Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined). (b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement). (c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above. (d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 3 contracts
Samples: Contract of Sale (Strategic Storage Trust, Inc.), Contract of Sale (Strategic Storage Trust, Inc.), Contract of Sale (Strategic Storage Trust, Inc.)
Title to the Property. (a) As At the Closing, Seller shall deliver, or cause to be delivered, to Buyer a condition special warranty deed in form and content reasonably satisfactory to Buyer’s counsel with documentary or other required stamps to be affixed thereto at Seller’s expense, conveying to Buyer fee simple, marketable, and insurable title to the Closing Chicago Title Insurance Company Property free and clear of all liens, encumbrances, and defects of title other than: (a) zoning ordinances affecting the property, and (b) matters of record that are not objected to by Buyer (“Title CompanyPermitted Exceptions”) ); provided that Seller shall have committed be required to insure Purchaser satisfy, at or prior to closing, any encumbrances that may be satisfied by the payment of a fixed sum of money, such as the fee owner deeds of trust, mortgages or statutory liens. Seller shall not enter into or record any instrument that affects the Property in after the amount Effective Date without the prior written consent of the Purchase Price by issuance Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) Within thirty (30) days after receipt of an ALTA Seller’s owner’s title insurance policy (“Examination Period”), Buyer shall, at Buyers expense, cause a title examination to be made of the “Owner’s Policy”) Property. In the event that such title examination shall show that title is not fee simple marketable and in the standard form issued by the Title Company in the State of Californiainsurable, subject only to Permitted Exceptions, then Buyer shall notify Seller in writing within thirty (30) days after the Permitted Exceptions (as hereinafter defined).
(b) expiration of the Examination Period of all such title defects and exceptions and Seller shall order, at Purchaser’s sole cost and expense, within five have thirty (530) days following until the date hereofClosing Date to cure said noticed defects. The parties acknowledge and agree that the Land is currently owned by Data Residential, a commitment for an owner’s fee title insurance policy LLC and will be transferred to ATC East prior to commencement of construction of the Building; upon Substantial Completion of the Property, the Property will be transferred to Seller and then to Buyer. If Seller does not cure the defects or policies with respect objections within (30) thirty days of notice thereof, then Buyer may terminate this Contract. Title to the Property (the “Title Commitment”) from the Title Companymust be insurable at regular rates, and shall cause the Title Commitment, together with those copies of all instruments giving rise subject only to any defects or standard exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 3 contracts
Samples: Contract for Purchase of Real Property, Contract for Purchase of Real Property, Contract for Purchase of Real Property
Title to the Property. (a) As a condition to the Closing Chicago Closing, Lawyers Title Insurance Company Corporation, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Title Officer: Xxxxxxx X. Xxxxxxxxx, Telephone (000) 000-0000, Telecopier (000) 000-0000 (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaNew Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller Purchaser shall order, at Purchaser’s its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title CompanyCompany and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with those true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title CompanyProperty, and the Survey to be delivered to Purchaser and PurchaserSeller’s attorneys concurrently with the delivery thereof to Seller Purchaser or SellerPurchaser’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or Attached hereto as Exhibit E is a new survey of the Property notice (the “Updated SurveyTitle Objection Notice”). If any ) identifying those exceptions(s) to title to the Property should appear appearing in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and Purchaser shall provide Seller with written notice (z) zoning matters that were only ascertainable upon delivery of the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, . Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of exception to title, survey or zoning matters which Purchaser does are not notify Seller within such ten (10) day period identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such Unpermitted Exception exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after days following the date the exception is first identified by the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty thirty (6030) days in the aggregate (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of any other monetary liens encumbering the Property (other than the Existing Financing) in which are of an ascertainable amount and do not to exceed Ten Fifty Thousand and 00/100 Dollars ($10,000.0050,000) in the aggregate provided the removal of such monetary lien shall and are not be the responsibility of any tenant at of the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five three (53) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Samples: Contract of Sale (KBS Real Estate Investment Trust II, Inc.), Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Title to the Property. A. Claimholder hereby represents and warrants to Company as follows:
(ai) As a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner Upon relocation of the Property Claims, Claimholder shall own or be able to convey a full and undivided interest in and to each of the unpatented mining claims included in the amount Property as of the Purchase Price by issuance date hereof.
(ii) To the best of an ALTA owner’s title insurance policy the knowledge, information and belief of Claimholder, all such claims were or shall be validly located and maintained in accordance with all applicable laws and regulations;
(the “Owner’s Policy”iii) All such claims shall be free and in the standard form issued by the Title Company in the State clear of Californiaall liens, claims, and encumbrances whatsoever, subject only to the Permitted Exceptions (paramount interest of the United States of America and / or the State of Arizona; all taxes, if any, which may be or which may become a lien upon the Property, as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following of the date hereof, have been paid;
(iv) The Property is not in any manner encumbered as a commitment for an owner’s fee title insurance policy result of any conduct or policies with respect to activity of Claimholder;
(v) Having secured the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies approval of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject member to the terms and conditions of this Section 4.1Agreement, Claimholder has full and complete authority to execute this Agreement and to grant the rights herein conferred on Company; and
(vi) Claimholder has no knowledge that any of the mining claims comprising the Property shall be invalid, or that, except for any patented ground lying within the Property Area or unpatented claims of record, there are other senior mining claims in conflict with any of such claims. Purchaser hereby waives any right Purchaser may have The foregoing notwithstanding, it is acknowledged and agreed that it is not possible to advance, as objections to title or as grounds determine whether there are conflicting unpatented claims for Purchaser’s refusal to close this transaction, any Unpermitted Exception a period of which Purchaser does not notify Seller within such ten 90 (10Ninety) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to days from the date of the Title Commitment, and claim location (iior relocation) Purchaser shall notify Seller of the same within five as any conflicting claimants have 90 (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60Ninety) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return file their claim notices with the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) BLM. In the event that Seller is unablesenior conflicting unpatented claims are filed within 90 (Ninety) days of claim location, or elects not, Claimholder shall use its reasonable efforts to eliminate all Unpermitted Exceptions (1) acquire such claims and incorporate them in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property under this agreement, (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to 2) replace such claims with additional claims of similar acreage within the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), Area or (ii3) accept title replace the entire Property with another Property reasonably acceptable to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) aboveCompany.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Samples: Gold Mine Acquisition Agreement (North American Gold & Minerals Fund), Acquisition Agreement (North American Gold & Minerals Fund)
Title to the Property. At the Closing, Owner shall deliver to Highwoods a limited warranty deed in form and content reasonably satisfactory to Highwoods' counsel with transfer tax paid by Highwoods (a) As subject however to a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property reduction in the amount of Consideration in the Purchase Price amount of such transfer tax) conveying to Highwoods a fee simple, and insurable title to the Fee Parcels and an Assignment of Ground Leases (in the form of Exhibit N-1) said title to the Fee Parcels and Leasehold Interest to be insurable at regular rates by issuance of an ALTA owner’s a title insurance policy company of Highwoods' choice (the “Owner’s Policy”"Title Company"), subject only to those matters which shall be specifically enumerated in Exhibit H or otherwise constitute Permitted Exceptions hereunder ("Permitted Exceptions"). Within fourteen (14) and in days of the standard form date hereof, Highwoods shall obtain a current title insurance commitment for the Land issued by the Title Company showing the condition of title of the Land (the "Title Report"). If Highwoods disapproves of any matter of title contained in the State Title Report, Highwoods shall provide written notice of California, subject only Highwoods' disapproval of the same to Owner (those disapproved title matters as so identified by Highwoods are hereafter called the Permitted Exceptions "Disapproved Exceptions") within twenty-one (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (521) days following from the date hereof, but in all events, prior to Closing. For the term of this Agreement, Owner may, but is not obligated, to remove any Disapproved Exception, provided the cost thereof does not exceed One Million and no/100 Dollars ($1,000,000.00). However, in the event that Highwoods proceeds to and consummates a commitment for an owner’s fee Closing subject to a Disapproved Exception, such Disapproved Exception shall then be deemed to be a Permitted Exception. Owner shall have no obligation to make a payment to cause the removal of a Disapproved Exception. Any reasonable expenses incurred in obtaining such title insurance policy or policies with respect to commitment (including, without limitation, those incurred by an attorney in conducting the Property (the “Title Commitment”necessary title search) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to be borne by Highwoods. The title insurance premium shall also be borne by Highwoods. Any matter affecting title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey which exists as of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title CommitmentReport which is not a Permitted Exception and which is not a Disapproved Exception shall be an additional Permitted Exception. The Land, its appurtenances and the Improvements shall be conveyed or assigned (as applicable) by Owner to Highwoods free and clear of all liens, encumbrances, claims, rights-of-way, easements, leases, restrictions and restrictive covenants, except the Permitted Exceptions and the following additional Permitted Exceptions:
(a) Rights-of-way of streets, so long as they do not interfere with the use of the Property for office and related commercial purposes;
(b) Public utility easements and rights-of-way in customary form, so long as they do not interfere with the use of the Property for office and related commercial purposes;
(c) Rights and claims of tenants under recorded and unrecorded leases, so long as (i) all of same have been fully disclosed by Owner to Highwoods on Exhibit D or Exhibit I attached hereto; (ii) Purchaser shall notify Seller all of the same within five contain no tenant cancellation rights, right of rent abatement, or right of option or first refusal for the purchase of the Property except as set forth in the leases provided to Highwoods; (5iii) Business Days after there shall have been no modifications or amendments to the same from the date hereof, except as provided in Section 9.04;
(d) Zoning and building laws or ordinances, provided they do not prohibit the use of the Property for office and related commercial purposes, and so long as the Property is in compliance with same;
(e) Ad valorem taxes for any year in which they are not yet due and payable; and
(f) The security title, security interest and lien of the deeds to secure debt and other collateral documents securing the Promissory Notes (the "Loan Documents"). If, in the opinion of Highwoods' counsel, Highwoods is not able to obtain an owner's title insurance commitment from the Title Company shall notify Purchaser complying with the requirements of this Subsection 6.01, with such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception endorsements and coverages as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this AgreementHighwoods requires, Seller, in its sole discretion, Highwoods shall have the right option of taking title "as is" and consummating the Closing, or terminating this Agreement at any time prior to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller expiration of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted ExceptionsInspection Period. Notwithstanding the foregoing or anything any other provision contained herein to the contrary set forth in this Agreementcontrary, Seller shall not under any circumstance be required or obligated to cause if the cure or removal of any Unpermitted Exception includingtitle defect(s), which may include, without limitation, a Disapproved Exception, is a mortgage, lien, judgment, assessment, unpaid taxes or tax which can be cured by a monetary payment (except for the Loan Documents) (and with respect to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for which affirmative title insurance insuring against enforcement of such Unpermitted Exception againstcoverage is not available at the Title Company's standard rates) Highwoods has, or collection of the same out ofand shall have, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for absolute right of making such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount payment not to exceed Ten One Hundred Thousand and 00/100 no/100 Dollars ($10,000.00100,000.00) in and reducing by a like amount the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant Consideration due to Owner at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)Closing.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Samples: Contribution and Exchange Agreement (Highwoods Properties Inc), Contribution and Exchange Agreement (Highwoods Forsyth L P)
Title to the Property. A. At the Closing, Seller shall convey to Buyer or its designee marketable and insurable fee simple title to the Real Property, the Appurtenances and the Improvements, by duly executed and acknowledged grant deed substantially in the form of attached Exhibit B (a) the “Deed”). As a condition to Buyer’s obligation to consummate the Closing Chicago purchase of the Property, the Title Company shall issue to Buyer an ALTA Owner’s Policy of Title Insurance Company (the “Title Company”2006 Form) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Title Policy”) and in the standard form issued by ), at no more than the Title Company Company’s standard rates, insuring fee simple title to the Real Property, the Appurtenances and the Improvements in the State of CaliforniaBuyer or its designee, subject only to such exceptions as Buyer shall approve pursuant to Section 4(F) below (the “Permitted Exceptions Encumbrances”). The Title Policy shall provide full coverage against mechanics’ and materialmen’s liens arising out of the construction, repair or alteration of any of the Improvements including any tenant improvements therein and shall contain such special endorsements as Buyer may reasonably require (as hereinafter definedthe “Endorsements”).
