemed the receipt of which is hereby acknowledged by Seller: $ 1,450,000.00
(b) By check, checks or wire transfer delivered to have elected option Seller at Closing in accordance with the provisions of Section 2.02: $27,550,000.00 -------------- Purchase Price $29,000,000.00 ============== Schedule D MISCELLANEOUS
1. Title insurer designated by the parties (1).ss.1.02):
Appears in 1 contract
Title Objections. If any revision or update of any Preliminary such Title Report or Commitment and/or Survey discloses disclose matters and exceptions to title title, other than Permitted Encumbrances shown in the Preliminary Title ReportExceptions, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely which Purchaser objects (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the ) in a written notice to Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less delivered no later than five (5) Business Days before days following receipt of the Closing Date Title Commitment and Survey, Seller (but in its sole discretion) shall have ten (10) business days (the “Seller Cure Period”) from the date of such notice to have the Title Objections removed or to obtain the commitment of the Title Company to provide affirmative insurance to Purchaser over such Title Objections at standard rates. If Seller fails or elects not to have any Title Objections removed or fails or elects not to cause the Title Company to issue its commitment to insure over the same on or prior to the Closing Date) expiration of the Seller Cure Period, Purchaser may, as its sole remedies, either elect to take title as it then is or (c) on terminate this Contract and receive a return of the Closing Date if Buyer becomes aware Deposit by delivery of same on the Closing Date (each such date, notice to that effect at any time prior to the “Title Objection Cut Off Expiration Date”), time being ” which shall mean within five (5) days after the sooner of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) the date on which Seller notifies Purchaser of its failure to have any such Title Objections removed or insured over, or (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case expiration of (i) or (iii), the Seller Cure Period. If Purchaser shall elect to the reasonable satisfaction of Buyer, but take title subject to Section 3.4 below); any Title Objections, all of such Title Objections shall thereupon become, for all purposes hereof, additional “Permitted Exceptions;” provided, however, nothing herein Mandatory Cure Items (as hereinafter defined) shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller not be considered Permitted Exceptions and shall be obligated removed and cured by Seller at its sole expense prior to remove the following Closing. If any of the time periods set forth in this Section 1.01 extend beyond the Closing Date, then notwithstanding anything set forth in this Contract to the contrary, the Closing Date shall be extended to permit the applicable party to have the full time period set forth in this section. “Mandatory Cure Items”: ” shall mean liens which are of a definite and ascertainable amount which in the aggregate can be removed at the Closing by payment of monies, and which either (A) the mortgages represent, evidence, secure or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant otherwise relate to Exhibit AA attached heretomortgage debt, security interests, and other financing documents, (B) any represent taxes or assessments which are then delinquent or which are then due and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreementpayable, (C) relate to any and all liens arising bymechanics or materialmen’s liens, through or under a Seller and (D) any other Title Objection that would cost monetary liens. Purchaser shall not more than the foregoing *** ******* ******** ******* **********, in the aggregate, be obligated to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or identify any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not Mandatory Cure Items as a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 1 contract
Title Objections. (a) Buyer has ordered, at its expense, title commitments ("Commitments") for ALTA Leasehold Owner's Policies of Title Insurance to be arranged by such national title insurance company as Buyer may select (the "Title Agent"). If any revision desired, Buyer may order a survey of either or update both of any Preliminary the Properties ("Surveys"). Buyer shall request the Title Report or Survey discloses Agent to deliver copies of the Commitments and all title exceptions to title other than Permitted Encumbrances shown in each of Buyer and Seller as promptly as the Preliminary Title Reportsame are available, or Survey received during the Study Periodand, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”)likewise, Buyer shall so request its surveyor to deliver two copies of the Survey(s), if ordered, to Buyer and Seller as soon as the same are available. Buyer must notify Seller no later than the last day of the Due Diligence Period of any matters affecting the condition of title to a Property which are not acceptable to Buyer in its good faith judgment ("Title Objections"). If Buyer notifies Seller of any Title Objections, Seller shall have the particular Property right, but no obligation, to which such cure, remove or cause the title insurer to insure over any Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day Objections and shall notify Buyer within five days after receipt of any revision the notice of Title Objections if Seller intends to attempt to cure, remove or update if received insure over such Title Objection(s). Absent such notice from Seller, Buyer may terminate this Contract by giving a Termination Notice to Seller within ten days after Seller's five-day notice period expires. Buyer's failure to timely give such Termination Notice shall constitute Buyer's agreement that the subject Title Objections are Permitted Exceptions. Buyer on or acknowledges receipt of the Commitments and copies of most of the title exception documents mentioned therein and Buyer is in the process of requesting from the Title Agent the relevant missing pages, exhibits and complete documents. If Buyer does not receive complete copies of all such missing documentation at least five business days before the fifth (5th) Business Day before end of the Closing DateDue Diligence Period, then the period in which Buyer may notify Seller of Title Objections directly concerning such delinquent documentation shall be automatically extended to the date five business days following Buyer's receipt of true and complete copies of the last missing documents referenced in the Commitments.
(b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and No matter may adjourn the Closing for such reasonable periods) to have each such be a Title Objection if it is a Permitted Exception. "Permitted Exceptions" are those matters subject to which a Leasehold Estate is to be purchased and conveyed and shall include: (i) insured overmatters which were or are caused or created by acts done or suffered by Buyer, (ii) removedmatters accepted by Buyer, or and (iii) corrected (each as selected by a Seller, a “Remedy”) (exceptions stated in the case Commitment or identified in the Survey which are not timely identified as Title Objections in a notice from Buyer to Seller as provided above.
(c) Notwithstanding the foregoing, liens which secure indebtedness of Seller or the owner of the fee interests in the Properties or adjacent shopping centers (iexcept standard printed title policy exceptions and liens for non-delinquent real estate taxes) or shall not be Permitted Exceptions unless covered by the SNDAs (iii), as to the reasonable satisfaction of fee interest) to be delivered at Closing or waived in writing by Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a .
(d) Buyer acknowledges that Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant makes no warranties as to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return condition of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against Properties other than the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1representations in Subsection 5.2(b).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Leaseholds) (Gottschalks Inc)
Title Objections. If any revision or update Not later than ten (10) days prior to the Inspection Date (“Objection Deadline”), Purchaser shall give Seller written notice of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown matters disclosed in the Preliminary Title Report, Commitment or the Survey received during the Study Period, that would cause title which are not acceptable to an Individual Property Purchaser (such objected to be uninsurable or would render title unmarketable or constitute matters being sometimes hereinafter referred to individually as a monetary lien or judgment on a Property, or encumbers a Property materially “Title Objection,” and adversely (the foregoing, collectively, collectively as the “Title Objections”). Within ten (10) days after receipt from Purchaser of a written notice of any Title Objections (“Seller’s Response Period”), Buyer Seller shall so notify the Purchaser in writing (a “Title Objection Response”) as to whether Seller will cure each such Title Objection, and if Seller elects to cure any one or more of the particular Property to which Title Objections, then Seller shall satisfy or correct, at Seller’s expense, each such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt date of any revision or update if received by Buyer Closing. Failure of Seller to give such Title Objection Response on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior expiration of Seller’s Response Period shall be deemed to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being be an election not to cure any of the essenceTitle Objections. Such Except as set forth herein, Seller shall have until the Closing Date (and has no obligation to cure or otherwise remove any matters of title or survey to which Purchaser may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below)object; provided, however, nothing herein shall require a that Seller to (I) bring any action shall, on or proceeding to remove any Title Objection or (II) take any steps, or incur any before the Closing Date and at Seller’s sole cost and expense, satisfy in excess of *** ******* ******** ******* ********** in full any mortgages encumbering the aggregate to remove Property and any Title Objections (except that each Seller shall be obligated to remove other lien or monetary charge against the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising incurred by, through or under a Seller and (D) any other Title Objection that would cost not more than collectively, the foregoing *** ******* ******** ******* **********, in the aggregate, to remove“Monetary Exceptions”). Each Purchaser shall have the continuing right to update the Title Commitment through Closing and to give Seller agrees written notice of any additional conditions, requirements and/or additional objections to notify Buyer title which appear subsequent to the effective date of the Title Commitment or which were not included therein, such objections to be given within five (5) Business Days business days after receipt of such Seller’s receipt of Buyer’s Objection Notice whether such updated Title Commitment. ELECTRONICALLY FILED - 2022 Jun 09 1:42 PM - GREENVILLE - COMMON PLEAS - CASE#2022CP2303045 In the event Seller elects elects, or is deemed to endeavor have elected, not to Remedy all satisfy or cure any one or more of the Title Objections raised of which it is notified in Buyer’s Objection Notice. Other than accordance with the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedyforegoing, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option then within five (5) Business Days days after a receipt of written notice of Seller’s election (or within ten (10) days after the expiration of Seller’s ten (10) day notification period if Seller fails to give any such notice), Purchaser may by written notice to Seller elect one of the following:
