Title Review. a. At Closing, Ohlone College shall ground lease the Property to SteelWave as will enable the Title Company to issue to SteelWave, a 2006 ALTA extended coverage Owner’s Policy of Title Insurance, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request (the “ALTA Policy”), subject only to the “Permitted Exceptions” (as hereinafter defined), and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave and Ohlone College as provided in this Agreement) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Period, an ALTA survey sufficient for Title Company to issue the ALTA Policy. Within five (5) days following the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing of the Property to SteelWave under this Agreement (the "Preliminary Report", which together with each exception document referred to therein are collectively referred to herein as, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased subject to the following matters, which shall be deemed to be “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof. b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy. c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed in a Preliminary Report Update prior to the expiration of the Preliminary Report Update Review Period, as applicable, SteelWave shall be deemed to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's written notice thereof to (A) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3.
Appears in 1 contract
Samples: Ground Lease Agreement
Title Review. a. At Closing(a) Buyer has until 5:00 pm (Dallas, Ohlone College shall ground lease Texas time) on the Property to SteelWave as will enable Effective Date or until 10 days after its receipt of the Commitment and Title Exceptions, whichever is later (the Title Company Review Period), to issue give Seller a notice objecting to SteelWave, a 2006 ALTA extended coverage Owner’s Policy of Title Insurance, with leasehold owner endorsement and any exception or encumbrance contained in the Commitment or shown on the existing survey referenced on such other endorsements thereto as SteelWave may request Schedule 1 (the “ALTA Policy”Survey). If Buyer does not give notice of any objections to Seller within the Title Review Period, subject only then Buyer is deemed to approve the “Permitted Exceptions” (title as hereinafter defined)shown in the Commitment, the title exceptions, and SteelWave’s matters shown on the Survey. If Buyer provides timely objections, then Seller shall have 7 days after receipt of a title commitment from Buyer's notice (the Title Company prior Cure Period) in which it may attempt or agree to cure Buyer's objections; provided, however, Seller has no obligation to cure or agree to cure any of Buyer's objections.
(b) If Buyer provides timely objections as contemplated above and Seller does not cure or agree to cure all of Buyer's objections within the Title Cure Period for any reason, then within 5 days after the last day of the Title Cure Period but in no event later than the last day of the Due Diligence Expiration Date Period (the Election Period), Buyer shall, as its sole and exclusive remedy, waiving all other remedies, either: (i) terminate this Contract by giving a termination notice to issue Seller within the Title Policy Election Period, in which case the parties will have no further rights, liabilities, or obligations under this Contract (other than those that expressly survive termination); or (ii) waive the uncured objections and be deemed to approve Seller's title as of shown in the Closing in such form (subject to Title Company’s receipt of payment for such Title PolicyCommitment, the cost title exception documents, and the Survey. If Seller does not receive notice of which shall be allocated between SteelWave and Ohlone College as provided in Buyer's election to terminate under this AgreementSection 3.1(b) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Election Period, an ALTA survey sufficient for Title Company then Buyer is deemed to issue have provided its waiver and approval in accordance with clause (ii) immediately above. If Buyer terminates this Contract under clause (i) where authorized herein and such election is based upon Buyer’s timely objection to (and Seller’s failure to cure or agree to cure) one or more encumbrances on the ALTA Policy. Within five (5) days following Real Property that are reasonably anticipated to have a material adverse effect on the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing marketability of the Property (a Material Encumbrance), then upon such termination, Closing Agent shall return all of the Exxxxxx Money to SteelWave under this Agreement (Buyer. However, if such a termination occurs on the "Preliminary Report"basis of Seller’s failure to cure or agree to cure one or more objections that do not pertain to a Material Encumbrance, which together with each exception document referred then upon such termination, Closing Agent shall deliver to therein are collectively referred to herein asSeller the Released Funds as defined below, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property and Seller shall be ground leased subject irrevocably and unconditionally entitled to same, and Closing Agent shall return the following matters, which shall be deemed to be “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as remainder of the date of Closing, subject Exxxxxx Money to adjustment as herein provided, if any; Buyer.
(2c) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become The Permitted Exceptions pursuant to are all matters disclosed by the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title DocumentsCommitment, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from titletitle exception documents, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to Survey: (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, Buyer does not timely object or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice which Buyer does timely object but which Seller does not cure or agree to cure in writing within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Cure Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed in a Preliminary Report Update prior to the expiration of the Preliminary Report Update Review Period, as applicable, SteelWave shall be deemed to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's written notice thereof to (A) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3.
Appears in 1 contract
Samples: Contract of Sale (Behringer Harvard Opportunity REIT I, Inc.)