(b) B. At the Closing, Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee transfer title insurance policy or policies with respect to the Personal Property by a xxxx of sale in the form attached hereto as Exhibit C (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies Xxxx of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted ExceptionsSale”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to such title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser free of its right to raise such Unpermitted Exception as an objection to title any liens, encumbrances or as a ground for Purchaser’s refusal to close interests.
C. At the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this AgreementClosing, Seller shall not under transfer the Intangible Property and any circumstance Service Contracts that Buyer elects to assume hereunder by such instruments as Buyer may determine to be required or obligated to cause the cure or removal of any Unpermitted Exception necessary, including, without limitation, an assignment in the form of attached Exhibit D (the “Assignment”), such title to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) be free of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided furtherliens, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing encumbrances or a termination of this Agreement)interests.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Integrated Silicon Solution Inc)
Title to the Property. (a) As At Closing, Seller shall deliver to Buyer a condition special warranty deed in form and content reasonably satisfactory to Buyer’s counsel with transfer tax paid at Seller’s expense, conveying to Buyer good, indefeasible, fee simple, marketable and insurable title to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed Property, said title to insure Purchaser be insurable both as the to fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued marketability at regular rates by the Title Company in the State of CaliforniaCompany, subject only to those matters specifically enumerated as title exceptions in the title insurance commitment obtained by Buyer that are not objected to by Xxxxx (by notice to Seller pursuant to Paragraph 2.4.3(c)) prior to the end of the Due Diligence Period (collectively the “Permitted Exceptions Exceptions”). The title insurance policy or policies of the Title Company to be issued at Closing in connection with conveyance of the Property shall (i) provide full coverage against mechanics’ or materialmen’s liens, have full survey coverage; (ii) not take exception for parties in possession other than Buyer; (iii) not take exception for any taxes or liens other than future taxes which are not yet due and payable as hereinafter defined)of the Closing date, and (iv) shall contain such other special endorsements as Buyer’s counsel or its lender may reasonably require. Buyer shall deliver such affidavits and other documentation as may be reasonably necessary to ensure that the Title Company can issue title insurance policies providing the coverages described in (i) through (iv) in the previous sentence.
(b) The Property shall be conveyed by Seller shall order, at Purchaser’s sole cost to Buyer free and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies clear of all instruments giving rise to any defects or exceptions to liens, encumbrances, claims, rights-of-way, easements, leases, restrictions, restrictive covenants and other matters affecting title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than except for the Permitted Exceptions (such exception(s) being herein calledall of which, collectivelyalthough permitted as exceptions to title if Closing occurs, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same be subject to the terms and conditions approval of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, SellerBuyer, in its sole discretion, shall have during the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Due Diligence Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In If in the event opinion of Buyer or Xxxxx’s counsel, the Buyer’s title commitment or the Survey reveals anything that Seller is unableadversely affects the Property, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey if Seller’s title to the Property in accordance with fails to meet the terms of this Agreement on foregoing requirements, or before the Closing Date (whether contains defects or exceptions not the Closing is adjourned as provided in Section 4.1.1(b))approved by Buyer, Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Sellerthen Buyer may, by delivery of giving written notice to Seller prior to the expiration of the Due Diligence Period, either terminate this Agreement (as a Permitted Termination) or specify the title or survey defect(s). If Xxxxx specifies any such defect, Xxxxxx agrees to notify Xxxxx in writing within five (5) Business Days following receipt business days after Xxxxx’s notice of notice from defect as to whether Seller of its election not will attempt to remove cure such Unpermitted Exceptionsdefect(s). If Seller fails to cure such defect(s) prior to Closing, to either Buyer shall have the option (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept taking title to the Property subject to such Unpermitted Exception(s) without a reduction in“as is” and consummating the Closing of the Property, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on of extending the Closing Date, there are any liens or encumbrances that for a reasonable period of time to enable Seller to cure such deficiency if Seller is obligated attempting to discharge under cure same, (iii) of terminating this Agreement at any time on or prior to the last date for Closing specified in this Agreement, by written notice thereof to Seller, which shall be a Permitted Termination as set forth herein, or (iv) if the defect is a lien that can be cured by a monetary payment, of making such payment at Closing and reducing by a like amount the cash due to Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptionsat Closing.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement, Purchase Agreement
Title to the Property. (a) As a condition At Closing, Seller shall convey to the Closing Chicago Title Insurance Company Purchaser by bargain and sale deed, with covenants against grantor’s acts (the “Title CompanyDeed”) shall have committed ), fee simple title to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price Property, insurable at regular rates by issuance of an ALTA owner’s a title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company company licensed to do business in the State of CaliforniaNew Jersey, subject only to the following liens, easements, restrictions, conditions or other encumbrances (hereinafter referred to as the “Permitted Exceptions Encumbrances”):
(a) Such liens, easements, restrictions, conditions or other encumbrances as hereinafter defined).are listed in Exhibit C attached hereto and incorporated herein by this reference;
(b) Seller shall orderGeneral real estate taxes for the year of Closing which are not yet due and payable;
(c) Liens for municipal betterments which are assessed after the Effective Date and due after Closing;
(d) Zoning regulations and municipal building restrictions, at Purchaser’s sole cost and expenseall other laws, within five ordinances, regulations and restrictions of any duly constituted public authority enacted prior to the Closing Date provided the current use of the Property complies with same;
(5e) days following Such state of facts as an accurate survey or a physical inspection of the Property may disclose provided such facts do not render title unmarketable;
(f) Other covenants, easements and restrictions which do not materially and adversely affect the use of the Property as permitted by zoning and related ordinances and laws on the date hereof, a commitment as well as grants to utility and/or power companies, the rights of the public in sidewalks and abutting public rights-of-way, and easements given to the public for an owner’s fee water course maintenance, slope rights or sight rights;
(g) Standard exceptions set forth in the form of title insurance policy of the title insurance company selected by Purchaser; and
(h) Any other matter which would constitute a Title Objection (as defined in Section 3.2) that Purchaser waives, or policies with respect is deemed to have waived, pursuant to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)subsections.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Hemispherx Biopharma Inc)
Title to the Property. (a) As a condition Seller shall convey good and indefeasible fee simple title to the Closing Chicago Title Insurance Company (Land and the “Title Company”) shall have committed Improvements to insure Purchaser as Buyer in the fee owner form of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaDeed, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller Title Exceptions. Buyer shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, order a commitment for an current owner’s fee title insurance policy or policies commitment with respect to the Property Land and Improvements from the Title Insurer, together with legible copies of all of the underlying exception documents shown on Schedule B-2 thereof (the “Title Commitment”) from ). Buyer shall have until the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise Inspection Date by which to any defects or exceptions to examine title to the Property that Purchaser receives from as disclosed by the Title Company, Commitment and the Survey and to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof give written notice to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”)any objections which Buyer may have. If Buyer fails to give any exceptions(s) notice to Seller by such date, Buyer shall be deemed to have approved any title to the Property should appear exceptions or defects disclosed in the Title Commitment and Survey. If Buyer does give Seller timely notice of objection to title exceptions or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both defects disclosed in the Title Commitment and the Updated Survey, Seller shall then have the right, but not the obligation, for a period of five (5) days after such notice, to cure or satisfy, or undertake to cure or satisfy by Purchaser’s attorneysthe Closing, such objection. If Seller does not cure or satisfy or undertake by written notice to Buyer to cure or satisfy such objections within the five (5) day period, then Buyer may elect, by written notice to Seller on or before such fifth (5th) day, either to (a) terminate this Agreement, in which case the Xxxxxxx Money, less $100 to be paid to Seller, in shall be returned to Buyer by Escrow Agent, and the parties shall have no further rights or obligations hereunder, except for those which expressly survive any such termination, or (b) waive its sole objections hereunder and absolute discretion, may undertake to eliminate proceed with the same subject transaction pursuant to the remaining terms and conditions of this Section 4.1Agreement. Purchaser hereby waives If Buyer fails to give Seller notice of its election by such time, it shall be deemed to have elected the option contained in subparagraph (b) above. If Seller does so cure or satisfy or give notice of its undertaking to cure or satisfy such objection within the time allowed, then this Agreement shall continue in full force and effect, subject to Seller so curing such objections, which shall be a condition to Buyer’s obligation to close. Buyer shall have the right at any right Purchaser time to waive any objections that it may have made and, thereby, to advance, as objections preserve this Agreement in full force and effect. Seller agrees not to further voluntarily alter or encumber in any way Seller’s title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date Property after the Contract Date (except for entering into new leases or renewing existing Leases to the extent permitted by Section 9.1 below) without Buyer’s consent, which consent shall not be unreasonably withheld or delayed. Seller shall give Buyer notice of the Title Commitment, any such proposed alteration or encumbrance and (ii) Purchaser Buyer shall notify Seller of the same within then have five (5) Business Days after business days in which to elect, by written notice to Seller on or before such fifth (5th) day, either to (i) consent to the Title Company change, or (ii) object, in which event Buyer shall notify Purchaser set forth and deliver in writing to Seller its reasons for doing so. If Buyer has not given Seller notice of such Unpermitted Exception its election by the end of the fifth (failure to so notify Seller 5th) day, Buyer shall be deemed to be a waiver by Purchaser of its right have elected to raise such Unpermitted Exception as an objection consent to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement)change. Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this AgreementSection 5, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, remove all mortgages encumbering the Property, notwithstanding and shall remove or bond over to Buyer’s and the Title Insurer’s reasonable satisfaction any other monetary liens and security interests in or against the Property, to the extent any such mortgages or other monetary liens and security interests arise by, through or under Seller, and are not the result of Buyer’s or Buyer’s agents’ actions. Provided that Buyer obtains a current Title Commitment and current Survey prior to the Inspection Date, then between the Inspection Date and the Closing Date, Buyer may update the Title Commitment and/or Survey and object to any new matters of title or survey not contained in the original Title Commitment and/or Survey other than immaterial matters. If Buyer so objects and Seller elects to undertake to cure such objections (in the manner provided above for the initial title objections), Seller may extend the Closing by up to thirty (30) days to attempt to cure such objections. If Seller is unable or unwilling to cure any such new objection, Buyer shall have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate rights as provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that above in the event Seller elects not fails to remove all monetary liens (other than the Existing Financing)cure or satisfy or undertake to cure or satisfy Buyer’s initial objections, then Purchaser shall have the right to terminate this Agreement by delivery of written provided Buyer gives Seller notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not prior to remove such monetary lien Closing (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreementas same may be extended).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Title to the Property. Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "C" attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) As a condition Purchaser has obtained from United Title Company (herein referred to as "Title Company") its commitment (hereinafter referred to as the "Title Commitment") to issue to Purchaser upon the recording of the Grant Deed conveying title to the Closing Chicago Title Insurance Company (Land and Improvements from Seller to Purchaser, the “Title Company”) shall have committed to insure Purchaser as the fee owner payment of the Property Purchase Price, and the payment to the Title Company of the policy premium therefor, an ALTA owner's policy of title insurance, in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring good and marketable fee simple record title insurance policy to the Land and Improvements to be in Purchaser without exception (including any standard exception) except for the “Owner’s Policy”) and Permitted Exceptions, which contains the following endorsements to the extent the same are available in the standard form issued State of California: comprehensive, zoning, covenants and restrictions, creditor's rights, survey, and access (provided, however that Purchaser shall be solely responsible for the portion of the premium charged by the Title Company in order to upgrade the State title policy from a CLTA policy to an ALTA policy and the cost of California, subject only any premiums charged by Title Company in connection with any and all such endorsements). The title policy issued pursuant to the Permitted Exceptions Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable. The title policy issued pursuant to the Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. The title policy issued pursuant to the Title Commitment shall not contain an exception for the state of facts which would be disclosed by a survey of the Property or an "area and boundaries" exception, and in lieu thereof, the Title Commitment shall contain an exception only for the matters shown on the current as-built survey to be provided by Seller to Purchaser in accordance with Paragraph 9(g) hereof. The title policy issued pursuant to the Title Commitment shall also contain such other special endorsements as Purchaser shall reasonably require (the "Endorsements"). Purchaser has delivered to Seller a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent survey of the Property prepared by Dubron & Associates, dated September 24, 1999, last revised August 7, 2000, which shows that the Property contains 893 parking spaces. From time to time, Purchaser may request an update to the effective date of such Title Commitment or may update the date of the survey and give notice to Seller shall orderof all defects or objections appearing subsequent to the effective date of the Title Commitment (or previous update thereof) or survey, at Purchaser’s sole cost as the case may be (including any reduction of parking spaces). Seller agrees to cause the satisfaction and expense, release of the monetary encumbrances on the Property in favor of Fremont Investment and Loan and South Xxxxxxx Investment Corporation. All matters disclosed by an updated Title Commitment and/or survey and not objected to by Purchaser within five (5) days following the date hereofafter receipt of such updates shall be deemed to be additional "Permitted Exceptions"; provided, a commitment for an owner’s fee title insurance policy or policies with respect however, encumbrances created by Seller in violation of this Agreement, taxes due and payable prior to the Property (the “Title Commitment”) from the Title CompanyClosing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey in no event be deemed to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Permitted Exceptions. Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property five (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (105) days after receipt of both the Title Commitment and the Updated Surveysuch notice of title defects or objections from Purchaser to advise Purchaser in writing which of such title defects or objections Seller does not intend to satisfy or cure; provided, however. Seller hereby agrees that Seller shall satisfy or cure prior to Closing any such defects or objections consisting of encumbrances created by Purchaser’s attorneys, Seller, Seller in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions violation of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transactionAgreement, any Unpermitted Exception taxes due and payable prior to Closing, and any mortgages, deeds of which trust, mechanic's or materialmen's liens and other such monetary encumbrances. In the event Seller fails to give such written advice to Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify day period, Seller shall be deemed to be a waiver by Purchaser of its right have agreed to raise satisfy or cure all such Unpermitted Exception as an objection to title defects or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary objections set forth in this Agreement, Purchaser's notice. If Seller shall advise Purchaser in writing that Seller does not under intend to satisfy or cure any circumstance be required or specific encumbrances which Seller is not obligated to cause satisfy or cure under the cure or removal of any Unpermitted Exception includingsecond preceding sentence, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller Purchaser may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to elect either (ia) to terminate this Agreement by written notice delivered to Seller (Seller, in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit Xxxxxxx Money shall be immediately refunded to Purchaser and this Agreement shall be of no party hereto further force or effect and Purchaser and Seller shall have any no further rights, obligations in connection herewith or liabilities hereunder, except under those provisions that for the obligations hereunder which expressly survive the Closing or a termination of this Agreement)termination, or (iib) to accept title to the Property subject to such Unpermitted Exception(s) without a reduction inspecific encumbrances, abatement of, or credit against, the Purchase Pricein which case such specific encumbrances shall become additional "Permitted Exceptions". The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. In the right event Seller fails or refuses to use a portion of the Purchase Price cure any defects and objections which are required herein to pay and discharge the same, either be satisfied or cured by way of payment or by alternative manner reasonably satisfactory Seller prior to the Title CompanyClosing, then (i) Purchaser may terminate this Agreement by written notice to Seller, in which event the Xxxxxxx Money shall be immediately refunded to Purchaser, and this Agreement shall be of no further force and effect and Purchaser and Seller shall have no further rights, obligations or liabilities hereunder, except for the same shall not be deemed to be Unpermitted Exceptionsobligations which expressly survive termination.
Appears in 1 contract
Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expenseBuyer shall, within five (5) days following after the date hereofEffective Date, order (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “"Commitment"), (ii) a photocopy of all documents ("Title Commitment”Documents") from describing all title exceptions shown on the Commitment (the "Title CompanyExceptions"), and shall cause the (iii) if Buyer so elects, an ALTA Land Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property Land (the “Updated "Survey”"). If Buyer objects to any exceptions(s) to title to matters disclosed by the Property should appear in the Commitment, Title Commitment Documents or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein calledSurvey, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser Buyer shall provide furnish Seller with a written notice statement thereof (the “"Title Objection Notice”") thereof within ten upon the earlier of (10a) five (5) days after receipt of both the last of the Commitment, Title Documents or Survey or (b) the expiration of the Study Period (the "Title Approval Date") specifying in detail all such title and survey objections (collectively, the "Title Objections").
(i) All matters shown on the Commitment and the Updated Survey, Survey (or in the absence of a Survey which would have been revealed by Purchaser’s attorneys, Seller, in its sole a survey) and absolute discretion, may undertake all Title Exceptions which are not objected to eliminate the same subject by Buyer prior to the terms Title Approval Date shall be "Permitted Exceptions". Seller shall have no obligation to cure any such Title Objections noted by Buyer; provided, however, that Seller shall obtain a satisfaction and conditions of this Section 4.1. Purchaser hereby waives release or bond over any right Purchaser may have to advancemonetary liens, as objections to title or as grounds for Purchaser’s refusal to close this transactionincluding, without limitation, any Unpermitted Exception and all mortgages, mechanics' liens (other than monetary liens which are the result of which Purchaser does not notify Buyer's or Buyer's agent's or representative's actions or inactions) and judgment liens (collectively, "Monetary Liens"). Seller within may elect to have any such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date Monetary Liens satisfied out of the Purchase Price at Closing. If Buyer notifies Seller in writing that Buyer has Title CommitmentObjections, and (ii) Purchaser Seller shall notify Seller of the same within have five (5) Business Days business days after receipt of the Title Company Notice to notify Buyer in writing (a) that Seller will use reasonable efforts to remove such Title Objections on or before the Closing; provided that Seller may extend the Closing for such period as shall notify Purchaser of be required to effect such Unpermitted Exception cure, but not beyond thirty (failure 30) days; or (b) that Seller elects not to so notify cause such Title Objections to be removed. In the event Seller fails to give such notice within such five day period, Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement)have elected clause (b) above. Notwithstanding anything to the contrary contained in this AgreementIf Seller gives Buyer notice under clause (b) above, Seller, in its sole discretion, Buyer shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien days (the "Title Decision Date") in which event Escrowee shall, provided to notify Seller that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance Buyer will nevertheless proceed with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), purchase and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept take title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement ofTitle Objections, or credit againstthat Buyer will terminate this Agreement. If this Agreement is terminated pursuant to the foregoing provisions of this paragraph, then neither party shall have any further rights or obligations hereunder (except for any indemnity obligations of Buyer pursuant to the other provisions of this Agreement), the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) Deposit shall be conclusively returned to Buyer and each party shall bear its own costs incurred hereunder. If Buyer shall fail to notify Seller of its election within said five-day period, Buyer shall be deemed to be an election have elected to terminate this Agreement. If Seller gives Buyer notice under clause (iia) aboveabove and, if despite its reasonable efforts to do so, Seller cannot satisfy such objections (other than the Monetary Liens, which shall be satisfied or bonded over by Seller) on or before Closing or, if Seller elects in its sole discretion to extend the Closing, on or before the expiration of such additional thirty (30) day period, Buyer shall have the option to waive its Title Objections and proceed to Closing or terminate this Agreement. Buyer acknowledges that the termination of the transaction pursuant to this section of the Agreement shall not entitle Buyer to receive reimbursement for any expenses or to seek specific performance or any other legal or equitable remedy against Seller.