(a) To waive such Title Objections to Remedy a the extent Seller has not elected to cure same in Seller’s Title Objection orResponse, with respect to any in which event such waived Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return Objections shall become part of the portion of Permitted Exceptions, and to close the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and transaction contemplated hereby in accordance with the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination terms of this Agreement; or
(b) To cancel this Agreement and to receive a complete refund of the Xxxxxxx Money, in which event the parties hereto have no further rights, duties, or obligations under this Agreement, except as otherwise set forth in this Agreement. The failure of Purchaser to give notice of its election as to the foregoing alternatives within the applicable time shall be deemed an election to proceed under subparagraph (2a) elect above. Except as otherwise permitted by this Agreement, Xxxxxx agrees not to accept alter or further encumber in any way Seller’s title to the Individual Property as it then is without any reduction in, abatement ofProperty, or credit against enter into any agreement that will be an obligation affecting the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails Property subsequent to timely make either such electionthe Closing, Buyer shall be deemed to have elected option (1)after the date of this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement
Title Objections. If any revision On or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Reportbefore October 31, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely 2018 (the foregoing, collectively, the “Title ObjectionsObjection Date”), Buyer Purchaser shall so notify the Seller in writing of any title exceptions or matters identified in the particular Property to Commitment, the Exception Documents, or the Survey of which such Title Objection relates Purchaser disapproves (“Buyer’s Title Objection Notice”): (a) on ). Purchaser’s failure to give a Title Objection Notice with respect to any title exception or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day matter prior to the Closing Title Objection Date if received by Buyer less than shall be deemed to constitute Purchaser’s waiver of its right to disapprove such title exception or matter and its approval thereof. On or before five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property days after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than Notice, Seller shall notify Purchaser in writing of any disapproved title exceptions or matters which the foregoing *** ******* ******** ******* **********Seller is unable or unwilling to cause to be (a) removed or (b) upon Purchaser’s written approval, in the aggregateinsured against, prior to removeor at Closing (“Seller’s Title Objection Response”). Each Seller agrees to notify Buyer within five (5) Business Days of such The Seller’s receipt of Buyerfailure to provide Purchaser with the Seller’s Title Objection Notice whether such Seller elects Response within the time period set forth above shall be deemed to endeavor be the Seller’s election not to Remedy all or cure any of the Title Objections raised in Buyer’s Objection Noticeby Purchaser. Other than Notwithstanding the foregoing or anything herein to the contrary, at or before the Closing, Seller shall cause all financing encumbrances and other monetary liens, if any, to be removed as exceptions to or affecting title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof Property, except liens for taxes not then due and payable, and Seller shall cure any disapproved items it has elected to cure hereunder, and if Seller fails to do so, Purchaser, at its option, by written notice to Seller and Title Company at any time on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same Closing, may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1i) terminate this Purchase Agreement with respect to such Individual Property to which such Title Objection relates and receive a return refund of the portion Exxxxxx Money Deposit (without any instruction from Seller), and, notwithstanding anything herein to the contrary, Seller shall, within ten (10) days of demand therefor, reimburse Purchaser for its actual, out of pocket expenses incurred by Purchaser in connection with the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (preparation and negotiation of this Purchase Agreement and the applicable Seller transactions contemplated hereby and Buyer shall jointly instruct Escrow Holder related thereto, including (A) expenses related to promptly return such portion due diligence and seeking entitlements or other governmental approvals, and (B) fees of the Deposit to BuyerPurchaser’s attorneys, lobbyists and consultants (subsection (A) and such (B), collectively, “Reimbursable Expenses”); (ii) accept title subject to any disapproved matters; or (iii) declare Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination default of this Agreement, Purchase Agreement and pursue any other remedies allowed hereunder or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, at law or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)in equity.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Virgin Trains USA LLC)
Title Objections. (i) Within five (5) Business Days after Purchaser’s receipt of all of the following: a Title Commitment (including legible copies of all title exceptions listed therein), the Zoning Evidence and the Survey for the Property, but in no event beyond thirty (30) days after the Effective Date, Purchaser shall notify Seller and Title Company in writing (E-Mail is acceptable) of Purchaser’s objection to any exceptions or other title matters shown on a Title Commitment or the related Survey (each, a “Title Objection”). If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates with respect to the Property that is not a Permitted Encumbrance is not removed or resolved by Seller or Title Company to Purchaser’s satisfaction by at least five (“Buyer’s Objection Notice”): (a5) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before Closing Date, to terminate this Agreement, in which event the Xxxxxxx Money Deposit shall be refunded immediately to Purchaser and neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein. Notwithstanding the foregoing, the definition of “Permitted Exceptions” shall not include and Seller shall (i) satisfy any mortgage or secured monetary lien against the Property voluntarily created by Seller or any judgments recorded against the Property arising from any claim and related court action adversely decided against Seller (including the preparation or filing of appropriate satisfaction instruments in connection therewith) and (ii) pay and/or otherwise cure all (a) open real estate taxes, water (meter) charges and municipal assessments which are due and payable prior to the date of Closing (subject to adjustment, as provided for herein); (b) on any other voluntary liens or before encumbrances against Seller which are filed against the Property based upon Seller’s written agreement and which have not expired (the foregoing items set forth in (i) and (ii) being hereinafter referred to collectively as “Seller Encumbrance”) by at least one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days Date, and in the event any such Seller Encumbrance is not removed from title to the Real Property within such time period, Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or before the Closing Date (but prior Date, in which event the Xxxxxxx Money Deposit will be returned to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such datePurchaser, the “Objection Cut Off Date”), time being Seller shall reimburse to Purchaser any and all reasonable and actual costs incurred by Purchaser through its due diligence investigation of the essence. Such Property during the Inspection Period, and neither Purchaser nor Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured overany further duties or obligations under this Agreement, except as otherwise provided herein.
(ii) removedIf any supplement to a Title Commitment or the Survey discloses any additional title defects which were not created by or with the consent of Purchaser, or and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of Purchaser’s objection thereto (iii) corrected (each as selected by a Sellereach, a an “RemedyAdditional Title Objection”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days following receipt of such Sellersupplement or revision. If any Additional Title Objection that is not a Permitted Encumbrance is not removed or resolved by Seller to Purchaser’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant satisfaction at least five (5) days prior to the terms hereof Closing Date, then Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or before the Objection Cut Off Date Closing Date, in which event neither Purchaser nor Seller shall be deemed a Permitted have any further duties or obligations under this Agreement, except as otherwise provided herein. Notwithstanding the foregoing, Seller shall remove any Seller Encumbrance and not a Title Objection. If a Seller by at or least one (1) Business Day prior to the Closing Date Date, and in the event any such Seller Encumbrance is not removed from title to the Real Property within such time period, Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or before the Closing Date, in which event the Xxxxxxx Money Deposit will be returned to Purchaser, Seller shall reimburse to Purchaser any and all reasonable and actual costs incurred by Purchaser through its due diligence investigation of the Property during the Inspection Period, and neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein.
(as iii) Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s disapproval of the same may be extended) either (x) matters disclosed by the Title Commitment and related Survey. If Purchaser does not elect to Remedy a terminate this Agreement by reason of any Title Objection or Additional Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do soas provided in this Section 3.01, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which then such Title Objection relates or Additional Title Objection shall be deemed waived and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (approved by Purchaser and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails .
(iv) Notwithstanding anything to timely make either the contrary set forth in this agreement, any Seller Encumbrance affecting the Property must be paid and satisfied by Seller at Closing, in each case whether or not Purchaser objects thereto, and such election, Buyer items shall be deemed to have elected option be included in all Title Objections and Additional Title Objections even if not specifically so included by Purchaser.