Title Review. a. At Closing, Ohlone College shall ground lease the Property to SteelWave as will enable the Title Company to issue to SteelWave, a 2006 ALTA extended coverage Owner’s Policy of Title Insurance, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request (the “ALTA Policy”), subject only to the “Permitted Exceptions” a) Not later than that date which is three (as hereinafter defined), and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave and Ohlone College as provided in this Agreement3) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, Business Days prior to the expiration of the Due Diligence PeriodEvaluation Period (the "Title Objection Date"), Purchaser may provide Seller with a copy of a title insurance commitment (the "Title Commitment") issued by Escrow Agent and an ALTA updated survey sufficient for of the Real Property and Improvements, together with a written notice objecting to any exceptions, encumbrances or other matters set forth in the Title Company Commitment or on the updated survey (any such defects, encumbrances or other matters to issue which Purchaser objects in writing prior to the ALTA PolicyTitle Objection Date are called herein "Title Defects"). Within (For the avoidance of doubt, all matters shown on the Existing Survey are conclusively deemed to be acceptable to Purchaser.) In the event Seller does not receive written notice of any Title Defects by the Title Objection Date, TIME BEING OF THE ESSENCE, then Purchaser will be deemed to have accepted the exceptions to title set forth on the Title Commitment and all matters set forth on the updated survey as permitted exceptions ("Permitted Exceptions"). In addition, Purchaser agrees that, at Closing, title to the Property shall be subject to a certain Amendment to Amended and Restated Cross-Easement Agreement, between Seller and The GC Net Lease (Parsippany) Investors, LLC, with respect to a certain Amended and Restated Cross-Easement Agreement, dated February 28, 2014, and recorded in the Somerset County Clerk’s Office on March 11, 2014 in Book 22503, Page 1144 (the "Cross-Easement Agreement"), such Amendment to be in the form annexed hereto and made a part hereof as Exhibit F (the "Cross-Easement Amendment").
(b) After the Title Objection Date, if the Escrow Agent raises any new exception to title to the Real Property, Purchaser’s counsel shall have five (5) days following the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies Business Days after he or she receives notice of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing of the Property to SteelWave under this Agreement such exception (the "Preliminary ReportNew Objection Date") to provide Seller with written notice if Purchaser objects to such new exception, in which event such new exception shall constitute a Title Defect and the Scheduled Closing Date shall be extended as necessary to afford Seller and Purchaser the consideration and response periods contemplated by Section 6.3(a) and as otherwise contemplated therein. In the event Seller does not receive notice of such new exception by the New Objection Date, TIME BEING OF THE ESSENCE, Purchaser will be deemed to have accepted the new exception as a Permitted Exception.
(c) All taxes, water rates or charges, sewer rents and assessments, plus interest and penalties thereon, which together with each exception document referred on the Closing Date are liens against the Real Property and which Seller is obligated to therein are collectively referred to herein as, pay and discharge will be credited against the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased Purchase Price (subject to the following mattersprovision for apportionment of taxes, which water rates and sewer rents herein contained) and shall not be deemed a Title Defect. In addition, inasmuch as the payment of such items is the Tenant’s responsibility, and such items constitute additional rent under the Lease, after the Closing such sums shall be deemed treated as Delinquent Rental pursuant to Section 10.4 below. If on the Closing Date there shall be “Permitted Exceptions”: security interests filed against the Real Property, such items shall not be Title Defects if (1i) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of personal property covered by such security interests is no longer in or on the date of ClosingReal Property, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3ii) such state of facts as may be shown on personal property is owned or leased by the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from titleTenant, or (Biii) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or security interest was filed more than five (5) year prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which was not renewed.
(d) If on the Closing Date the Real Property shall be acceptable affected by any lien which Seller has elected to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A)attempt to remove or is otherwise obligated to remove pursuant to the express provisions of this Agreement, SteelWave may elect on then Seller shall not be required to discharge or before satisfy the expiration same of record provided that Escrow Agent either omits the lien as an exception from the Title Commitment or insures against collection thereof from out of the Due Diligence Period by providing written notice to Ohlone College to (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A)Real Property, and SteelWave fails a credit is given to give Ohlone College notice Purchaser for the recording charges for a satisfaction or discharge of its election on such lien.
(e) No franchise, transfer, inheritance, income, corporate or before the expiration other tax open, levied or imposed against Seller or any former owner of the Due Diligence PeriodProperty, then SteelWave shall that may be deemed to have elected to waive such objection and to proceed with the leasing of a lien against the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to on the Closing Date, then SteelWave shall be entitled an objection to pursue its remedies hereundertitle if the Escrow Agent insures against collection thereof from or out of the Real Property and/or the Improvements, and if SteelWave elects to terminate this Agreement, then neither party shall have any provided further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause that Seller deposits with the Escrow Holder Agent a sum of money or a parental guaranty reasonably sufficient to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt secure a release of the Title Documents (eachProperty from the lien thereof. If a search of title discloses judgments, a "Preliminary Report Update")bankruptcies, SteelWave or other returns against other persons having names the same as or similar to that of Seller, Seller will deliver to Purchaser an affidavit stating that such judgments, bankruptcies or other returns do not apply to Seller, and such search results shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed in a Preliminary Report Update prior to the expiration of the Preliminary Report Update Review Period, as applicable, SteelWave shall not be deemed to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's written notice thereof to (A) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3Title Defects.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Griffin Capital Essential Asset REIT II, Inc.)