(dii) IfBuyer may, on at any time prior to Closing, notify Seller in writing (the "Gap Notice") of any objections to title (a) first raised by the Title Company or the surveyor between the expiration of the Study Period and the Closing Dateand (b) not disclosed by the Title Company or the surveyor prior to the expiration of the Study Period, there are or not of a nature that would have been known to Buyer had Buyer performed a survey of the Property or not otherwise actually known to Buyer prior to the expiration of the Study Period; provided that Buyer shall notify Seller of any liens or encumbrances that Seller is obligated such objection to discharge under this Agreementtitle within five (5) days of Buyer's first becoming aware of the existence of such matter. If Buyer sends a Gap Notice to Seller, Buyer and Seller shall have the right same rights and obligations with respect to use such notice and objections to title as apply to
a portion Title Notice under Section 3(a)(i) hereof, and the Closing shall be extended, if necessary, to permit the parties to exercise their respective rights provided therein.
(b) The Property shall be conveyed subject to the following matters, which are hereinafter referred to as the "Permitted Exceptions":
(i) 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;
(ii) 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;
(iii) all items shown on the Commitment and Survey (or if Buyer elects not to conduct a survey which would have been disclosed by a survey) and all items which a visual inspection of the Property would reveal, and all Title Exceptions which are not objected to by Buyer or waived or deemed waived by Buyer in accordance with Section 3(a) hereof;
(iv) the standard or printed exclusions in the form of Title Policy;
(v) any liens, encumbrances, easements or other exceptions or matters voluntarily imposed or consented to by Buyer prior to or as of the Closing and all matters created by or resulting from the acts of Buyer or parties claiming by, through or under Buyer, including those matters arising as a result of Buyer's or its agent's or representative's actions or inactions during the Study Period.
(vi) all of the leases described in the Rent Roll (as hereinafter defined) (the "Existing Leases") and any permitted additions, renewals, and replacements thereof, recorded or unrecorded; and
(vii) rights of parties in possession under the Leases.
(c) At Closing, Seller shall convey and transfer to Buyer fee simple title to the Real Property, by execution and delivery of the special warranty deed. The Title Company shall stand ready to issue a standard ALTA Owner's Policy of Title Insurance (the "Title Policy") covering the Real Property, in the full amount of the Purchase Price to pay and discharge the samePrice, either by way of payment or by alternative manner reasonably satisfactory subject only to the Permitted Exceptions. Buyer shall pay the cost of the Title Policy and all extended coverage and endorsements requested by Buyer and shall pay the cost of the Survey. The Title Company, and the same 's failure to issue such extended coverage or additional endorsements shall not be deemed to be Unpermitted Exceptionsaffect Buyer's obligations under this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Columbia Equity Trust, Inc.)
Title to the Property. (a) As a condition to the Closing Chicago Closing, Riverbend Commercial Title Agency Limited Partnership, as agent for First American Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an a single or two ALTA owner’s title insurance policy (the “Owner’s Policy”) and policies in the standard form issued by the Title Company in the State of CaliforniaOhio, exclusive of any endorsement thereto (the “Owner’s Policy”) subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller Purchaser shall orderhave ordered, at Purchaser’s its sole cost and expense, within five on or before September 9, 2016, (5i) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title CompanyCompany and (ii) a survey of the Property prepared by a surveyor registered in the State of Ohio, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with those true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title CompanyProperty, and the Survey to be delivered to Purchaser and PurchaserSeller’s attorneys concurrently with the delivery thereof to Seller Purchaser or SellerPurchaser’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within by the earlier of (x) ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, or (y) five (5) days prior to the expiration of the Due Diligence Period, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten five (105) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty ninety (6090) days in order to endeavor to eliminate such Unpermitted Exceptions (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection), provided that Seller shall notify Purchaser, in writing, within ten five (105) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding satisfy any mortgage or otherwise) deed of any trust or other monetary liens encumbering lien placed on the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided furtherby, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except through or under those provisions that expressly survive the Closing or a termination of this Agreement)Seller.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five three (53) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to the extent deposited with Escrowee, to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation) to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Title to the Property. (a) As a At the Closing, Seller shall convey to Buyer fee simple title to the Real Property and Improvements, by duly executed and acknowledged grant deed substantially in the form attached hereto as Exhibit A (the "Deed"). A condition to Buyer's obligations under this Agreement shall be the Closing Chicago issuance by First American Title Insurance Company (the “"Title Company”") shall have committed to insure Purchaser as the fee owner Buyer of the Property an ALTA extended coverage Owner's Policy of Title Insurance (Form B, rev. 10/17/70 with Endorsement Form 1 coverage) in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring fee simple title insurance policy (to the “Owner’s Policy”) Real Property and Improvements in the standard form issued by the Title Company in the State of CaliforniaBuyer, subject only to such exceptions as Buyer shall have approved pursuant to Paragraph 4 below (the Permitted Exceptions "Approved Title Exceptions") and without boundary, encroachment or survey exceptions (the "Title Policy"). The Title Policy shall provide full coverage against mechanics' and materialmen's liens and shall contain, to the extent required by Buyer, the CLTA 100 (modified for an owner), 101.4, 103.7, 116, 116.1, 116.4, 116.7 and such other special endorsements as hereinafter definedBuyer may reasonably require, including, without limitation, any endorsements required as a condition to Buyer's approval of any title exceptions pursuant to Paragraph 4 below (the "Endorsements").
(b) At the Closing, Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee transfer title insurance policy or policies with respect to the Tangible Personal Property by a bill xx sale in the form attached hereto as Exhibit B (the “Title Commitment”"Bill xx Sale"), such title to be free of any liens, encumbrances or interests.
(c) At the closing (i) Seller shall transfer title to the Intangible Property, the "Assigned Contracts" (as hereinafter defined) and the "Permits" (as hereinafter defined) by an assignment of intangible property in the form attached hereto as Exhibit C (the "Assignment of Intangible "Property") and (ii) Seller shall transfer title to the Leases by an assignment of Leases in the form attached hereto as Exhibit D (the "Assignment of Leases"), such title in each case to be free of any liens, encumbrances or interests.
(d) Anything contained herein to the contrary notwithstanding and notwithstanding any approval or consent given by Buyer hereunder, except for real estate taxes not yet due or payable, Seller shall cause all mortgages, deeds of trust and other monetary encumbrances, including without limitation all mechanics' liens, to be released and reconveyed from the Title Company, Property on or prior to the Closing and shall cause the Title Commitment, together with those copies of all instruments giving rise Company to any defects or exceptions to insure title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneysas vested in Buyer without any exception for such matters. Purchaser Buyer shall have the right opportunity to order an update review any bond financing affecting the Property during the "Due Diligence Period" (hereafter defined). In the event Buyer elects to Seller’s existing survey or a new survey proceed with the transaction after conducting Buyer's due diligence review of the Property (during the “Updated Survey”). If any exceptions(s) to title to Due Diligence Period, Buyer shall assume the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser current portion of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, bond financing affecting the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) prorated as of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Title to the Property. (a) As a condition to the Closing Chicago Closing, Lawyers Title Insurance Company Corporation, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Title Officer: Xxxxxxx X. Xxxxxxxxx, Telephone (000) 000-0000, Telecopier (000) 000-0000 (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaNew Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller Purchaser shall order, at Purchaser’s its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title CompanyCompany and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with those true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title CompanyProperty, and the Survey to be delivered to Purchaser and PurchaserSeller’s attorneys concurrently with the delivery thereof to Seller Purchaser or SellerPurchaser’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or Attached hereto as Exhibit E is a new survey of the Property notice (the “Updated SurveyTitle Objection Notice”). If any ) identifying those exceptions(s) to title to the Property should appear appearing in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and Purchaser shall provide Seller with written notice (z) zoning matters that were only ascertainable upon delivery of the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, . Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of exception to title, survey or zoning matters which Purchaser does are not notify Seller within such ten (10) day period identified in the Title Objection Notice unless (i) with respect to title objections only (as opposed to survey or zoning matters), such Unpermitted Exception exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after days following the date the exception is first identified by the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty thirty (6030) days in the aggregate (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of any other monetary liens encumbering the Property (other than the Existing Financing) in which are of an ascertainable amount and do not to exceed Ten Twenty Five Thousand and 00/100 Dollars ($10,000.0025,000) in the aggregate provided the removal of such monetary lien shall and are not be the responsibility of any tenant at of the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five three (53) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $100,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Title to the Property. A. At the Closing, Seller shall convey to Buyer fee simple title to the Real Property, the Appurtenances and the Improvements, by duly executed and acknowledged grant deed substantially in the form of attached Exhibit B (a) the "Deed"). As a condition to Buyer's obligation to consummate the Closing purchase of the Property, Chicago Title Insurance Company (the “"Title Company”") shall have be unconditionally committed to insure Purchaser as issue to Buyer an ALTA Owner's Policy of Title Insurance (Form B, rev. 10/17/70) (the fee owner of the Property "Title Policy") in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by or such lower amount as Buyer may determine), at no more than the Title Company Company's standard rates, insuring fee simple title to the Real Property, the Appurtenances and the Improvements in the State of CaliforniaBuyer, subject only to the Loan (if Buyer has not prepaid the Loan) and the Permitted Exceptions set forth on Exhibit C attached hereto. The Title Policy shall provide full coverage against mechanics' and materialmen's liens arising out of the construction, repair or alteration of any of the Improvements including any tenant improvements therein (other than those performed by Buyer) and shall contain such endorsements as hereinafter definedBuyer may reasonably require (the "Endorsements").