(1)v) If Seller is unable to convey title to the Real Property free and clear of the lien of any state or local tax, Seller shall be responsible for either paying such tax or providing to the Title Company security (such as a cash deposit) so that the Title Company can issue a Title Policy with respect to the Property to Purchaser free and clear of such liens, whether or not Purchaser includes such liens as a Title Objection or Additional Title Objection.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Capital Real Estate Trust Inc)
Title Objections. If any revision Within fifteen (15) days after receiving the later of the Title Commitment or update of any Preliminary the Survey, Buyer shall notify Seller if the Title Report Commitment or Survey discloses reveals any liens, encumbrances, claims or exceptions to title other than Permitted Encumbrances shown that, in the Preliminary Title ReportBuyer’s reasonable judgment, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely are unacceptable (the foregoing, collectively, the “Title Objections”). If Seller is unable or unwilling to cure any Title Objections, Seller will provide written notice thereof to Buyer within fifteen (15) days following receipt of notice of Title Objections from Buyer and Buyer shall so notify have the right, at its option, by written notice to Seller within fifteen (15) days following receipt of Seller’s written notice, either (i) to terminate this Agreement and obtain a refund of the particular Property Xxxxxxx Money and all interest thereon, whereafter both Parties shall be relieved and discharged of any rights, liabilities or obligations hereunder, or (ii) to which waive such Title Objection relates (“defect and proceed to Closing. Buyer’s Objection Notice”): failure to exercise the right to terminate within the said fifteen (a15) on or before day period shall constitute a waiver of Buyer’s right to terminate with respect to such title matters. However, if Seller elects to cure the fifth Title Objections (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior although Seller will have no such obligation to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”do so), time being Seller shall provide Buyer with notice of its intention to cure same within the essence. Such fifteen (15) days aforesaid and Seller shall have until an opportunity, at its expense, to remove such Title Objections within sixty (60) days following receipt of written notice from Buyer identifying the Closing Date Title Objections (and may adjourn the Closing for such reasonable periods“Title Cure Period”). In no event shall Seller have any obligation to commence litigation or to incur costs in excess of One Thousand Dollars ($1,000.00) to have each such Title Objection (i) insured over, (ii) removed, cure or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate Objections. If Seller is unable to remove cure any Title Objections (except that each Seller shall be obligated to remove within the following “Mandatory Title Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********Period that, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any reasonable opinion of the Title Objections raised Company or Buyer, must be cured in Buyer’s Objection Notice. Other than the exceptions order to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance deliver good and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned)marketable title, Buyer may at may, as its sole and exclusive option remedy, and upon written notice to Seller within five fifteen (515) Business Days days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return expiration of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual PropertyTitle Cure Period, except for such obligations as are specifically stated in this Agreement to survive the termination of terminate this Agreement, or (2) elect to accept title to in which event the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions Xxxxxxx Money shall be deemed a Permitted Encumbrance; if Buyer fails fully refunded to timely make either such election, Buyer shall be deemed to have elected option (1)Buyer.
Appears in 1 contract
Samples: Terminals Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Title Objections. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report(a) Purchaser shall have until September 4, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely 2007 (the foregoing“Title Review Period”) to object to any matter which is either (i) not a Permitted Exception pursuant to Section 1.2 or (ii) a matter which as to the tract or parcel of land which is encumbered by such matter, would impair, in Purchaser’s reasonable judgment, the value of such tract or parcel of land as timberland by giving written notice to Seller (any such matter, collectively, the a “Title ObjectionsDefect”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being last day of the essenceTitle Review Period. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) right to have each such cure or remove all Title Objection (i) insured over, (ii) removed, Defects at or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), prior to the reasonable satisfaction of Buyer, but subject to Section 3.4 below)Closing; provided, however, nothing herein shall require a that Seller to will cause any Lien (I) bring other than any action or proceeding to remove any Title Objection or (II) take any stepsLiens for Taxes not yet due and payable, or incur any expense, being contested in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (Agood faith by appropriate proceedings) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than encumbering the foregoing *** ******* ******** ******* **********, in the aggregate, Seller Land to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all be satisfied or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof otherwise released on or before the Objection Cut Off Date shall Closing. In the event Purchaser failed to give notice to Seller on or before the expiration of the Title Review Period, such exception will be deemed to be a Permitted Encumbrance Exception and not Purchaser will be deemed to have agreed to accept title to the Seller Land subject to such exception.
(b) In the event that Purchaser gives such written notice of objection to any such exception that is a Title Objection. If a Defect, which notice shall describe and specify the county of the defective parcel (the “Defective Parcel”), and Seller at fails to cure or remove such exception by not later than five days prior to the Closing, Purchaser shall provide written notice to Seller prior to Closing Date that Purchaser desires either to: (i) waive the Title Defect and accept title to the Defective Parcel with no adjustment to the Purchase Price therefor or (ii) exclude the Defective Parcel from the Seller Land (the “Deleted Parcel”) and reduce the Purchase Price as provided in Section 9.4(c) below. In the same event the aggregate sum of the Title Defects exceeds twenty percent (20%) of the Purchase Price, either Purchaser or Seller may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to Agreement, in which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer case neither Party shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer the other hereunder nor except as to all obligations of Seller and Purchaser imposed by the Confidentiality Agreement, which shall Buyer survive such termination and be enforceable in accordance with the terms thereof.
(c) If the Parties are unable to mutually agree on said value, the value of any Deleted Parcel from the Seller Land shall be equal to the average purchase price per acre of the Seller Land multiplied by the number of acres in said Deleted Parcel.
(d) Purchaser shall grant to Seller, without costs, access easements over and across the Seller Land upon reasonable terms and over reasonable routes as may be necessary for Seller’s access to any Deleted Parcels, and Seller shall grant to Purchaser, without costs, access easements over and across the Deleted Parcels upon reasonable terms and over reasonable routes as may be necessary for Purchaser’s access to the Seller Land.
(e) If within one year after the Closing, Seller cures the Title Defect on a Deleted Parcel in accordance with applicable Law and to Purchaser’s reasonable satisfaction, and notifies Purchaser thereof in writing, Purchaser shall have the option, exercisable by written notice to Seller, to purchase the Deleted Parcel from Seller at a price equal to the value by which the Purchase Price was reduced because of the Deleted Parcel (and otherwise on the terms set forth in this Agreement), provided that the Deleted Parcel is in substantially the same condition, reasonable wear and tear excluded, as it was as of the date of Closing. The Parties shall close the purchase and sale of any further liability such Deleted Parcel on a date no more than sixty (60) days after Purchaser so notifies Seller that Purchaser desires to purchase such Deleted Parcel (or obligation to on such other date as Purchaser and Seller hereunder may agree), and at such closing the Parties shall take the actions (and bear the costs) with respect to the purchase and sale of such Deleted Parcel that Individual Property, except for would have been taken (or borne) by such obligations as are specifically stated in Party under this Agreement had the Deleted Parcel been included in the Seller Land, and such closing thereafter shall be considered the “Closing” with respect to survive the termination such parcel for all purposes of this Agreement, or (2. This Section 9.4(e) elect to accept title to shall survive the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Penn Virginia Resource Partners L P)
Title Objections. (i) Within fifteen (15) days after the Purchaser’s receipt of all of the following: a Title Commitment (including legible copies of all title exceptions listed therein), the related Surveys, and the related Zoning Evidence for all Properties, Purchaser shall notify Seller and Title Company in writing (E-Mail is acceptable) of Purchaser’s objection to any exceptions or other title matters shown on a Title Commitment or the related Survey (each, a “Title Objection”). If any revision or update of any Preliminary Title Report or Survey discloses exceptions Objection with respect to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely is not removed or resolved by Seller or Title Company to Purchaser’s satisfaction at least five (5) days prior to the foregoingClosing Date, collectivelythen Purchaser shall have the option, as its sole remedy, subject to the “Title Objections”last paragraph of this Section 3.01(d)(i), Buyer shall so notify the upon written notice to Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, to
(bA) terminate this Agreement, in which event neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein, or
(B) remove the applicable Property from the Properties to be conveyed hereunder (but only if there is a Valid Title Objection with respect to such Property), with an appropriate reduction in the Purchase Price based on or before one (1) Business Day prior the Allocations, and proceed to close with respect to the Closing Date if received remaining Properties.
(ii) If any supplement to a Title Commitment or the related Survey discloses any additional title defects which were not created by Buyer less than or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) Business Days before the Closing Date days following receipt of such supplement or revision. If any Additional Title Objection is not removed or resolved by Seller to Purchaser’s satisfaction at least five (but 5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, to
(A) terminate this Agreement upon written notice to Seller on or (c) on before the Closing Date if Buyer becomes aware of same on the Closing Date (each such dateDate, the “Objection Cut Off Date”), time being of the essence. Such in which event neither Purchaser nor Seller shall have until any further duties or obligations under this Agreement, except as otherwise provided herein, or
(B) remove the Closing Date applicable Property from the Properties to be conveyed hereunder (and may adjourn the Closing for such reasonable periods) to have each such but only if there is a Valid Title Objection with respect to such Property), with an appropriate reduction in the Purchase Price based on the Allocations, and proceed to close with respect to the remaining Property. In no event may the aggregate number of Properties removed pursuant to Section 3.01(d)(i)(B), Section 3.01(d)(ii)(B) and Section 3.04(B) exceed three (i3) insured overProperties, and no more than an aggregate of two (ii2) removedProperties operated as a Bagger Dave’s may be removed pursuant to those Sections. If Purchaser terminates the Related Contract for any reason other than a casualty, a condemnation or a breach by the seller thereunder, then the reference in in the immediately preceding sentence to “three (3) Properties” shall be changed to “two (2) Properties.”