Title Review. a. At Closing As of the Execution Date, Ohlone College shall ground lease Owner has delivered to Developer a copy of the Property to SteelWave as will enable most recent title commitment from the Title Company to issue to SteelWavefor a standard form of leasehold title insurance policy covering the Real Property, a 2006 ALTA extended coverage Owner’s Policy of Title Insuranceunder Order Xx. XXX-000000-XX0 dated July 20, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request 2016 (the “ALTA PolicyTitle Commitment”), subject only and Developer hereby acknowledges receipt of the Title Commitment. The Title Commitment sets forth the state of title to the “Permitted Exceptions” (as hereinafter defined)Real Property, including a list of conditions or exceptions to title affecting the Real Property that would appear in a standard form leasehold policy of title insurance, if one were issued. Title Company has also furnished to Developer, and SteelWave’s Developer acknowledges receipt of, legible copies of a instruments or documents (the “Exception Documents”) that create or evidence conditions or exceptions to title commitment from affecting the Real Property, as described in the Title Company prior Commitment. Owner will order an update to the Due Diligence Expiration Date to issue the Title Policy as of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave Commitment and Ohlone College as provided in this Agreement) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Period, an ALTA survey sufficient for Title Company to issue the ALTA Policy. Within Exception Documents within five (5) days following the Effective Execution Date, Ohlone College . Developer shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty have until thirty (2030) days prior after the Execution Date (the “Title Objection Period”) in which to notify Owner in writing (the Effective Date, together with complete copies “Title Objection Notice”) of all underlying documents relating any objections Developer has to title exceptions any matters shown or referred to thereinin the Title Commitment or the Exception Documents. Any title encumbrances, issued exceptions or other matters which are set forth in connection with the leasing of Title Commitment or the Property Exception Documents, and to SteelWave under this Agreement (which Developer does not object within the "Preliminary Report"Title Objection Period, which together with each exception document referred to therein are collectively referred to herein as, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased subject to the following matters, which shall be deemed to be permitted exceptions to the status of Owner’s title (such encumbrances, exceptions or other matters, together with the pre-printed exceptions contained in the standard form of leasehold title policy that the Title Company will not delete after delivery of the owner’s affidavit referred to in Section 4 shall be referred to as the “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within Within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (eachOwner receives Developer’s Title Objection Notice, a "Preliminary Report Update Review Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed in a Preliminary Report Update prior to the expiration of the Preliminary Report Update Review Period, as applicable, SteelWave Owner shall be deemed to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's deliver written notice thereof to (A) give SteelWave notice that Ohlone College electsDeveloper stating which, in its sole and absolute discretionif any, not to cause such disapproved exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior to the Closing Date or arrange, at SteelWaveof Developer’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with Owner shall cure or attempt to cure prior to Ground Lease Execution. If Owner is unable or unwilling to cure any of Developer’s objections to title, then Developer may, at its option, either (a) accept the Closing without offset matters which Owner is unable or credit against the Rentunwilling to cure, in which case all such disapproved exceptions objections shall become thereafter be deemed Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3.or
Appears in 1 contract
Samples: Development Agreement
Title Review. a. At ClosingBuyer shall have the right to make objections (“Title Objections”) to any Exception or any reservation, Ohlone College shall ground lease easement, covenant, exception, limitation, restriction or other defect shown on the Property Updated Survey or reflected in the Title Commitment, such Title Objections to SteelWave as will enable be made in writing and delivered to Sellers, the Title Company and Surveyor within ten (10) days following the latter of Buyer’s receipt of the Title Commitments, the documents reflecting Exceptions, or the Updated Survey. Sellers shall have the right, but not the obligation, to issue cure (or cause to SteelWavebe cured, a 2006 ALTA extended coverage Owner’s Policy including by way of express title insurance or its equivalent) any Exceptions constituting Title InsuranceObjections, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request cure to be effected not later than 5 Business Days prior to the Closing Date (the “ALTA PolicyCure Period”); provided, subject only however, that in the event a mortgage, deed of trust or other similar monetary lien secured by the Real Estate and placed on the Real Estate by or at the request of a Seller or an Affiliate of a Seller (collectively a “Mortgage Lien”) affects all or any portion of the Sellers’ interest in the Real Estate, on or before Closing, Sellers shall cause all such Mortgage Liens to be satisfied in a manner which is sufficient to cause them to no longer affect title to the “Permitted Exceptions” (as hereinafter defined)Real Estate, and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which Real Estate shall be allocated between SteelWave conveyed free and Ohlone College as provided clear of all such Mortgage Liens, and such Mortgage Liens shall in this Agreement) shall no event constitute, or be deemed to constitute, a condition precedent Permitted Lien. If Sellers elect not to, fail, or are unable for any other reason to SteelWave’s obligation to enter into cure any Exceptions constituting Title Objections during the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Cure Period, an ALTA survey sufficient for Title Company to issue Buyer shall have the ALTA Policy. Within right, within five (5) days following