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following B. At the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this AgreementClosing, Seller shall not under any circumstance transfer to Buyer all of Seller's right, title and interest in the Personal Property and the Intangible Property (if any) by a Xxxx of Sale and Assignment of Intangible Property in the form attached hereto as Exhibit D (the "Xxxx of Sale"), such right, title and interest, if any, to be required or obligated to cause the cure or removal free of any Unpermitted Exception includingliens, without limitationencumbrances or interests arising by, to bring any action through or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that under Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than any liens held by the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this AgreementLender).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase Agreement (Proxim Corp)
Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure A. Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expenseshall, within five (5) days following after the date hereofEffective Date, order (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”"COMMITMENT"), (ii) from a photocopy of all documents ("TITLE DOCUMENTS") describing all title exceptions shown on the Title CompanyCommitment (the "TITLE EXCEPTIONS"), and shall cause (iii) if Purchaser so elects, an ALTA Land Title Survey of the Title Land (the "SURVEY"). If Purchaser objects to any matters disclosed by the Commitment, together Title Documents or Survey, Purchaser shall furnish Seller with those copies a written statement thereof (the "TITLE NOTICE") prior to expiration of the Study Period (the "TITLE APPROVAL DATE") specifying in detail all instruments giving rise to any defects or exceptions to such title to and survey objections (collectively, the Property that Purchaser receives from "TITLE OBJECTIONS").
B. All matters shown on the Title Company, Commitment and the Survey and all Title Exceptions which are not objected to by Purchaser prior to the Title Approval Date shall be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to "PERMITTED EXCEPTIONS". Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect no obligation to cure any such title objectionTitle Objections noted by Purchaser; provided, provided however, that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller obtain a satisfaction and release or bond over any monetary liens existing as of the Title Objection NoticeClosing Date, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens mortgages (other than the Existing Financing), then mechanics' liens (other than monetary liens which are the result of Purchaser's or Purchaser's agent's or representative's actions or inactions) and judgment liens (collectively, "MONETARY LIENS"). Seller may elect to have any such Monetary Liens satisfied out of the Purchase Price at Closing. If Purchaser notifies Seller in writing that Purchaser has Title Objections, Seller shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following business days after receipt of notice from the Title Notice to notify Purchaser in writing (a) that Seller of its election not will use reasonable efforts to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement Title Objections on or before the Closing Date or (whether or b) that Seller elects not to cause such Title Objections to be removed. In the Closing is adjourned as provided in Section 4.1.1(b))event Seller fails to give such notice within such five day period, Seller shall notify be deemed to have elected clause (b) above. If Seller gives Purchaser that it elects not to remove the samenotice under clause (b) above, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from days (the "TITLE DECISION DATE") in which to notify Seller of its election not that Purchaser will nevertheless proceed with the purchase and take title to remove the Project subject to such Unpermitted ExceptionsTitle Objections, to either (i) or that Purchaser will terminate this Agreement. If this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations terminated pursuant to the foregoing provisions of this Agreementparagraph, return the Deposit to Purchaser and no then neither party hereto shall have any further rights or obligations in connection herewith hereunder (except under those for any indemnity obligations of Purchaser pursuant to the other provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) Deposit shall be conclusively returned to Purchaser and each party shall bear its own costs incurred hereunder. If Purchaser shall fail to notify Seller of its election within said five-day period, Purchaser shall be deemed to be an election have elected to terminate this Agreement. If Seller gives Purchaser notice under clause (iia) above.
above and, if despite its reasonable efforts to do so, Seller cannot satisfy such objections (dother than the Monetary Liens, which shall be satisfied or bonded over by Seller) Ifon or before Closing, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, then Seller shall have the right to use extend the Closing Date for an additional sixty (60) days. If, by such extended Closing Date, Seller can not satisfy such objections (other than the Monetary Liens, which shall be satisfied or bonded over by Seller), then Purchaser shall have the option to waive its Title Objections and proceed to Closing or terminate this Agreement. Notwithstanding anything contained herein to the contrary, Purchaser shall have the option at any time to waive its Title Objections and proceed to Closing.
C. At Closing, the Escrow Agent shall stand ready to issue a portion standard ALTA Owner's Policy of Title Insurance (the "TITLE POLICY") covering the Land and the Improvements, in the full amount of the Purchase Price to pay and discharge the samePrice, either by way of payment or by alternative manner reasonably satisfactory subject only to the Permitted Exceptions. Purchaser shall pay the cost of the Title Company, Policy and all extended coverage and endorsements requested by Purchaser and shall pay the same cost of the Survey. The Escrow Agent's failure to issue such extended coverage or additional endorsements shall not be deemed to be Unpermitted Exceptionsaffect Purchaser's obligations under this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Columbia Equity Trust, Inc.)
Title to the Property. (a) As a condition At Closing, Seller shall convey to the Closing Chicago Title Insurance Company Purchaser by bargain and sale deed, with covenants against grantor’s acts (the “Title CompanyDeed”) shall have committed ), fee simple title to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price Property, insurable at regular rates by issuance of an ALTA owner’s a title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company company licensed to do business in the State of CaliforniaNew Jersey, subject only to the following liens, easements, restrictions, conditions or other encumbrances (hereinafter referred to as the “Permitted Exceptions Encumbrances”):
(a) Such liens, easements, restrictions, conditions or other encumbrances as hereinafter defined).are listed in Exhibit C attached hereto and incorporated herein by this reference;
(b) Seller shall orderGeneral real estate taxes for the year of Closing which are not yet due and payable (subject to adjustment provided in Section 4.1);
(c) Liens for municipal betterments which are assessed after the Effective Date;
(d) Zoning regulations and municipal building restrictions, at Purchaser’s sole cost and expenseall other laws, within five ordinances, regulations and restrictions of any duly constituted public authority enacted prior to the Closing Date provided the current use of the Property complies with same;
(5e) days following Such state of facts as an accurate survey or a physical inspection of the Property may disclose provided such facts do not render title unmarketable;
(f) Other covenants, easements and restrictions which do not materially and adversely affect the use of the Property as permitted by zoning and related ordinances and laws on the date hereof, a commitment as well as grants to utility and/or power companies, the rights of the public in sidewalks and abutting public rights-of-way, and easements given to the public for an owner’s fee water course maintenance, slope rights or sight rights;
(g) Standard exceptions set forth in the form of title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property title insurance company selected by Purchaser; and
(the “Updated Survey”). If any exceptions(sh) to title to the Property should appear in the Title Commitment or the Updated Survey Any other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to matter which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “would constitute a Title Objection Notice”(as defined in Section 3.2) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which that Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent waive pursuant to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objectionfollowing subsections, provided that Seller shall notify Purchaser, a nationally recognized title insurance company authorized to do business in writing, within ten New Jersey agrees (10either at normal rates to be paid by Purchaser or at a special rate to be paid by Seller) days after receipt by Seller that it will insure title free of the such Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding with affirmative insurance against the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, Title Objection against the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hemispherx Biopharma Inc)
Title to the Property. (a) As At the Closing, Seller shall convey to Buyer and Buyer shall accept title to the Property (in fee simple) in accordance with the terms of this Agreement, and Buyer's obligation to accept said title shall be conditioned upon Buyer then being conveyed good and clear record, marketable and insurable title in fee simple to the Real Property, all rights, privileges and easements appurtenant thereto, and to the Improvements, by duly executed and acknowledged special warranty deed. It shall be a condition precedent to Buyer's obligation to close hereunder that the Title Company stands ready to issue, at the Closing Chicago a TLTA standard full coverage form Owner's Policy of Title Insurance Company (with extended coverage and all endorsements reasonably requested by Buyer, insuring Buyer's interest in the “Title Company”) shall have committed to insure Purchaser as Property, dated the fee owner date of the Property Closing, with liability in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaPrice, subject only to the Permitted Exceptions (as hereinafter definedthe "Title Policy"). The Title Policy shall insure against all mechanics' liens and shall have full survey coverage and shall be an extended coverage policy insuring against, among other things, mechanics' liens, easements and claims of parties in possession not shown by the public records with all general and standard exceptions deleted. Seller shall pay the cost of the standard owner's policy. Buyer shall bear the expense for extended coverage and the cost of any endorsements requested by Buyer.
(b) Seller shall orderBuyer shall, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect prior to the Property (the “Title Commitment”) from the Title CompanyApproval Date, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (Buyer's objections to any matters disclosed by the “Commitment, Title Objection Notice”) thereof within ten (10) days after receipt of both Documents or Survey. All matters shown on the Title Commitment and the Updated Survey, Exceptions which are not objected to by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject Buyer prior to the terms and conditions of this Section 4.1Approval Date shall be "Permitted Exceptions". Purchaser hereby waives any right Purchaser may have Seller agrees to advanceuse its best efforts to satisfy such objections noted by Buyer, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless provided that (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be obtain a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfaction and release or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Sellerbond over any monetary liens, in its sole discretiona manner reasonably satisfactory to Buyer, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, any and all mortgages, mechanics' liens and judgment liens (collectively, "Monetary Liens"); and (ii) Seller shall not be obligated to bring any action litigate or proceeding, spend more than $10,000.00 in the aggregate to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception cure non-monetary lien objections or to arrange for title insurance insuring against enforcement seek any cure which cannot be obtained within fifteen (15) days. Seller shall notify Buyer of Seller's proposed actions to satisfy such Unpermitted Exception againstobjections, or collection and shall have up to the Closing Date to satisfy such objections and the Closing Date shall be extended a reasonable period of the same out oftime, the Propertynot to exceed fifteen (15) days, notwithstanding that Seller may have attempted if necessary to allow such cure period. If, despite its best efforts to do so, or may have adjourned the Scheduled Closing Date for Seller cannot satisfy such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property objections (other than the Existing FinancingMonetary Liens, which shall be satisfied or bonded over by Seller) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date expiration of such additional fifteen (whether or not the Closing is adjourned as provided in Section 4.1.1(b))15) day period, Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser Buyer shall have the right, as option to waive its sole remedy for objection(s) to such election of Seller, by delivery of written notice title and/or other defect(s) and proceed to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) Closing or terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided transaction. Buyer acknowledges that Purchaser is not otherwise in default the termination of its obligations the transaction pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion section of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same Agreement shall not be deemed entitle Buyer to be Unpermitted Exceptionsreceive reimbursement for third party expenses or to seek specific performance or any other legal or equitable remedy against Seller.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Ps Business Parks Inc/Ca)
Title to the Property. (a) As a condition Good and marketable fee simple record title to the Closing Chicago Land and Improvements shall be conveyed by Seller to Purchaser by the Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only those matters not objected to by Purchaser as provided below or which, if objected to but not timely cured by Seller, are later accepted by Purchaser pursuant to subsection (e)(iii) below (hereinafter referred to as the “Permitted Exceptions”), and such other matters as may become additional “Permitted Exceptions” as provided herein. Seller has caused Fidelity National Title Insurance Company of New York (the “Title Company”) shall have committed to insure deliver to Purchaser its commitment (hereinafter referred to as the fee owner “Title Commitment”) to issue to Purchaser upon the recording of the Property Deed conveying title to the Land and Improvements from Seller to Purchaser, the payment of the Purchase Price, and the payment to the Title Company of the policy premium therefor, an ALTA owner’s policy of title insurance, in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring good and marketable fee simple record title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Property to be in Purchaser without exception (including any standard exception), except for the Permitted Exceptions (as hereinafter defined)Exceptions.