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitment and related Survey. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, as provided in this Section 3.01 then such Title Objection or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Additional Title Objections (except that each Seller Objection shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed deemed waived and approved by Buyer pursuant to Exhibit AA attached hereto, (B) any Purchaser and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall thereafter be deemed a Permitted Encumbrance (but subject to Section 3.01(d)(iv) of this Agreement).
(iv) Notwithstanding anything to the contrary set forth in this agreement to the contrary, any mortgage lien, deed of trust lien, tax lien, judgment lien and/or mechanics liens affecting any Property must be paid and satisfied by Seller at Closing, whether or not Purchaser objects thereto, and such items shall be a Valid Title Objection and shall be deemed to be included in all Title Objections and Additional Title Objections even if not specifically so included by Purchaser, and none of such items shall in any event be deemed to be a Permitted Encumbrance.
(v) If Seller is unable to convey title to a Property free and clear of the lien of any state or local tax, Seller shall be responsible for either paying such tax or providing to the Title Company security (such as a cash deposit) so that the Title Company can issue a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement Policy with respect to such Individual Property to which Purchaser free and clear of such liens, whether or not Purchaser includes such liens as a Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)Additional Title Objection.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Diversified Restaurant Holdings, Inc.)
Title Objections. If any revision or update Purchaser shall order a title report and a full lien and municipal search with respect to the Premises promptly upon execution of any Preliminary Title Report or Survey discloses exceptions this Contract, and shall instruct its title company to deliver a copy of the title report and all title documents and title updates and continuations to be delivered to Xxxxxx & Xxxxxx P.C., 000 Xxxx 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxx, Esq., at the time such documents and information are delivered to Purchaser and/or its counsel. All objections to title other than Permitted Encumbrances shown must be submitted by Purchaser in the Preliminary Title Report, or Survey received during the Study Period, that would cause title writing to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after Xxxxxx & Xxxxxx P.C. promptly following Purchaser's receipt of any revision a title report and each title update or update if received by Buyer on or before the fifth continuation, but not less than ten (5th10) Business Day before the Closing Date, (b) on or before one (1) Business Day days prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost Closing set forth herein. All objections not more than the foregoing *** ******* ******** ******* **********, in the aggregate, so submitted to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date 's counsel shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objectionwaived by Purchaser, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, except with respect to any Title Objection matters of title initially disclosed to Purchaser and Seller within such 10-day period (in which event any objections to title shall be communicated to Seller's counsel not later than the second business day following receipt, so long as such second business day precedes the date of the Closing). Any attempt by Seller to cure an objection shall not be construed as an admission by Seller that such objection is one which would give Purchaser the right to cancel this Contract. NASSAU STREET PARTNERS BY: XXXXXX HILL ASSOCIATES XVI, INC. General Partner By: /s/ Xxxx Xxxxxxx ----------------------------- Xxxx Xxxxxxx, President XX XXXXX OPERATING PARTNERSHIP, L.P., BY: XX XXXXX REALTY CORP., General Partner By: /s/ Xxxxxx X. Xxxxx ----------------------------- Xxxxxx X. Xxxxx, Executive Vice President LIST OF SCHEDULES AND EXHIBITS 000 Xxxxxx Xxxxxx Schedule A - Legal Description of Premises Schedule B - Permitted Exceptions Schedule C - Purchase Price Schedule D - Miscellaneous Information Schedule E - Existing Leases, Rent Roll and Security Deposits Schedule F - Insurance Schedule G - Pay Roll/Employees Schedule H - Service Contracts Schedule I - Certain Pending Transactions for which Purchaser may be Obligated to Pay a Seller fails Brokerage Commission Schedule J - Personal Property Schedule K - Operating Statements Schedule L - List of Existing Tenants for Estoppel Certificates Schedule M - Leasing Criteria Exhibit A - Assignment and Assumption of Leases and Security Deposits Exhibit B - Assignment and Assumption of Contracts Exhibit C - Form of Notice to Remedy after having elected Tenants Exhibit D - Tenant Estoppel Certificate Schedule A Legal Description of Premises ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of Brooklyn, County of Kings, City and State of New York, bounded and described as follows: BEGINNING at the corner formed by the intersection of the Southerly side of Nassau Street with the Easterly side of Xxx Street; THENCE RUNNING Easterly along the Southerly side of Xxxxxx Xxxxxx 000 feet 1 inch to do soland now or late of Xxxxx Xxxxxxx, Xx.; THENCE Southerly parallel with Xxx Street and along said land of Xxxxx Xxxxxxx Xx. 100 feet; THENCE Westerly parallel with Xxxxxx Xxxxxx 00 feet 4 inches; THENCE Northerly parallel with Xxx Street 6 feet; THENCE Westerly nearly parallel with Nassau Street and part of the distance through a party wall 84 feet 9 inches to a point on the Closing Date (as Easterly side of Xxx Street 93 feet 10 inches Southerly from the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates Southeasterly corner of Nassau and receive a return Xxx Street; THENCE Northerly along the Easterly side of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title Xxx Street 93 feet 10 inches to the Individual Property as it then is without any reduction incorner, abatement ofthe point or place of Beginning. Premises known as: 000-000 Xxxxxx Xxxxxx a/k/a 000-000 Xxx Street, or credit against the Brooklyn, NY. Xxxxx 000 Xxx 0 Xxxxxxxx X XXXXXXXX PRICE The Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails paid as follows:
(a) By check subject to timely make either such electioncollection or by wire transfer, Buyer shall be deemed the receipt of which is hereby acknowledged by Seller: $500,000.00 ------------
(b) By check, checks or wire transfer delivered to have elected option Seller at Closing in accordance with the provisions of Section 2.02: $10,000,000.00 -------------- -------------- Purchase Price $10,500,000.00 ============== Schedule D MISCELLANEOUS
1. Title insurer designated by the parties (1).ss.1.02):
5. Seller's tax identification number (ss.2.05):
6. Purchaser's tax identification number (ss.2.05):
7. Scheduled time and date of Closing (ss.3.01): [INSERT 47]
8. Place of Closing (ss.3.01): [INSERT 48]
9. Assessed valuation of Premises (ss.4.10): [INSERT 48A]
10. Fiscal year and annual real estate taxes on Premises (ss.4.10): $111,697.36
11. Tax abatements or exemptions affecting Premises (ss.4.10): None
12. Assessments on Premises (ss.4.13): None
Appears in 1 contract
Title Objections. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on On or before 5:00 p.m. Central Time on the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than date that is five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after from the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than last to be delivered to the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any Purchaser of the Title Objections raised in Buyer’s Commitment and Survey, the Purchaser shall give the Seller written notice (the “Title Objection Notice”) of any matters (other than Permitted Exceptions) identified on the Title Commitment or the Survey to which the Purchaser objects. Other In the event that any matters (other than the Permitted Exceptions) first appear as exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, the Title Commitment or any exception to title which Buyer does not raise pursuant to update thereof or new items first appear on the terms hereof on or before Survey after the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Purchaser delivers its Title Objection for any reason whatsoever does not do soNotice (each a “New Title Matter”, at or prior to and collectively, the Closing Date (as the same may be adjourned“New Title Matters”), Buyer may at its sole and exclusive option within the Purchaser shall have five (5) Business Days after obtaining actual knowledge of such New Title Matter(s) (but in any event prior to the Closing) to give the Seller a Seller fails to elect to Remedy written notice (a “New Title Objection orNotice”) of any such New Title Matter(s) (other than Permitted Exceptions) which has, with respect or would reasonably be expected to have, a material adverse effect on the Property and as to which the Purchaser objects. If, for any reason, in its sole and absolute discretion, the Seller is willing and able to take such actions as may be required to remedy such matters contained in the Title Objection Notice or any New Title Objection Notice, the Seller shall give the Purchaser notice thereof; it being understood and agreed that a the failure of the Seller fails to Remedy give such notice within three (3) Business Days after having elected receiving the Title Objection Notice or New Title Objection Notice (but in any event prior to do sothe Closing) shall be deemed an election by the Seller not to remedy any such matters. The Seller shall have up to thirty (30) days to remedy any such matters contained in the Title Objection Notice or any New Title Objection Notice if it so chooses, on and the Closing Date shall be automatically extended until the end of such period. If the Seller shall be unable or unwilling to remedy any matters as to which the Purchaser has objected, the Purchaser may elect (as A) to terminate this Agreement by written notice given within three (3) Business Days after receipt of the same may Seller’s notice (or deemed notice) that it is unable or unwilling to remedy such matters but in any event prior to the Closing, in which either event, the Deposit (less the Independent Consideration) shall be adjournedrefunded to the Purchaser and no party shall have any further rights or obligations hereunder, except for the Surviving Obligations, or (B) either to proceed to Closing, notwithstanding such matter, without any abatement or reduction in the Purchase Price on account thereof. Failure of the Purchaser to give timely notice of termination shall be deemed an election by the Purchaser to proceed in accordance with clause (B) above. Notwithstanding anything to the contrary contained herein and without the requirement that Purchaser object thereto, the Seller shall remove from record or cause the Title Company to remove from the Purchaser’s owner’s title insurance policy, or affirmatively insure over, (1) terminate this Agreement with respect all liens secured by any mortgage or deed of trust granted or assumed by the Seller and encumbering the Property (and all documents of record pertaining to such Individual Property loans made to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual PropertySeller), except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to any mechanic’s or materialmen’s lien arising out of any work at the Individual Property as it then is without performed by or on behalf of the Seller, (3) any reduction injudgment liens against Seller, abatement ofand (4) any delinquent taxes payable by Seller; provided, or credit against however, the Seller may use the Purchase Price and or any portion thereof to so remove such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)matters.