the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing of the Property to SteelWave under this Agreement (the "Preliminary Report", which together with each exception document referred to therein are collectively referred to herein as, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased subject to the following matters, which shall be deemed to be “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Cure Period by providing written notice and as Buyer’s sole and exclusive remedy in such event, to Ohlone College to either (i) waive in writing its objections Title Objections with respect to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, or (ii) terminate this AgreementAgreement by written notice to Sellers, it being understood that the scheduled Closing Date shall be extended by five (5) days (or the lesser number of days until Buyer waives the Title Objections, if applicable) to accommodate Buyer’s election. If Ohlone College Buyer fails to give SteelWave notice terminate this Agreement in accordance with clause (ii) of the immediately preceding sentence within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptionsthe required time period or otherwise consummates the Closing, then Ohlone College Buyer shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A)waived all Title Objections which have not, as of such time, been cured, and SteelWave fails to give Ohlone College notice of its election on or before all Exceptions forming the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive basis for such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions uncured Title Objections shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA PolicyLiens.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed in a Preliminary Report Update prior to the expiration of the Preliminary Report Update Review Period, as applicable, SteelWave shall be deemed to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's written notice thereof to (A) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3.
Appears in 1 contract
Title Review. a. At Closing, Ohlone College Purchaser shall ground lease have until the Property to SteelWave as will enable the Title Company to issue to SteelWave, a 2006 ALTA extended coverage Owner’s Policy of Title Insurance, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request (the “ALTA Policy”), subject only to the “Permitted Exceptions” (as hereinafter defined), and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as end of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave and Ohlone College as provided in this Agreement) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Period, an ALTA survey sufficient for Title Company to issue the ALTA Policy. Within five (5) days following the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing of the Property to SteelWave under this Agreement Review Period (the "Preliminary Report", which together with each exception document referred to therein are collectively referred to herein as, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased subject to the following matters, which shall be deemed to be “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"), to give Seller a detailed notice objecting to any exception or condition contained in the Title Commitment or shown on the Existing Survey, or the Updated Survey, if any. Should SteelWave fail to notify Ohlone College in writing If Purchaser does not give notice of any objections to any matter first disclosed in a Preliminary Report Update prior to Seller within the expiration of the Preliminary Report Update Title Review Period, as applicable, SteelWave Purchaser shall be deemed to have approved such matters which shall then be considered Permitted Exceptions the title as defined above. Ifshown in the Title Commitment, however, SteelWave objects to any such new the title exceptions, Ohlone College and all matters shown on the Updated Survey. If Purchaser provides timely objections, Seller shall have four five (45) business days after receipt of SteelWavePurchaser's written notice thereof (the "Title Cure Period") in which to (Acure or attempt to cure Purchaser's objections; provided, however that Seller shall not have any obligation to cure any of Purchaser's objections. Seller may bond around any mechanics' or materialmen's lien(s) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (Babstract(s) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior of judgment to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptionsTitle Company's reasonable satisfaction. If Ohlone College gives SteelWave notice under clause (A)Purchaser provides timely objections and all of Purchaser's objections are not cured within the Title Cure Period for any reason, SteelWave may elect on or before then, within five (5) business days after SteelWave's receipt the last day of Ohlone College's notice to the Title Cure Period, Purchaser shall, as its sole and exclusive remedy, waiving all other remedies, either: (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (iia) terminate this Agreement. If Ohlone College fails Agreement by giving a termination notice to give SteelWave notice within four Seller, at which time Escrowee shall return the Xxxxxxx Money to Purchaser and the parties shall have no further rights, liabilities, or obligations under this Agreement (4other than those that expressly survive termination); or (b) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall waive the uncured objections by proceeding to Closing and thereby be deemed to have elected to give SteelWave notice under clause (A)approved the Purchaser's title as shown in the Title Commitment, the title exception documents, and the Existing Survey and Updated Survey, if any. If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College Seller does not timely receive notice of its Purchaser's election on or before the expiration of the five (5) business day period referenced aboveto terminate under this Section 3.3, then SteelWave shall Purchaser will be deemed to have elected to waive any such waived the uncured objections and to proceed with approve the purchase without offset Purchaser's title as shown in the Commitment, the title exception documents, and the Updated Survey. All exceptions shown on the Title Commitment, the title exception documents, or credit against the Purchase Price, in which case any disapproved exceptions Updated Survey that are not cured within the Title Cure Period shall become be the "Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3".