(b) On December 4, 2003 Purchaser advised Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies in writing of all instruments giving rise to any defects or exceptions to objections affecting the title to the Property that Purchaser receives from and disclosed by the Title CompanyCommitment (the “Initial Title Objection Letter”) and on December 8, 2003 Seller advised Purchaser that Seller has elected to cure those objections set forth in items 1-5 of the section entitled “Schedule B” of the Initial Title Objection Letter and those objections set forth in items 1, and 3 of the Survey section entitled “Tax Search” of the Initial Title Objection Letter (the “Cured Title Matters”). Seller and Purchaser agree that other matters objected to be delivered to Purchaser and Purchaser’s attorneys concurrently with in the delivery thereof to Initial Title Objection Letter were not title matters but legal compliance matters addressed elsewhere in this Agreement. Seller or Seller’s attorneys. Purchaser shall have the right obligation to order an update to Seller’s existing survey remove, satisfy or a new survey of otherwise cure all Cured Title Matters following the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary procedures set forth in this Agreement, subsection (e) below. If Seller shall not under any circumstance be required or obligated fails to cause cure the cure or removal of any Unpermitted Exception including, without limitation, matters objected to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of giving written notice of such termination to Seller within five (5) Business Days following receipt Seller, whereupon Escrow Agent shall promptly refund all Xxxxxxx Money to Purchaser in accordance with the terms of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this the Escrow Agreement, return the Deposit to and Purchaser and no party hereto Seller shall have any no further obligations in connection herewith rights, obligations, or liabilities hereunder, except under those provisions that as may be expressly survive provided to the Closing or a termination of this Agreement)contrary herein.
(c) In the event that Seller is unablePurchaser shall, or elects notshall cause Title Company, to eliminate provide to Seller’s counsel any update to the Title Commitment issued by the Title Company on or prior to the date of Closing (each an “Update”). If any Update discloses one or more new defects or objections to title to which the Purchaser objects, then Purchaser shall give written notice to Seller on or prior to the tenth (10th) day after the date upon which Purchaser receives the Update first containing such new defect or objection (but in any event not later than the Closing). Within ten (10) days after receipt of Purchaser’s notice of objection, but in any event not later than the Closing, Seller shall give written notice to Purchaser informing Purchaser of Sellers’ election with respect to such defects and objections. If Seller fails to give written notice of election within such ten (10) day period, or, in any event, prior to Closing, Seller shall be deemed to have elected to attempt to cure the matters objected to. If Seller elects not to attempt to cure the matters objected to then Purchaser shall have the right to terminate this Agreement by giving written notice of such termination to Seller, whereupon Escrow Agent shall promptly refund all Unpermitted Exceptions Xxxxxxx Money to Purchaser in accordance with the provisions terms of this Section 4.1.1the Escrow Agreement, and Purchaser and Seller shall have no further rights, obligations, or liabilities hereunder, except as may be expressly provided to arrange for title insurancethe contrary herein. If Seller elects or is deemed to have elected to cure the matters objected to, without special premium then the parties shall follow the procedures set forth in subsection (e) below.
(d) Prior to Purchaserthe effective date, insuring against enforcement Purchaser ordered a survey of such Unpermitted Exceptions against, or collection the Property (the “Survey”). Purchaser shall provide a copy of the survey to Seller upon receipt of the same out ofby Purchaser. If the Survey discloses any encroachments, protrusions, defects or objections affecting the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property or the use thereof to which the Purchaser objects, then Purchaser shall give written notice to Seller on or prior to the tenth (10th) day after the date upon which Purchaser receives the Survey (but in any event not later than the Closing). Within ten (10) days after receipt of Purchaser’s notice of objection, but in any event not later than the Closing) Seller shall give written notice to Purchaser informing Purchaser of Sellers’ election with respect to such encroachments, protrusions, defects or objections. If Seller fails to give written notice of election within such ten (10) day period, or, in any event, prior to Closing, Seller shall be deemed to have elected to attempt to cure the matters objected to. If Seller elects not to attempt to cure the matters objected to then Purchaser shall have the right to terminate this Agreement by giving written notice of such termination to Seller, whereupon Escrow Agent shall promptly refund all Xxxxxxx Money to Purchaser in accordance with the terms of the Escrow Agreement, and Purchaser and Seller shall have no further rights, obligations, or liabilities hereunder, except as may be expressly provided to the contrary herein. If Seller elects to cure the matters objected to, then the parties shall follow the procedures set forth in subsection (e) below.
(e) If Seller elects or is deemed to have elected to cure such defects or objections, then Seller shall have until the date of Closing to remove, obtain affirmative insurance from the Title Company, acceptable to Purchaser in Purchaser’s reasonable discretion and so long as all matters insured over with affirmative coverage do not, in the aggregate, exceed $500,000.00 (“Acceptable Affirmative Coverage”), satisfy or cure such defects or objections. If Seller fails to remove, provide Acceptable Affirmative Coverage, satisfy or cure such defects or objections by Closing, then, at the option of Purchaser: (i) if any such defects or objections were caused by Seller or if any such defects or objections consist of taxes, mortgages or other such monetary encumbrances, other than mechanic’s or materialman’s liens of Tenants, Purchaser shall have the right, provided Purchaser has not rejected Acceptable Affirmative Coverage, to cure such defects or objections, in which event the Purchase Price payable pursuant to paragraph 2 hereof shall be reduced by an amount equal to the costs and expenses incurred by Purchaser in connection with the curing of such defects or objections, and upon such curing, the Closing hereof shall proceed in accordance with the terms of this Agreement on Agreement; or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event ii) Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice right to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by giving written notice delivered of such termination to Seller (Seller, whereupon Escrow Agent shall promptly refund all Xxxxxxx Money to Purchaser in which event Escrowee shall, provided that Purchaser is not otherwise in default accordance with the terms of its obligations pursuant to this the Escrow Agreement, return the Deposit to and Purchaser and no party hereto Seller shall have any no further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)rights, obligations, or liabilities hereunder, except as may be expressly provided to the contrary herein; (iiiii) Purchaser shall have the right to accept title to the Property subject to such Unpermitted Exception(s) without a defects and objections with no reduction in, abatement of, or credit against, in the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) , in which event such defects and objections shall be conclusively deemed “Permitted Exceptions”; or (iv) Purchaser may elect to be an election under clause (ii) above.
(d) If, on extend the Closing Date, there are any liens or encumbrances that for ten (10) days in order to allow Seller is obligated additional time to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay satisfy such defects and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptionsobjections.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Title to the Property. (a) As a condition SELLER agrees to convey good, valid and insurable fee simple title to the Closing Chicago Title Insurance Company (Property and Purchaser agrees to purchase the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of Californiasame, subject only to the Permitted Title Exceptions (as hereinafter defined)):
(a) [Intentionally omitted].
(b) Seller shall order, at Purchaser’s sole cost promptly order a title commitment (the "Title Commitment") from Fidelity National Title Insurance Company (the "Title Company") and expense, shall deliver same to Purchaser within five fifteen (515) days following after the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneysEffective Date. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(si) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after following receipt of both the Title Commitment and a survey (the Updated "Survey") covering the Property (but in no event later than the expiration of the Approval Period), and (ii) within three (3) days of receipt of any update to the Title Commitment or the Survey and only with respect to an exception, matter or item first appearing on such update (but not later than the Closing Date), deliver written notice (a "Title Notice") to Seller setting forth any liens or encumbrances affecting, or other defects in or objections to, title to the Property, or any matters set forth on the Survey, by Purchaser’s attorneys, Seller, that are not satisfactory to Purchaser in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1judgment ("Purchaser's Objections"). Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of Any exceptions appearing on the Title Commitment, and any matters noted on the Survey, and not objected to by Purchaser in accordance with this Subsection 3.01(b) shall be deemed "Permitted Title Exceptions".
(iic) If Purchaser shall notify notifies Seller of the same Purchaser's Objections pursuant to a Title Notice delivered in accordance with Section 3.01(b) above, Seller shall have no obligation to remove any of Purchaser's Objections (other than Liens (as hereinafter defined)). Seller shall respond in writing to any Title Notice timely given by Purchaser within five (5) Business Days after the Title Company shall notify Purchaser business days of Seller's receipt of such Unpermitted Exception (failure Title Notice, disclosing whether or not Seller will attempt to so notify Seller cure any Purchaser's Objections, provided that Seller's decision to attempt to cure shall not be deemed to obligate Seller to accomplish same. Seller's failure to remove Purchaser's Objections (other than Liens) shall not be a waiver by Purchaser default on Seller's part, but shall be an inability to perform within the meaning of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this AgreementSection 12.01(b). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn If Seller has not removed Purchaser's Objections as of the Closing for a period not to exceed sixty Date (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted despite Seller's reasonable efforts to do so, which shall not include an obligation on the part of Seller to institute litigation or may have adjourned otherwise incur more than diminimis costs, except for the Scheduled Closing Date for removal of Liens and other monetary liens up to the Cure Limit (as such purpose; provided, howeverterms are defined below)), Seller shall cause the removal (so notify Purchaser in writing. If such written notice is given by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided furtherSeller, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right either elect (i) to terminate this Agreement by delivery of giving written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the sameSeller, in which event Purchaser the provisions of Section 12.01(b) shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)apply, or (ii) to perform all of Purchaser's obligations hereunder and accept title to the Property subject to such Unpermitted Exception(s) uncured Purchaser's Objections without a reduction in, any abatement of, or credit against, of the Purchase PricePrice or liability on the part of Seller. The failure Purchaser shall make its election between clauses (i) and (ii) of Purchaser to deliver timely any the immediately preceding sentence by written notice to Seller given not later than 5:00 P.M. Eastern Standard time on the third (3rd) business day after the giving of election under this Section 4.1.1(c) the written notice by Seller that it has not cured any Purchaser's Objection, but in no event later than the Closing Date. If Purchaser shall fail to give such written notice as aforesaid, it shall be conclusively deemed to be an election under have elected clause (iii) above.