Appears in 1 contract
Title Objections. If (i) No later than ten (10) days prior to expiration of the Inspection Period, Purchaser shall notify Seller in writing of Purchaser’s objection to any revision exceptions or update other title matters shown on the Title Commitment or survey matters shown on the Survey of any Preliminary parcel of the Real Property (each, a “Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown Objection”). Seller shall notify Purchaser in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely writing (the foregoing, collectively, the “Title ObjectionsResponse”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates (“Buyer’s Objection Notice”): (a) on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objections, whether it will attempt to remove or resolve such Title Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant prior to the terms hereof on Closing Date, not being under any obligation to do so. Any matters Xxxxxx agrees to attempt to remove or before the resolve prior to Closing will become a condition to Closing. Failure to respond to any such Title Objection Cut Off Date shall be deemed a Permitted Encumbrance and an election by Seller not a to cure such Title Objection. If a Seller at elects not to remove or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a resolve any Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do sothen Purchaser shall have the option, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option remedy, upon written notice to Seller within five (5) Business Days after Purchaser’s receipt of the Title Response (or Seller’s deemed election upon expiration of such response period), to waive such Title Objection or to terminate this Agreement, whereupon the Deposit shall be returned to Purchaser and neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein. Any Title Objections that are waived hereunder shall be Permitted Encumbrances.
(ii) If any supplement to a Title Commitment or the survey discloses any additional title defects not shown on the original Title Commitment which were not created by or with the consent of Purchaser, Purchaser shall notify Seller fails in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) Business Days following receipt of such supplement or revision, but in no event later than the Closing Date. If any Additional Title Objection is not removed or resolved by Seller to elect Purchaser’s reasonable satisfaction prior to Remedy the Closing Date, then Purchaser shall have the option, as its sole remedy, either to waive such Additional Title Objection and proceed to Closing or to terminate this Agreement upon written notice to Seller on or before the Closing Date, and if terminated, the Deposit shall be returned to Purchaser and neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein. Any Title Objections that are waived hereunder shall be Permitted Encumbrances.
(iii) Purchaser’s failure to timely deliver a Title Objection or, with respect to or an Additional Title Objection within the applicable time period shall be deemed Purchaser’s acceptance of the matters disclosed by the Title Commitment and Survey. If Purchaser does not terminate this Agreement by reason of any Title Objection that a Seller fails to Remedy after having elected to do soor Additional Title Objection as provided in this Section, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which then such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions Additional Title Objection shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer waived and approved by Purchaser and shall thereafter be deemed to have elected option (1)Permitted Encumbrances. Notwithstanding the above, Seller shall cause the removal of any and all monetary liens, mechanics liens, judgments, delinquent property taxes and any other monetary encumbrances created by Seller that can be cured by the payment of money.
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Title Objections. If any revision or update During the Title and Survey Review Period, Purchaser shall review title to the Properties as disclosed by the Title Commitments and the Surveys and shall notify Seller in writing of any Preliminary objections which Purchaser may have to matters disclosed in the Title Report Commitments or in the Surveys prior to the expiration of the Title and Survey discloses exceptions Review Period (the “Title Objection Notice”). Seller shall have no obligation to title cure any matters raised in Purchaser’s Title Objection Notice other than Permitted Encumbrances shown judgment liens, mortgage liens, deed of trust liens, monetary liens affecting the Property created by Seller, mechanic’s liens arising from materials furnished to or work performed on the Properties by Seller, unpaid real estate taxes and assessments (other than liens for taxes and assessments not yet due and payable) (collectively, “Monetary Liens”). Seller shall cause all of such Monetary Liens to be released, discharged or endorsed or bonded over (provided that the same are removed as exceptions from the Title Policy or, if endorsed over, the form and content of the endorsement is acceptable to Purchaser, in Purchaser’s sole discretion) at or prior to Closing. If the Preliminary Title ReportCompany, or Survey received during after the Study expiration of the Inspection Period, issues any supplemental or amended Title Commitments adding any materially adverse title exceptions or materially adversely modifying title exceptions (other than Monetary Liens) or adding or modifying, in any materially adverse manner, the conditions to obtaining the Title Policy or any endorsement obtained by Seller solely to cure matters raised in an Objection Notice that would cause title Seller has elected to cure hereunder (individually an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property“Amended Commitment” and, or encumbers a Property materially and adversely (the foregoing, collectivelyif more than one, the “Title ObjectionsAmended Commitments”), Buyer shall so notify or the Seller surveyor, after the expiration of the particular Property Inspection Period, revises any of the Surveys to which such Title Objection relates disclose any material adverse matters not appearing on the Surveys previously delivered to Purchaser (individually a “Buyer’s Objection NoticeRevised Survey” and, if more than one, the “Revised Surveys”): (a) on or before the fifth (5th) Business Day after receipt ), Purchaser shall have a period of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior time equal to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date business days (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “RemedySupplemental Review Period”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after from the date of its receipt of any Amended Commitment or Revised Survey, as applicable (together with copies of or electronic access to any documentation underlying any new title exception), within which to deliver a written notice (the applicable Preliminary “Supplemental Objection Notice,” together with the Title Report in violation of this AgreementObjection Notice, (Cor each individually, as the context may imply, an “Objection Notice”) any and all liens arising by, through or under a to Seller and (D) Escrow Agent specifying its objections to any other Title Objection such new materially adverse exceptions, conditions or matters disclosed by the Amended Commitments or Revised Surveys that would cost are unacceptable to Purchaser. If Purchaser does not more than the foregoing *** ******* ******** ******* **********, in the aggregate, timely object to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any an exception to title which Buyer does not raise pursuant to the terms hereof on or before the other matter in an Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at Notice or prior to the Closing Date (Supplemental Objection Notice, as the same case may be extended) either (x) does not elect to Remedy a Title Objectionbe, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer matter shall be deemed to have elected option been approved by Purchaser and shall be deemed to be a Permitted Exception (1as hereinafter defined). Purchaser’s failure to timely provide an Objection Notice or a Supplemental Objection Notice, shall constitute an approval by Purchaser of all matters disclosed in the Title Commitments, the Surveys, any Amended Commitment or any Amended Survey, as the case may be.
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Samples: Purchase and Sale Agreement (Plymouth Industrial REIT Inc.)