Appears in 1 contract
Samples: Real Estate Sale Agreement (Boston Capital Real Estate Investment Trust Inc)
Title Review. a. At Closing, Ohlone College Purchaser shall ground lease have until the Property to SteelWave as will enable the Title Company to issue to SteelWave, a 2006 ALTA extended coverage Owner’s Policy of Title Insurance, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request (the “ALTA Policy”), subject only to the “Permitted Exceptions” (as hereinafter defined), and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as end of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave and Ohlone College as provided in this Agreement) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Period, an ALTA survey sufficient for Title Company to issue the ALTA Policy. Within five (5) days following the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing of the Property to SteelWave under this Agreement Review Period (the "Preliminary Report", which together with each exception document referred to therein are collectively referred to herein as, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased subject to the following matters, which shall be deemed to be “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of Disapproved Exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"), to give Sellers a detailed notice objecting to any exception or condition contained in the Title Commitments or shown on the Updated Surveys, or the New Surveys, if any. Should SteelWave fail to notify Ohlone College in writing If Purchaser does not give notice of any objections to any matter first disclosed in a Preliminary Report Update prior to Sellers within the expiration of the Preliminary Report Update Title Review Period, as applicable, SteelWave Purchaser shall be deemed to have approved such matters which shall then be considered Permitted Exceptions the title as defined above. Ifshown in the Title Commitment, however, SteelWave objects to any such new the title exceptions, Ohlone College and all matters shown on the Updated Surveys. If Purchaser provides timely objections, Sellers shall have four five (45) business days after receipt of SteelWavePurchaser's written notice thereof (the "Title Cure Period") in which to (Acure or attempt to cure Purchaser's objections; provided, however that Sellers shall not have any obligation to cure any of Purchaser's objections. Sellers may bond around any mechanics' or materialmen's lien(s) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (Babstract(s) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior of judgment to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptionsTitle Company's reasonable satisfaction. If Ohlone College gives SteelWave notice under clause (A)Purchaser provides timely objections and all of Purchaser's objections are not cured within the Title Cure Period for any reason, SteelWave may elect on or before then, within five (5) business days after SteelWave's receipt the last day of Ohlone College's notice to the Title Cure Period, Purchaser shall, as its sole and exclusive remedy, waiving all other remedies, either: (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (iia) terminate this Agreement. If Ohlone College fails Agreement by giving a termination notice to give SteelWave notice within four Sellers, at which time Escrowee shall return the Xxxxxxx Money to Purchaser and the parties shall have no further rights, liabilities, or obligations under this Agreement (4other than those that expressly survive termination); or (b) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall waive the uncured objections by proceeding to Closing and thereby be deemed to have elected to give SteelWave notice under clause (A)approved the Purchaser's title as shown in the Title Commitment, the title exception documents, and the Updated Surveys and New Surveys, if any. If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College Sellers do not timely receive notice of its Purchaser's election on or before the expiration of the five (5) business day period referenced aboveto terminate under this Section 3.3, then SteelWave shall Purchaser will be deemed to have elected to waive any such waived the uncured objections and to proceed with approve the purchase without offset Purchaser's title as shown in the Commitment, the title exception documents, and the Updated Survey. All exceptions shown on the Title Commitments, the title exception documents, or credit against the Purchase Price, in which case any disapproved exceptions Updated Surveys that are not cured within the Title Cure Period shall become be the "Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3".
Appears in 1 contract
Samples: Real Estate Sale Agreement (Boston Capital Real Estate Investment Trust Inc)
Title Review. a. At Closing, Ohlone College shall ground lease the Property to SteelWave as will enable the Title Company to issue to SteelWave, a 2006 ALTA extended coverage Owner’s Policy of Title Insurance, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request (the “ALTA Policy”), subject only to the “Permitted Exceptions” (as hereinafter defined), and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave and Ohlone College as provided in this Agreement) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Period, an ALTA survey sufficient for Title Company to issue the ALTA Policy. Within five (5) days following the Effective Date, Ohlone College shall cause Escrow Holder to deliver to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing of the Property to SteelWave under this Agreement (the "Preliminary Report", which together with each exception document referred to therein are collectively referred to herein as, the "Title Documents"). Notwithstanding anything contained herein to the contrary, the Property shall be ground leased subject to the following matters, which shall be deemed to be “Permitted Exceptions”: (1) the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the date of Closing, subject to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(b) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title DocumentsCommitment (together with legible copies of all of the recorded documents referenced therein as exceptions) and the Survey, SteelWave Purchaser shall advise Ohlone College by written notice if it have reviewed and approved or disapproved those matters reflected on the Title Commitment and the Survey. In the event Purchaser objects to any exceptions shown on such matters, Purchaser shall advise Sellers in writing of its objections within said fifteen (15) day period; provided, however that such objections shall not include those items specifically excluded in Paragraph 4. Within ten (10) days of Sellers’ receipt of Purchaser’s objections, Sellers shall advise Purchaser in writing as to whether it intends to correct the Preliminary Report