(d) IfNotwithstanding the foregoing provisions of this Section 3.01 to the contrary, Seller, at Seller's sole cost and expense, shall be required to remove or to cause to be removed of record at or prior to the Closing the following (collectively, the "Liens"): (i) the lien of any mortgage which encumbers the Property as of the date of the Closing; (ii) any liens which Seller places or allows to be placed on the Closing DateProperty other than liens placed on the Property by Garden Ridge unless liens to which Seller did consent, there are including mechanics liens and judgments; and (iii) any other liens or encumbrances that against the Property which can be cured by the payment of money in liquidated amounts not exceeding the sum of $100,000.00 (the "Cure Limit"). If Seller is obligated elects not to discharge under this Agreementremove liens or encumbrances which exceed the Cure Limit, as specified in clause (iii) of the preceding sentence, Purchaser may nevertheless accept such title as Seller can convey, in which event Purchaser shall have the right be entitled to use a portion of reduction in the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory in an amount equal to the Title Company, and the same shall not be deemed to be Unpermitted ExceptionsCure Limit.
Appears in 1 contract
Title to the Property. (a) As The Title Policy issued to Buyer pursuant to Section 3 of the Agreement, shall provide full coverage against mechanics’ and materialmen’s liens and shall contain such special endorsements as Buyer may reasonably require, including, without limitation, any endorsements required as a condition to the Closing Chicago Title Insurance Company Buyer’s approval of any title exceptions (the “Title CompanyEndorsements”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within . Within five (5) business days following the date hereofEffective Date, Seller shall order the issuance of a commitment for an owner’s fee preliminary title insurance policy or policies report with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title CommitmentProperty, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, underlying documents referenced therein and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey map containing a plotting of the Property all easements capable of being plotted (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted ExceptionsPreliminary Report”), subject to which Purchaser is unwilling be prepared by the Escrow Holder and delivered to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within Buyer. No later than ten (10) days after receipt of both the Title Commitment and Preliminary Report, Buyer shall give written notice to Seller of any items contained in the Updated Survey, by PurchaserPreliminary Report which Buyer disapproves (“Buyer’s attorneys, Seller, in its sole and absolute discretion, may undertake Disapproval Notice”). Failure of Buyer to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of Xxxxx’s disapproval of all or any item on the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller Preliminary Report shall be deemed to be a waiver an approval by Purchaser Buyer of its right such item(s). In any event, Seller covenants to raise such Unpermitted Exception remove as an objection exceptions to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything prior to the contrary contained in this AgreementClosing, Sellerany mortgages, in its sole discretiondeeds of trust, shall have the right to adjourn the Closing for a period not to exceed sixty and other monetary encumbrances (60) days (such period of time being herein called the collectively, “Extension PeriodDisapproved Liens”) should Seller elect to cure any such title objection, provided that shown on the Preliminary Report except for real property taxes not delinquent. Seller shall notify Purchaser, in writing, within ten Buyer no later than five (105) days after receipt by Seller of the Title Objection Notice, Xxxxx’s Disapproval Notice whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)other items disapproved by Buyer.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Title to the Property. (a) As a condition to the Closing Chicago Closing, First American Title Insurance Company (in its capacity as title insurer, the “Title Company”) shall have be irrevocably bound and committed to insure Purchaser as the fee owner of the Real Property in the amount of the Purchase Price by issuance of an ALTA a CLTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, California subject only to the “Permitted Exceptions Exceptions” (as hereinafter defined). It is understood that Purchaser may, at its own cost, obtain a Survey (as defined below) and request extended coverage, including a number of endorsements to the Owner’s Policy during the Due Diligence Period. Purchaser shall satisfy itself prior to the expiration of the Due Diligence Period that the Title Company will be willing to issue such extended coverage and endorsements at Closing; however, the issuance of such extended coverage and endorsements shall not be a condition to Closing for Purchaser’s benefit unless the Title Company has given Purchaser (with a copy to Seller) its written commitment to issue such extended coverage and endorsements prior to the expiration of the Due Diligence Period. Seller shall execute a standard owner’s affidavit reasonably acceptable to the Title Company in connection with the Title Company’s issuance of the Owner’s Policy.
(b) Seller shall order, at Purchaser’s sole cost and expense, deliver to Purchaser within five (5) days following the date hereof, hereof a commitment for an owner’s fee copy of a preliminary title insurance policy or policies report with respect to the Real Property (the “Preliminary Title CommitmentReport”) from the Title Company, and shall cause the Title Commitment, together with those legible copies of all instruments giving rise to any defects or each of the title exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneysnoted therein. Purchaser shall have the right to order may, at its own expense, obtain an update to Seller’s existing survey or a new survey ALTA/ASCM Survey of the Real Property (the “Updated Survey”)) during the Due Diligence Period. If any exceptions(s) to title to the Real Property should appear in the Preliminary Title Commitment Report or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten not less than five (105) days after receipt Business Days (or in the case of both any such exceptions that appear only on the Title Commitment and the Updated Survey, by Purchaser’s attorneystwo (2) Business Days) prior to the expiration of the Due Diligence Period , Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not fails to notify Seller within such ten not less than five (105) day period Business Days prior to the expiration of the Due Diligence Period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Preliminary Title CommitmentReport, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right right, upon written notice to Purchaser at least three (3) Business Days prior to the Scheduled Closing Date, to adjourn the Scheduled Closing Date for a period not up to exceed sixty thirty (6030) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objectiondays, provided that Seller shall notify Purchaser, in writing, within ten three (103) days Business Days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions, and if Seller fails to notify Purchaser within such three (3) Business Day period, Seller shall be deemed to have elected not to cure such Unpermitted Exceptions. Notwithstanding Except as set forth below, notwithstanding the foregoing or anything to the contrary set forth in this Agreementherein, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, notwithstanding the foregoing, Seller shall cause the removal (by bonding A) satisfy any mortgage or otherwise) deed of any monetary liens encumbering trust placed on the Property (by Seller or any other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be created by Seller and (B) not, after the responsibility of date hereof, create any tenant at exception which encumbers title to the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of Property without Purchaser’s prior written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)consent.
(c) In the event that If Seller is unable, elects not or elects is deemed to elect not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without insurance or special premium to Purchaser, endorsements insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Real Property in accordance with the terms of this Agreement herein on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), then Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five two (52) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, shall return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those obligations, liabilities and provisions that expressly survive the Closing or a termination of this AgreementAgreement (collectively, the “Surviving Obligations”)), or (ii) accept title to the Real Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, then Seller shall have the right (but not the obligation) to use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Contract of Purchase and Sale (Hines Global Reit Ii, Inc.)
Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company (as defined in Section 5) a title insurance company licensed to do business in New York State (collectively, the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA (1992 form) owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller Purchaser received a commitment No. NY041505 (the “Title Commitment”) for an owner’s fee title insurance policy with respect to the Property from Commonwealth Land Title Insurance Company (the “Title Company”), a copy of which has been delivered to Seller’s counsel. Purchaser has not completed its review of the Title Commitment and Purchaser shall order, at Purchaser’s its sole cost and expense, within five (5) days Business Days following the date hereofof execution and delivery by both parties of this Agreement, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Company to deliver an updated version of the Title Commitment (the “Updated Title Commitment”), together with those with, to the extent not previously delivered, true, legible (to the extent available) and complete copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title CompanyProperty, and the Survey to be delivered to Purchaser and PurchaserSeller’s attorneys concurrently with delivery of the delivery thereof Updated Title Commitment to Seller Purchaser or SellerPurchaser’s attorneys. If Purchaser shall have the right should object to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should which appear in either the Title Commitment or the Updated Survey Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten fifteen (1015) days after receipt of both the Updated Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten fifteen (1015) day period pursuant to the Title Objection Notice unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Updated Title CommitmentCommitment by a commitment modification accompanied by legible (to the extent available) and complete copies of instruments giving rise to the Unpermitted Exception, and (ii) Purchaser shall notify Seller of the same within five seven (57) Business Days days after the Title Company shall notify Purchaser Purchaser’s counsel of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned obtained an adjournment of the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal shall, on or before Closing, satisfy any mortgage or deed of trust or other lien or security instrument (by bonding or otherwiseincluding oustanding UCC Statements) of any monetary liens encumbering placed on the Property (by Seller or any other than matter voluntarily created by Seller after the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)date hereof.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, shall return the Deposit Deposit, to Purchaser together with the Termination Fee referred to in Section 4.2.2 hereof, subject to satisfaction of the conditions set forth in such Section, and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, an abatement of, in or credit against, against the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation) to use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Contract of Sale (Atlantic Express Transportation Corp)
Title to the Property. (a) As a condition At the Closing, Highwoods shall deliver to the Closing Distributees a limited warranty deed in form and content satisfactory to the Distributees’ counsel with transfer tax, if any, paid at Highwoods’ expense, conveying to the Distributees a good, indefeasible, fee simple title to the Land, its appurtenances and Improvements, said title to be insurable both as to fee and marketability at regular rates by Chicago Title Insurance Company (the “Title Company”), subject only to those matters enumerated in Section 5(b)(i)-(vi) shall have committed below (“Permitted Exceptions”). Prior to insure Purchaser as the fee owner end of the Property in Review Period, the amount of Distributees shall procure from HPI Title Agency, LLC, at the Purchase Price by issuance of an ALTA owner’s Distributees’ cost, a current title commitment for title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in showing the State condition of California, subject only title to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall orderLand, at Purchaser’s sole cost its appurtenances and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property Improvements (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated SurveyReport”). If any exceptions(s) to title If, prior to the Property should appear end of the Review Period, the Distributees disapproves of any matter of title contained in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectivelyReport, the Distributees may then elect to provide written notice of the Distributees’ disapproval of the same to Highwoods (those disapproved title matters as so identified by the Distributees are hereinafter called the “Unpermitted Disapproved Exceptions”). Highwoods agrees to commit its commercially reasonable efforts to remove any Disapproved Exception, provided the cost thereof does not exceed Twenty-Five Thousand and No/100 Dollars ($25,000). However, in the event that as provided in Sections 4(a) and (d) above, the Distributees proceed to and consummate the Closing subject to which Purchaser is unwilling to accept titlea Disapproved Exception, and Purchaser such Disapproved Exception shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall then be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement)Permitted Exception. Notwithstanding anything to the contrary contained Any expenses incurred in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any obtaining such title objection, provided that Seller shall notify Purchaser, in writing, within ten insurance commitment (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, those incurred by an attorney in conducting the necessary title search) shall be borne by the Distributees. The title insurance premium for the title insurance policy issued by the Title Company pursuant to bring the title commitment (the “Title Policy”) shall be borne by the Distributees. The Title Policy shall provide full coverage against mechanics’ or materialmen’s liens, shall commit full survey coverage (if the Distributees procure a Survey of the Land) and such other coverages and endorsements as shall be reasonably required by the Distributees. If the Distributees request any endorsements to the Title Policy, the Distributees will be responsible for the cost attributable thereto. The Distributees may, at or prior to Closing, notify Highwoods in writing (the “Gap Notice”) of any objections to title raised by the Distributees’ Counsel or the Title Company between the issuance of the Title Report and the Closing, which did not exist as of the date of the issuance of the Title Report (“New Encumbrances”). If the Distributees send a Gap Notice to Highwoods, but the New Encumbrance is the result of some act that is beyond the control of Highwoods, then the Distributees and Highwoods shall have the same rights and obligations with respect to such notice as apply to a Disapproved Exception under Sections 5(a) and 5(b) hereof. However, in the event the New Encumbrance results from any action or proceedingomission of Highwoods (with the exception of New Encumbrances which can be cured by a monetary payment which the Distributees have, and shall have, the absolute right of making such payment and reducing by a like amount the value of the Distributees’ capital interest in Highwoods, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement be reduced as a result of such Unpermitted Exception against, or collection of the same out ofthis transaction), the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller Distributees shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right entitled to terminate this Agreement Agreement, receive a refund of the Binder Deposit, and reimbursement from Highwoods of the costs, fees and expenses incurred by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant the Distributees related to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted ExceptionsProperty.