Title Objections. If (i) Within seven (7) days after the Purchaser’s receipt of both a Title Commitment and Survey for the Properties, Purchaser shall notify Seller in writing of Purchaser’s objection to any revision exceptions or update other title matters shown on any Title Commitment or Survey. Purchaser’s title objections shall be limited to objections to the presence of any Preliminary Title Report or Survey discloses exceptions to title valid liens, claims, encumbrances, and/or security interests negatively affecting the Properties, other than Permitted Encumbrances shown in the Preliminary Cell Tower Lease (each, a “Title ReportObjection”). Ten days after receipt of the notice of Title Objections, Seller shall notify Purchaser whether it will attempt to cure the Title Objections and which, if not all, Title Objections it will attempt to cure. Based on Seller’s response, Purchaser may elect to (A) have Seller cure Title Objections prior to the Closing Deadline, (B) give Seller additional time to cure, and the parties may agree to delay Closing for the period of time necessary for Seller to attempt to cure, not to exceed 30 days beyond the original Closing Date, or Survey received during (C) no later than five (5) days prior to the Study PeriodClosing Date, that would cause title Purchaser may terminate the Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely survive such termination. If Purchaser elects option (the foregoing, collectively, the “Title Objections”A), Buyer and Seller has not cured Title Objections by Closing Date, Purchaser may terminate this Agreement; if Purchaser elects option (B), Seller shall so notify have the option to extend the Closing Date -- and the parties shall execute an amendment to this Agreement to that effect -- up to 30 days in order to cure such of those Title Objections Seller of has agreed to cure. If Seller is unable to cure those Title Objections it has agreed to cure within the particular Property agreed-upon time period, then Purchaser shall have the option, as its sole remedy, upon written notice to which such Title Objection relates (“Buyer’s Objection Notice”): (a) Seller on or before the fifth amended Closing Date, to terminate this Agreement, in which event neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination.
(5thii) Business Day If any supplement to a Title Commitment or the related Survey discloses any additional title defects which were not created by or with the consent of Purchaser, which arose after the date of the initial Title Objections, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) days following receipt of such supplement or revision. If any revision Additional Title Objection is not removed or update if received resolved by Buyer Seller to Purchaser’s satisfaction at least five (5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such in which event neither Purchaser nor Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured overany further duties or obligations under this Agreement, (ii) removed, or except as otherwise provided herein.
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitment and related Survey. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Additional Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, as provided in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy2.01, any exception to title which Buyer does not raise pursuant to the terms hereof on then such Title Objection or before the Additional Title Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election. If Purchaser terminates this Agreement by reason of any Title Objection or Additional Title Objection as provided in this Section 2.01, Buyer then the APA shall simultaneously terminate automatically, and Purchaser shall be deemed to have elected option (1)responsible for the payment of all Transaction Costs.
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Title Objections. (i) Within seven (7) days after the Purchaser’s receipt of both the Title Commitment and the Survey, Purchaser shall notify Seller in writing of Purchaser’s objection to any exceptions or other title matters shown on the Title Commitment or the Survey (each, a “Title Objection”). If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which such Title Objection relates is not removed or resolved by Seller to Purchaser’s satisfaction at least five (“Buyer’s Objection Notice”): (a5) days prior to the Closing Date, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, to terminate this Agreement, in which event the Xxxxxxx Money Deposit shall be promptly returned to Purchaser and neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such termination.
(bii) on or before one (1) Business Day prior If any supplement to the Closing Date if received Title Commitment or the Survey discloses any additional title defects which were not created by Buyer less than or with the consent of Purchaser, and which are not acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within five (5) Business Days before the Closing Date days following receipt of such supplement or revision. If any Additional Title Objection is not removed or resolved by Seller to Purchaser’s satisfaction at least five (but 5) days prior to the Closing Date) , then Purchaser shall have the option, as its sole remedy, to terminate this Agreement upon written notice to Seller on or (c) on before the Closing Date if Buyer becomes aware of same on Date, in which event the Closing Date (each Xxxxxxx Money Deposit shall be promptly returned to Purchaser and neither party will have any further obligations or liability hereunder, except for those obligations expressly stated to survive such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or termination.
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitment and the Survey. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, or incur any expenseas provided in this Section 2.01, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other then such Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s or Additional Title Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
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Title Objections. If any revision Within fifteen (15) days after receiving the later of the Title Commitment or update of any Preliminary the Survey, Buyer shall notify Seller if the Title Report Commitment or Survey discloses reveals any liens, encumbrances, claims or exceptions to title other than Permitted Encumbrances shown that, in the Preliminary Title ReportBuyer’s reasonable judgment, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely are unacceptable (the foregoing, collectively, the “Title Objections”). If Seller is unable or unwilling to cure any Title Objections, Seller will provide written notice thereof to Buyer within fifteen (15) days following receipt of notice of Title Objections from Buyer and Buyer shall so notify have the right, at its option, by written notice to Seller within fifteen (15) days following receipt of Seller’s written notice, either (i) to terminate this Agreement and obtain a refund of the particular Property Xxxxxxx Money and all interest thereon, whereafter both Parties shall be relieved and discharged of any rights, liabilities or obligations hereunder, or (ii) to which waive such Title Objection relates (“defect and proceed to Closing. Buyer’s Objection Notice”): failure to exercise the right to terminate within the said fifteen (a15) on or before day period shall constitute a waiver of Buyer’s right to terminate with respect to such title matters. However, if Seller elects to cure the fifth Title Objections (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior although Seller will have no such obligation to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”do so), time being Seller shall provide Buyer with notice of its intention to cure same within the essence. Such fifteen (15) days aforesaid and Seller shall have until an opportunity, at its expense, to remove such Title Objections within -47- TERMINAL SALE AND PURCHASE AGREEMENT (ARCADIA) EXECUTION VERSION sixty (60) days following receipt of written notice from Buyer identifying the Closing Date Title Objections (and may adjourn the Closing for such reasonable periods“Title Cure Period”). In no event shall Seller have any obligation to commence litigation or to incur costs in excess of One Thousand Dollars ($1,000.00) to have each such Title Objection (i) insured over, (ii) removed, cure or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate Objections. If Seller is unable to remove cure any Title Objections (except that each Seller shall be obligated to remove within the following “Mandatory Title Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********Period that, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any reasonable opinion of the Title Objections raised Company or Buyer, must be cured in Buyer’s Objection Notice. Other than the exceptions order to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance deliver good and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned)marketable title, Buyer may at may, as its sole and exclusive option remedy, and upon written notice to Seller within five fifteen (515) Business Days days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return expiration of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual PropertyTitle Cure Period, except for such obligations as are specifically stated in this Agreement to survive the termination of terminate this Agreement, or (2) elect to accept title to in which event the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions Xxxxxxx Money shall be deemed a Permitted Encumbrance; if Buyer fails fully refunded to timely make either such election, Buyer shall be deemed to have elected option (1)Buyer.
Appears in 1 contract
Samples: Terminal Sale and Purchase Agreement (Sunoco Logistics Partners Lp)
Title Objections. If Buyer shall disapprove any revision title or update of any Preliminary Title Report or Survey discloses exceptions survey matters which Buyer is permitted to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”)disapprove hereunder, Buyer shall so notify the Seller of the particular Property to which such give written notice thereof ("Title Objection relates (“Buyer’s Objection Notice”): (a") on or before to Seller within the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Datetime periods provided for in subparagraphs 4A(1) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”2), time being as applicable. Upon receipt by Seller of the essence. Such a Title Objection Notice given in a timely manner, then Seller shall have until the sooner to occur of (1) five (5) business days from receipt of such Title Objection Notice and (2) the Closing Date, within which to notify Buyer as to each properly disapproved matter either that (i) Seller elects not to cause such disapproved matter to be removed as of the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured overor otherwise take any action with respect thereto), or (ii) removedSeller intends to either (a) use commercially reasonable efforts to cause such disapproved matter to be removed on the Closing Date, or (iiib) corrected obtain a title endorsement (each as selected by a Seller, a “Remedy”if available) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below)insuring over such disapproved matter; provided, however, nothing herein Seller shall require a have no liability if for any reason, after electing under (ii) above, such additional disapproved matters are not removed or insured over as of the Closing Date. Failure to deliver any written notification by Seller of its election within such period shall be deemed to be an election not to cause any such additional disapproved matters to be removed. If Seller elects not to cause any or all such additional disapproved matters to be removed or insured over as aforesaid, Buyer shall have until the sooner to occur of (I1) bring five (5) business days from receipt of written notice thereof (or from the date of Seller's deemed election as aforesaid) and (2) the Closing Date, within which to notify Seller in writing either that (x) Buyer revokes its disapproval and will proceed with the purchase of the Property, subject to the satisfaction of any action or proceeding remaining conditions precedent to remove Buyer's obligation to close the transaction which is the subject of this Agreement, without any Title Objection reduction in the Purchase Price and will take subject to such matters, or (IIy) take Buyer terminates this Agreement (and thereupon the Escrow Deposit shall be delivered to Buyer). Failure to deliver any stepswritten notification by Buyer of its election within such period shall be deemed to be an election to terminate this Agreement. Notwithstanding anything to the contrary contained herein, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove cause the following “Mandatory Cure Items”: (A) the mortgages or removal of any exceptions evidencing any mortgages, deeds of trust identified on the Preliminary Title Report that are not or other loan documents securing any financing obtained or assumed by Buyer pursuant Seller and to Exhibit AA attached hereto, cause the removal (Bor to obtain title insurance over) any and all tax or judgment liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all mechanic's or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit materialmen's liens against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1)Property for work performed by or on behalf of Seller.