defects to which Purchaser has objected. If Sellers fails to notify Purchaser within said ten (the "Disapproved Exceptions"). Ohlone College 10) day period or timely notifies Purchaser of its refusal to correct some or all of such defects, Purchaser shall have four ten (410) business days after receipt following the earlier of SteelWave's written notice of any Disapproved Exceptions to (Ai) give SteelWave written notice that Ohlone College elects, in its sole and absolute discretion not to cause the Disapproved Exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from title on or prior to the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to said Sellers’ ten (i10) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptions, day response period or (ii) the date Purchaser receives Sellers’ notice of refusal, to advise Sellers of its decision to close, notwithstanding the defects, or to terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt In the event of SteelWave's written notice of Disapproved Exceptionsany such termination, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated hereunder, other than Sellers’ obligation to survive terminationreturn or to direct the return of Purchaser’s Xxxxxxx Money. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt Any approval of the Title Documents (each, a "Preliminary Report Update"), SteelWave Commitment shall furnish Ohlone College with a written statement be subject to Purchaser’s review of and approval or objections to any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed additional title matters which may be reflected in a Preliminary Report Update prior the update to the expiration Title Commitment which Sellers shall provide to Purchaser following the completion of the Preliminary Report Update Review Period, as applicable, SteelWave shall be deemed Facilities improvements. Any matter reflected in the Title Commitment or the Survey not objected to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's written notice thereof to (A) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from title, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on or prior to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days in order to cause such disapproved exceptions to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to the Closing Date, as such date may be adjourned pursuant to clause (1) of this sentence, then SteelWave may pursue any or all of its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated to survive termination. The Closing Date hereof shall be extended to the extent necessary to accommodate the review and objection process described in this Section 5.1.3.deemed accepted by Purchaser;
Appears in 1 contract
Title Review. a. At Closing, Ohlone College (a) Investor acknowledges receipt of the Title Commitments and the Survey. Investor shall ground lease the Property to SteelWave as will enable direct the Title Company to issue deliver a copy of any updates to SteelWavethe Title Commitments to WWP Sponsor and its counsel simultaneously with its delivery of the same to Investor. Investor shall have no right to object to any exceptions or other matters disclosed in the Title Commitments or Survey, a 2006 ALTA extended coverage Owner’s Policy of except as marked on Schedule 8.1(a) attached hereto or to the extent any exceptions disclosed on the Title InsuranceCommitments or the Survey are not Permitted Encumbrances (collectively, with leasehold owner endorsement and such other endorsements thereto as SteelWave may request (the “ALTA PolicyCommitment Objections”). Other than the Commitment Objections, all matters disclosed in the Title Commitments or Survey shall be deemed Permitted Encumbrances.
(b) If prior to the Closing Date, the Title Company shall deliver any update to any of the exhibits and schedules making up the Title Commitments or any updated or new survey to Investor and its counsel which discloses additional liens, encumbrances or other title exceptions which were not disclosed by the Title Commitments and which do not otherwise constitute Permitted Encumbrances hereunder (each, an “Update Exception”), subject only to then Investor shall have until the “Permitted Exceptions” earliest of (as hereinafter defined), and SteelWave’s receipt of a title commitment from Title Company prior to the Due Diligence Expiration Date to issue the Title Policy as of the Closing in such form (subject to Title Company’s receipt of payment for such Title Policy, the cost of which shall be allocated between SteelWave and Ohlone College as provided in this Agreementx) shall be a condition precedent to SteelWave’s obligation to enter into the Ground Lease at Closing, provided that SteelWave obtains and delivers to Title Company, prior to the expiration of the Due Diligence Period, an ALTA survey sufficient for Title Company to issue the ALTA Policy. Within five (5) days following Business Days after delivery of such update to Investor and its counsel, (y) the Effective Business Day immediately preceding the Closing Date; provided, however, that if such update is delivered within five (5) Business Days preceding the Scheduled Closing Date, Ohlone College the Scheduled Closing Date shall cause Escrow Holder be postponed by the number of days between the date that is five (5) Business Days before the Scheduled Closing Date and the date such update is delivered to Investor, or (z) the date of the Closing if disclosed in a continuation of title or any updated or new survey performed for the Closing, time being of the essence as to such earliest date (the “Update Objection Deadline”), to deliver written notice to SteelWave an owner's standard coverage preliminary title report dated no earlier than twenty (20) days prior WWP Sponsor objecting to the Effective Date, together with complete copies of all underlying documents relating to title exceptions referred to therein, issued in connection with the leasing any of the Property to SteelWave under this Agreement Update Exceptions (the "Preliminary Report"“Update Objections”; the Update Objections and Commitment Objections are, which together with each exception document referred to therein are collectively referred to herein ascollectively, the "“Title Documents"Objections”). Notwithstanding anything contained herein If Investor fails to deliver such objection notice by the contraryUpdate Objection Deadline, the Property shall be ground leased subject to the following matters, which Investor shall be deemed to have waived its right to object to any Update Exceptions (and the same shall not constitute Title Objections, but shall instead be “deemed Permitted Exceptions”: Encumbrances). If Investor shall deliver such objection notice by the Update Objection Deadline, any Update Exceptions which are not objected to in such notice shall not constitute Title Objections, but shall be Permitted Encumbrances.
(1c) the lien of all ad valorem real estate taxes and assessments Investor shall not yet due and payable as of the date of Closing, subject be entitled to adjustment as herein provided, if any; (2) local, state and federal laws, ordinances or governmental regulations, including but not limited object to, building and zoning lawsshall be deemed to have approved, ordinances any liens, encumbrances or other title exceptions (and regulationsthe same shall not constitute Title Objections, now or hereafter in effect relating but shall instead be deemed to the Property; (3) such state of facts as may be shown on the final survey obtained by Tenant as provided above in this Section 5.2.1, and, (4) any of the matters set forth in Section 5.1.1(bPermitted Encumbrances) which become Permitted Exceptions pursuant to the terms thereof.
b. Within thirty-five (35) days of the receipt of the Title Documents, SteelWave shall advise Ohlone College by written notice if it objects to any exceptions shown on the Preliminary Report (the "Disapproved Exceptions"). Ohlone College shall have four (4) business days after receipt of SteelWave's written notice of any Disapproved Exceptions to (A) give SteelWave written notice that Ohlone College electswill be extinguished upon the issuance of the Investor Interest, in its sole and absolute discretion not (B) are the responsibility of any Tenant to cause the Disapproved Exceptions to be removed from titlecure, correct or remove, or (BC) give SteelWave notice that Ohlone College will remove the Disapproved Exceptions from Title Company is willing to omit as an exception to a title on insurance policy issued by the Title Company (at no cost or prior premium to Investor), whether such removal is the result of payment, bonding, indemnity of WWP Sponsor or otherwise. Notwithstanding anything to the contrary contained herein but subject to Section 8.1(e) below, if WWP Sponsor is unable to (or is unable to cause Office Owner or Amenities Owner to) eliminate the Title Objections by the Scheduled Closing Date, unless the same are waived by Investor, WWP Sponsor may, but shall not be obligated to, adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (the “Title Cure Period”) in order to attempt to eliminate such exceptions.
(d) Subject to Section 8.1(e) below, if WWP Sponsor is unwilling or unable to (or is unwilling or unable to cause Office Owner or Amenities Owner to) eliminate any Title Objection within the Title Cure Period, then Investor may (i) close the transactions contemplated by this Agreement subject to such Title Objection, in which event (x) such Title Objection shall be deemed to be, for all purposes, a Permitted Encumbrance, (y) Investor shall close hereunder notwithstanding the existence of same, and (z) WWP Sponsor shall have no obligations whatsoever after the Closing Date or arrange, at SteelWave's cost and expense, for affirmative title insurance or special endorsements, which shall with respect to WWP Sponsor’s failure to cause such Title Objection to be acceptable to SteelWave in its sole discretion. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before the expiration of the Due Diligence Period by providing written notice to Ohlone College to (i) waive its objections to title and proceed with the purchase without offset or credit, in which case such Disapproved Exceptions shall become Permitted Exceptionseliminated, or (ii) terminate this AgreementAgreement by notice given to WWP Sponsor within five (5) Business Days following expiration of the Title Cure Period, time being of the essence, in which event Investor shall be entitled to a return of the Deposit. If Ohlone College fails Investor shall fail to give SteelWave deliver the termination notice described in clause (ii) of this paragraph within four the five (45) business days after receipt Business Day period described therein, time being of SteelWave's written notice of Disapproved Exceptionsthe essence, then Ohlone College Investor shall be deemed to have elected to give SteelWave made the election under clause (ii). Upon the timely giving of any termination notice under clause (A). If Ohlone College gives ii) (or is deemed to give) SteelWave notice under clause (Atermination), this Agreement shall terminate and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the Due Diligence Period, then SteelWave shall be deemed to have elected to waive such objection and to proceed with the leasing of the Property without offset or credit, in which case any Disapproved Exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B) and Ohlone College fails to remove the Disapproved Exceptions from title prior to the Closing Date, then SteelWave shall be entitled to pursue its remedies hereunder, and if SteelWave elects to terminate this Agreement, then neither party hereto shall have any further rights or obligations hereunder except for those which are other than the Surviving Obligations. Subject to Section 8.1(e) and Section 8.2 below, it is expressly stated understood that in no event shall WWP Sponsor be required to survive termination. Notwithstanding anything to the contrary contained in the immediately preceding sentence, SteelWave, at its sole cost and expense, shall be permitted to cause the Escrow Holder to insure over bring any mechanics' liens as set forth above so long as such mechanics' lien is not an exception to the coverage afforded by the ALTA Policy.