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Title Objections. If (i) Within three (3) days after the Purchaser’s receipt of both a Title Commitment and the related Survey for each Property, Purchaser shall notify Seller in writing of Purchaser’s reasonable objection to any revision material exceptions or update other material title matters shown on a Title Commitment or the related Survey (each, a “Title Objection”). If, within three (3) days after its receipt of any Preliminary notice of a Title Report or Survey discloses exceptions Objection, Seller does not, in its sole and absolute discretion, agree in writing to title other than Permitted Encumbrances shown in the Preliminary Title Report, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify the Seller of the particular Property to which remove such Title Objection relates (“Buyer’s Objection Notice”): (a) at and as a condition to the Closing, then Purchaser shall have the option, as its sole remedy, upon written notice to Seller on or before the fifth (5th) Business Day after receipt of any revision or update if received by Buyer on or before the fifth (5th) Business Day before the Closing Date, to (bA) on or before one (1) Business Day prior to terminate this Agreement, in which event the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such neither Purchaser nor Seller shall have until the Closing Date any further duties or obligations under this Agreement, except as otherwise provided herein; or (and may adjourn the Closing for such reasonable periodsB) to have each waive such Title Objection (i) insured overin which case such matter shall deemed to be a Permitted Exception), and proceed to close with respect to all of the Properties. If Seller provides notice to Purchaser of its agreement to cure any Title Objection as of Closing, the cure or resolution of any such Title Objection to Purchaser’s reasonable satisfaction at Closing shall be a condition precedent in favor of Purchaser to the Closing.
(ii) removedIf any supplement to a Title Commitment or the related Survey discloses any additional material title defects which were not created by or with the consent of Purchaser, and which are not reasonably acceptable to Purchaser, Purchaser shall notify Seller in writing of its objection thereto (each, an “Additional Title Objection”) within three (3) days following receipt of such supplement or revision. If, within three (3) days after its receipt of any notice of Additional Title Objection, Seller does not, it its sole and absolute discretion, agree in writing to remove any such Additional Title Objection at and as a condition to Closing, then Purchaser shall have the option, as its sole remedy, to (A) terminate this Agreement upon written notice to Seller on or before the Closing Date, in which event neither Purchaser nor Seller shall have any further duties or obligations under this Agreement, except as otherwise provided herein; or (B) waive such Additional Title Objection (in which case such matter shall deemed to be a Permitted Exception, and proceed to close with respect to all of the Properties. If Seller provides notice to Purchaser of its agreement to cure any Additional Title Objection as of Closing, the cure or resolution of any such Additional Title Objection to Purchaser’s reasonable satisfaction at Closing shall be a condition precedent in favor of Purchaser to the Closing.
(iii) corrected (each as selected Purchaser’s failure to timely deliver a Title Objection or an Additional Title Objection shall be deemed Purchaser’s acceptance of the matters disclosed by a Seller, a “Remedy”) (in the case Title Commitment and related Survey. If Purchaser does not terminate this Agreement by reason of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any stepsAdditional Title Objection, or incur any expenseas provided in this Section 2.01, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other then such Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s or Additional Title Objection Notice whether such Seller elects to endeavor to Remedy all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance waived and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole approved by Purchaser and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1) terminate this Agreement with respect to such Individual Property to which such Title Objection relates and receive a return of the portion of the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall thereafter be deemed a Permitted Encumbrance; if Buyer fails to timely make either such election, Buyer shall be deemed to have elected option (1).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Corinthian Colleges Inc)
Title Objections. If any revision or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in (a) During the Preliminary Title Report, or Survey received during the Study Due Diligence Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely (the foregoing, collectively, the “Title Objections”), Buyer shall so notify review title to the Seller Property as disclosed by the Title Commitment and the Survey. Prior to the expiration of the particular Property to which such Title Objection relates Due Diligence Period or within three (“Buyer’s Objection Notice”): (a) on or before the fifth (5th3) Business Day Days after the receipt of any supplement or modification to the Title Commitment, but in no event prior to the expiration of the Due Diligence Period, Buyer shall deliver to Seller written notice of any items shown on the Title Commitment and/or the Survey of which Buyer disapproves (individually "BUYER DISAPPROVED EXCEPTION" and collectively, "BUYER'S DISAPPROVED EXCEPTIONS"). Buyer may not disapprove of the standard printed exceptions in the Title Commitment pursuant to this Section. If Buyer does not deliver the aforementioned written notice prior to the expiration of the time provided, Buyer shall be deemed to have disapproved of all matters shown on the Title Commitment and the Survey. Seller shall have three (3) Business Days after receipt of any revision the aforementioned Buyer's notice, or update deemed notice, to notify Buyer in writing which, if received by Buyer on any, of Buyer's Disapproved Exceptions Seller elects to cure or before the fifth (5th) Business Day before the Closing Date, (b) on or before one (1) Business Day bond over prior to the Closing Date if received by Closing. If Seller does not notify Buyer less than five (5) Business Days before the Closing Date (but prior to the Closing Date) or (c) on the Closing Date if Buyer becomes aware of same on the Closing Date (each such datein a timely fashion, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) be deemed to have each such Title Objection (i) insured over, (ii) removed, elected not to cure or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction bond over any of Buyer's Disapproved Exceptions. Seller shall not be obligated to so cure or bond over Buyer's Disapproved Exceptions, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each for monetary liens which Seller shall be obligated to remove at or before the following “Mandatory Cure Items”: (A) Closing. Seller shall not be required to expend any effort or funds, or to commence litigation to cure a Buyer Disapproved Exception, except for monetary liens, which Seller shall be obligated to remove at or before the mortgages Closing. Seller further agrees to remove any exceptions or deeds of trust identified on the Preliminary Title Report encumbrances to title that are not assumed created by Buyer pursuant to Exhibit AA attached heretoSeller after April 11, 2002, without Buyer's prior written consent.
(Bb) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such If Seller elects to endeavor cure, but is unable to Remedy cure any or all or any of the Title Objections raised in Buyer’s Objection Notice. Other than the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller 's Disapproved Exceptions at or prior to the Closing Date expiration of the Due Diligence Period, the Buyer may (as the same may be extendedi) either (x) does not elect to Remedy a Title Objection, waive such uncured title matter in writing; or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned), Buyer may at its sole and exclusive option within five (5) Business Days after a Seller fails to elect to Remedy a Title Objection or, with respect to any Title Objection that a Seller fails to Remedy after having elected to do so, on the Closing Date (as the same may be adjourned) either (1ii) terminate this Agreement in which event Buyer shall, as its sole remedy, receive a refund of the Xxxxxxx Money and recover its verified out-of-pocket expenses.
(c) If Seller elects to cure none, or some, but not all, of Buyer's Disapproved Exceptions, Buyer shall have three (3) Business Days to provide Seller with respect written notice of Buyer's election, as its sole remedy, to such Individual Property either waive its disapproval of the Buyer Disapproved Exceptions which Seller has elected not to which such Title Objection relates cure, or terminate this Agreement and receive a return refund of the portion of Xxxxxxx Money. If Buyer does not provide Seller with written notice as set forth in the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such Seller shall not have any further liability or obligation to Buyer hereunder nor shall Buyer have any further liability or obligation to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions shall be deemed a Permitted Encumbrance; if Buyer fails to timely make either such electionpreceding sentence, Buyer shall be deemed to have elected option to terminate this Agreement and shall receive a refund of the Xxxxxxx Money.
(1d) If the Title Company revises the Title Commitment after the expiration of the Due Diligence Period to add or modify exceptions, and if such additions or modifications are not acceptable to Buyer, in Buyer's sole and absolute discretion, and are not removed on or before the Closing, Buyer may, as its sole remedy, terminate this Agreement by written notice to Seller and the Title Company, and the Xxxxxxx Money shall be refunded to Buyer. From and after the April 11, 2002, Seller shall not place or consent to any liens or easements against the Property or take any action to alter the condition of title to the Property without first obtaining Buyer's written consent, which may be withheld in Buyer's sole and absolute discretion.
(e) The standard printed exceptions in the Title Commitment, the Lease, and all matters shown on the Title Commitment, as well as any additional matters not shown by the Title Commitment and which are not Buyer's Disapproved Exceptions that the Seller is not required to cure or bond over at or prior to the Closing pursuant to this Section 6.2, and items shown on the Survey which have not been removed as of the end of the Due Diligence Period or which Seller is not required to remove as provided above, shall constitute and are herein called "PERMITTED EXCEPTIONS".
(f) Any other term of this Agreement notwithstanding, following the expiration of the Due Diligence Period, Seller shall be deemed to have waived all objections to all exceptions and matters shown on the Title Commitment and/or the Survey, whether or not previously designated as or deemed by this Agreement to be Buyer's Disapproved Exception(s), all of which shall also be deemed Permitted Exceptions.
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Title Objections. If any revision On or update of any Preliminary Title Report or Survey discloses exceptions to title other than Permitted Encumbrances shown in the Preliminary Title Reportbefore June 23, or Survey received during the Study Period, that would cause title to an Individual Property to be uninsurable or would render title unmarketable or constitute a monetary lien or judgment on a Property, or encumbers a Property materially and adversely 2011 (the foregoing, collectively, the “Title ObjectionsObjection Period”), Buyer shall so notify the Seller of any items in the particular Property Title Commitment and/or Survey (other than those items identified in Sections 3(b)(i) through 3(b)(vii)) which are unsatisfactory to which such Title Objection relates (“Buyer in Buyer’s Objection Noticesole and absolute discretion (the “Objections”): (a) on or before ). Except to the fifth (5th) Business Day after receipt extent that Buyer timely notifies Seller of any revision Objections in accordance with the foregoing, any exceptions to title that are shown in Schedule B of the Title Commitment or update if received on the Survey (other than Mandatory Cure Liens) shall be deemed to have been approved by Buyer on and shall be Permitted Exceptions for all purposes of this Agreement. Buyer shall have the right to have one or before more updates prepared of the fifth (5th) Business Day before Title Commitment and/or the Closing DateSurvey from time to time, (b) on or before one (1) Business Day prior to the Closing Date if received by Buyer less than five (5) Business Days before the Closing Date (but at Buyer’s sole cost and expense. If, prior to the Closing Date) , additional title exceptions that were not previously reported in the Title Commitment or (c) shown on the Closing Date if Buyer becomes aware of same Survey are shown on the Closing Date (each such date, the “Objection Cut Off Date”), time being of the essence. Such Seller shall have until the Closing Date (and may adjourn the Closing for such reasonable periods) to have each such Title Objection (i) insured over, (ii) removed, or (iii) corrected (each as selected by a Seller, a “Remedy”) (in the case of (i) or (iii), to the reasonable satisfaction of Buyer, but subject to Section 3.4 below); provided, however, nothing herein shall require a Seller to (I) bring any action or proceeding to remove any Title Objection or (II) take any steps, or incur any expense, in excess of *** ******* ******** ******* ********** in the aggregate to remove any Title Objections (except that each Seller shall be obligated to remove the following “Mandatory Cure Items”: (A) the mortgages or deeds of trust identified on the Preliminary Title Report that are not assumed by Buyer pursuant to Exhibit AA attached hereto, (B) any and all liens voluntarily placed by a Seller against its Property after the date of the applicable Preliminary Title Report in violation of this Agreement, (C) any and all liens arising by, through or under a Seller and (D) any other Title Objection that would cost not more than the foregoing *** ******* ******** ******* **********, in the aggregate, to remove). Each Seller agrees to notify Buyer within five (5) Business Days of such Seller’s receipt of Buyer’s Objection Notice whether such Seller elects to endeavor to Remedy all or any an update of the Title Objections raised in Buyer’s Objection Notice. Other than Commitment or the exceptions to title which each Seller is required pursuant to this Section 3.3 to Remedy, any exception to title which Buyer does not raise pursuant to the terms hereof on or before the Objection Cut Off Date shall be deemed a Permitted Encumbrance and not a Title Objection. If a Seller at or prior to the Closing Date (as the same may be extended) either (x) does not elect to Remedy a Title Objection, or (y) having elected to Remedy a Title Objection for any reason whatsoever does not do so, at or prior to the Closing Date (as the same may be adjourned)Survey, Buyer may at its sole and exclusive option will notify Seller, within five (5) Business Days after a Seller fails Buyer shall have received such update to elect to Remedy a the Title Objection orCommitment and/or Survey, with respect to any Title Objection that a Seller fails to Remedy after having elected to do soas the case may be, on or by the Closing Date (whichever is sooner) (the “New Objection Period”), of any Objections that Buyer may have to such additional title exceptions. To the extent Buyer fails to notify Seller within the New Objection Period of any Objections, all such matters (other than Mandatory Cure Liens) set forth in the applicable update of the Title Commitment or on the applicable update of the Survey shall be deemed Permitted Exceptions. Seller may, but, except as otherwise expressly provided herein, shall not be obligated to, elect to cure any or all of such Objections, to Buyer’s and the same may Title Company’s reasonable satisfaction. Seller shall give notice to Buyer on or before the expiration of ten (10) Business Days following the date of Buyer’s timely delivery to Seller of notice of any such Objection as aforesaid (and if such period extends past the Closing Date, the Closing Date shall be adjournedautomatically extended to allow for such ten (10) either Business Day period) stating whether Seller agrees to cure such Objection prior to the Closing or such extension thereof, if applicable (1the “Seller’s Response Period”). If Seller timely elects to cure such Objection, Seller shall, prior to the Closing Date (provided that Seller shall have the right to extend the Closing Date by not more than thirty (30) terminate days in the aggregate if reasonably necessary to accomplish the cure of any one or more Objections hereunder by providing written notice to Buyer thereof at least five (5) Business Days prior to the then scheduled Closing Date), diligently prosecute such cure to completion. If Seller fails timely to give such notice as aforesaid, then Seller shall be conclusively deemed to have elected not to cure such Objection. If Seller elects (or is deemed to have elected) not to cure any such Objection, then this Agreement with respect shall terminate and Buyer shall be entitled to such Individual Property to which such Title Objection relates and receive a return of the portion of Initial Deposit and any Additional Deposit, if any has been made by Buyer, (together with any interest accrued thereon), unless Buyer waives such Objection, in writing, within five (5) Business Days after the Deposit relating to such Individual Property as shown on Schedule 2.1(a) (and the applicable Seller and Buyer shall jointly instruct Escrow Holder to promptly return such portion of the Deposit to Buyer) and such date upon which Seller shall have elected (or shall be deemed to have elected) not have any further liability or obligation to Buyer hereunder nor cure such Objection, as aforesaid, in which event, the purchase and sale contemplated hereby shall Buyer have any further liability or obligation close as scheduled with no adjustment to such Seller hereunder with respect to that Individual Property, except for such obligations as are specifically stated in this Agreement to survive the termination of this Agreement, or (2) elect to accept title to the Individual Property as it then is without any reduction in, abatement of, or credit against the Purchase Price and such exceptions waived Objections shall become Permitted Exceptions for all purposes under this Agreement. Notwithstanding the foregoing, Seller shall, on or prior to the Closing Date (or such extension thereof, if applicable), pay, discharge or cause to be deemed paid or discharged, and deliver the appropriate documents to the Title Company, to cause the Title Company to remove of record, at Seller’s sole cost and expense, any monetary liens or encumbrances (i) that Seller has caused to be placed on the Property or arise out of the acts of Seller or (ii) that constitute any mortgage or deed of trust liens, construction or mechanics’ liens, tax liens or other liens or charges in a Permitted Encumbrance; fixed sum created or arising by, through or under Seller or capable of computation as a fixed sum that encumber the Land or Improvements (such actions shall include obtaining a pay-off letter and leaving a portion of the Purchase Price in escrow to satisfy such monetary liens) ((i) and (ii) collectively, “Mandatory Cure Liens”). Notwithstanding the foregoing, if Seller elects not to pay, discharge or cause to be paid or discharged any such mechanics’ liens, tax liens or other liens or charges as set forth above because there exists a good faith dispute as to the existence and/or amount of any such lien(s), the Seller may cause the Title Company to insure over any such lien in a manner reasonably acceptable to Buyer fails and Title Company until such time as the dispute can be resolved and such action by Seller shall have the same force and effect as causing any such lien to timely make either such electionbe paid or discharged and shall constitute full satisfaction of the obligations of Seller hereunder, provided that the same does not result in any additional cost or liability (whether fixed, contingent or otherwise) to Buyer shall be deemed to have elected option (1)or the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Chesapeake Lodging Trust)