c. In the event the Escrow Holder amends action or updates the Preliminary Report after the thirty-fifth (35th) day after SteelWave's receipt of the Title Documents (each, a "Preliminary Report Update"), SteelWave shall furnish Ohlone College with a written statement of approval or objections to institute any matter first raised in a Preliminary Report Update within ten (10) business days after its receipt of such Preliminary Report Update and a copy of each new exception raised therein (each, a "Preliminary Report Update Review Period"). Should SteelWave fail to notify Ohlone College in writing of any objections to any matter first disclosed in a Preliminary Report Update prior to the expiration of the Preliminary Report Update Review Period, as applicable, SteelWave shall be deemed to have approved such matters which shall then be considered Permitted Exceptions as defined above. If, however, SteelWave objects to any such new exceptions, Ohlone College shall have four (4) business days after receipt of SteelWave's written notice thereof to (A) give SteelWave notice that Ohlone College elects, in its sole and absolute discretion, not to cause such disapproved exceptions to be removed from titleproceeding, or (B) give SteelWave notice that Ohlone College will remove such disapproved exceptions from title on to otherwise incur any costs or prior to the Closing Date or arrange, at SteelWave’s cost and expense, for affirmative title insurance or special endorsements, which shall be acceptable to SteelWave in its sole discretion, insuring against enforcement of such disapproved exceptions. If Ohlone College gives SteelWave notice under clause (A), SteelWave may elect on or before five (5) business days after SteelWave's receipt of Ohlone College's notice to (i) waive its objections to title and proceed with the Closing without offset or credit against the Rent, in which case such disapproved exceptions shall become Permitted Exceptions, or (ii) terminate this Agreement. If Ohlone College fails to give SteelWave notice within four (4) business days after receipt of SteelWave's written notice of such disapproved exceptions, then Ohlone College shall be deemed to have elected to give SteelWave notice under clause (A). If Ohlone College gives (or is deemed to give) SteelWave notice under clause (A), and SteelWave fails to give Ohlone College notice of its election on or before the expiration of the five (5) business day period referenced above, then SteelWave shall be deemed to have elected to waive any such objections and to proceed with the purchase without offset or credit against the Purchase Price, in which case any disapproved exceptions shall become Permitted Exceptions. If Ohlone College gives SteelWave notice under clause (B), (I) Ohlone College shall have the right to a reasonable adjournment of the Closing Date not to exceed twenty (20) days expenses in order to attempt to (or to cause such disapproved exceptions Office Owner or Amenities Owner to) eliminate any Title Objections, or take any other actions to cure or remove any Title Objections, or to otherwise cause title to be removed from title or to obtain affirmative title insurance or special endorsements for such exceptions in accordance with the terms of this Section 5.1.3 and (2) and Ohlone College fails to remove the disapproved exceptions from title prior to Agreement on the Closing Date; provided, that WWP Sponsor shall (and shall cause Office Owner and Amenities Owner to) use commercially reasonable efforts to attempt to eliminate all such Title Objections.
(e) Notwithstanding anything in this Agreement to the contrary, WWP Sponsor shall be required to or shall cause Office Owner or Amenities Owner to, as such date may applicable, (i) satisfy or remove of record any mortgage placed on the Real Property after the Acquisition Date (other than the Amenities Mortgages, the Mortgage Loan and the Mezzanine Loan), (ii) remove all judgment liens and all tax liens that in either case are due and payable by WWP Sponsor or, to the extent accruing after the Acquisition Date, any of the Subsidiary Entities, (iii) remove, by payment, bonding or otherwise any Title Objections which have been voluntarily created by, or with the written consent of, WWP Sponsor, any Subsidiary Entities or any WWP Sponsor Party following the Effective Date (other than with the written approval of Investor) and which are not given for the benefit of any utility or governmental authority or caused or created by an act or omission of Investor or by an act or omission of a Tenant, and (iv) remove any and all other exceptions (other than as set forth in clauses (i), (ii) and (iii) above) that can be adjourned pursuant discharged of record by the payment of a liquidated sum not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate when added to clause the amount expended under Section 8.2 below (1the “Clause (iv) of this sentence, then SteelWave may pursue any or all of its remedies hereunderCure Cap”). If the Clause (iv) Cure Cap shall be exceeded, and if SteelWave elects WWP Sponsor notifies Investor in writing that WWP Sponsor is not willing to terminate this Agreementexpend in excess of the Clause (iv) Cure Cap, then neither party shall have any further rights or obligations hereunder except for those which are expressly stated then, in such instance, Investor may nevertheless close hereunder, subject to survive termination. The Closing Date shall be extended such exceptions, with a credit against the purchase price in the amount required to cure such condition up to the extent necessary to accommodate the review and objection process described in this Section 5.1.3Clause (iv) Cure Cap.
Appears in 1 contract
Samples: Contribution and Admission Agreement (American Realty Capital New York Recovery Reit Inc)