Appears in 1 contract
Title to the Property. (a) As a condition At the Closing, Highwoods shall deliver to the Closing Distributees a limited warranty deed in form and content satisfactory to the Distributees’ counsel with transfer tax, if any, paid at Highwoods’ expense, conveying to the Distributees a good, indefeasible, fee simple title to the Land, its appurtenances and Improvements, said title to be insurable both as to fee and marketability at regular rates by Chicago Title Insurance Company (the “Title Company”), subject only to those matters enumerated in Section 5(b)(i)-(vi) shall have committed below (“Permitted Exceptions”). Prior to insure Purchaser as the fee owner end of the Property in Review Period, the amount of Distributees shall procure from HPI Title Agency, LLC, at the Purchase Price by issuance of an ALTA owner’s Distributees’ cost, a current title commitment for title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in showing the State condition of California, subject only title to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall orderLand, at Purchaser’s sole cost its appurtenances and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property Improvements (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated SurveyReport”). If any exceptions(s) to title If, prior to the Property should appear end of the Review Period, the Distributees disapproves of any matter of title contained in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectivelyReport, the Distributees may then elect to provide written notice of the Distributees’ disapproval of the same to Highwoods (those disapproved title matters as so identified by the Distributees are hereinafter called the “Unpermitted Disapproved Exceptions”). Highwoods agrees to commit its commercially reasonable efforts to remove any Disapproved Exception, provided the cost thereof does not exceed Twenty-Five Thousand and No/100 Dollars ($25,000). However, in the event that as provided in Sections 4(a) and (d) above, the Distributees proceed to and consummate the Closing subject to which Purchaser is unwilling to accept titlea Disapproved Exception, and Purchaser such Disapproved Exception shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall then be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement)Permitted Exception. Notwithstanding anything to the contrary contained Any expenses incurred in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any obtaining such title objection, provided that Seller shall notify Purchaser, in writing, within ten insurance commitment (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, those incurred by an attorney in conducting the necessary title search) shall be borne by the Distributees. The title insurance premium for the title insurance policy issued by the Title Company pursuant to bring the title commitment (the “Title Policy”) shall be borne by the Distributees. The Title Policy shall provide full coverage against mechanics’ or materialmen’s liens, shall commit full survey coverage (if the Distributees procure a Survey of the Land) and such other coverages and endorsements as shall be reasonably required by the Distributees. If the Distributees request any endorsements to the Title Policy, the Distributees will be responsible for the cost attributable thereto. The Distributees may, at or prior to Closing, notify Highwoods in writing (the “Gap Notice”) of any objections to title raised by the Distributees’ Counsel or the Title Company between the issuance of the Title Report and the Closing, which did not exist as of the date of the issuance of the Title Report (“New Encumbrances”). If the Distributees sends a Gap Notice to Highwoods, but the New Encumbrance is the result of some act that is beyond the control of Highwoods, then the Distributees and Highwoods shall have the same rights and obligations with respect to such notice as apply to a Disapproved Exception under Sections 5(a) and 5(b) hereof. However, in the event the New Encumbrance results from any action or proceedingomission of Highwoods (with the exception of New Encumbrances which can be cured by a monetary payment which the Distributees have, and shall have, the absolute right of making such payment and reducing by a like amount the value of the Distributees’ capital interest in Highwoods, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement be reduced as a result of such Unpermitted Exception against, or collection of the same out ofthis transaction), the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller Distributees shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right entitled to terminate this Agreement Agreement, receive a refund of the Binder Deposit, and reimbursement from Highwoods of the costs, fees and expenses incurred by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant the Distributees related to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted ExceptionsProperty.
Appears in 1 contract
Title to the Property. (a) As Purchaser acknowledges that it has been furnished with a condition to the Closing Chicago title report dated July 13, 1996 (Title No.: 135-NYNY-18225) issued by First American Title Insurance Company of New York (the “"Title Company”) "). Promptly following execution and delivery of this Agreement, Purchaser shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by instruct the Title Company in to update title, conduct departmental searches and to deliver copies thereof, as well as any further continuations and supplements thereto, directly to Seller (collectively, the State of California, subject only to the Permitted Exceptions (as hereinafter defined"Title Report").
(b) Purchaser shall accept title to the Property subject only to the matters set forth on Exhibit C (collectively, the "Permitted Exceptions") and other matters expressly permitted pursuant to this Agreement or otherwise approved by Purchaser in writing .
(c) Seller shall order, at Purchaser’s sole cost and expense, within five be entitled to reasonable adjournments of the Closing (5not to exceed in the aggregate thirty (30) days following the date hereoflast day of any period of adjournment elected by Purchaser pursuant to Section 2.01(b)) during which Seller may attempt to remove any liens or encumbrances affecting, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Companyother defects in or objections to, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from disclosed by the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey Report other than the those that constitute Permitted Exceptions (such exception(s) being herein called"Additional Exceptions"); provided, collectivelyhowever, the “Unpermitted Exceptions”)that, subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, except as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreementthe next succeeding sentence, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make or take any payments steps, or otherwise to incur any expense to remove any Additional Exception. Seller shall have the obligation to cure those Additional Exceptions that (i) constitute liens, mortgages, judgments and similar encumbrances that can be removed of record solely by the payment of a sum of money ("Monetary Additional Exceptions"), but only so long as the aggregate amount to be expended pursuant to this clause does not exceed eighty (80%) percent of the Purchase Price, (ii) can be cured and removed of record (or insured against collection) by the expenditure of sums of money not to exceed, individually or in order the aggregate, twenty (20%) percent of the Purchase Price ("Non-Monetary Additional Exceptions") or (iii) were otherwise caused by the affirmative act of Fee Owner or Net Lessee ("Seller's Acts Exceptions"). Without limiting the obligations of Seller as set forth in the immediately preceding sentence, Purchaser shall notify Seller in writing of the existence of any Additional Exception promptly after the discovery thereof by Purchaser. If for any reason Seller is unable or unwilling to eliminate remove any Unpermitted Exception Additional Exceptions (other than Monetary Additional Exceptions (so long as the aggregate amount in respect thereof does not exceed eighty (80%) percent of the Purchase Price) or to arrange for title insurance insuring against enforcement of such Unpermitted Exception againstSeller's Acts Exceptions, or collection Non-Monetary Additional Exceptions by expending up to twenty (20%) percent of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date Purchase Price for such purpose; provided) as of the Closing Date, howeveras such date may be adjourned pursuant to this Section 3.01(c), Seller shall cause the removal so notify Purchaser. If such notice is given by Seller, Purchaser, at its option, shall elect either (by bonding or otherwisei) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of giving written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the sameSeller, in which event Purchaser Seller shall have the right, as its sole remedy for such election of Seller, by delivery of written notice be deemed unable to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of perform its obligations pursuant to this Agreement, return hereunder and the Deposit to Purchaser and no party hereto provisions of Section 13.01(b) shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)apply, or (ii) to perform all of Purchaser's obligations hereunder and accept title to the Property subject to such Unpermitted Exception(suncured Additional Exceptions (other than Monetary Additional Exceptions and Seller's Acts Exceptions, or Non-Monetary Additional Exceptions by expending up to twenty (20%) of the Purchase Price for such purpose) without a reduction inany abatement of the Purchase Price or liability on the part of Seller, abatement ofin which event such Additional Exceptions shall thereafter be deemed Permitted Exceptions; provided, however, that, if the amount required to be expended by Seller to cure Monetary Additional Exceptions shall exceed in the aggregate eighty (80%) percent of the Purchase Price or credit against, to cure Non-Monetary Additional Exceptions shall exceed in the aggregate twenty (20%) percent of the Purchase Price, then Purchaser shall be entitled to an abatement of the Purchase Price to the extent of the amount by which Monetary Exceptions shall exceed eighty (80%) percent of the Purchase Price or the cure of Non-Monetary Exceptions shall exceed twenty (20%) percent of the Purchase Price (or both, except that the Purchase Price shall never be less than zero) if Seller fails to cure such Exception(s) to the extent the cost to cure exceeds the applicable amount(s). The failure Purchaser shall make its election between clauses (i) and (ii) of Purchaser to deliver timely any the immediately preceding sentence by written notice to Seller given not later than 5:00 P.M. on the tenth (10th) business day after the giving of election under this Section 4.1.1(cnotice by Seller of its inability or unwillingness to remove any such Additional Exception. If there are fewer than ten (10) days between the date of Seller's notice and the Closing Date, the Closing shall automatically be extended until such tenth (10th) business day. If Purchaser shall fail to give such written notice as aforesaid, Purchaser shall conclusively be deemed to be an election under have elected clause (ii) above.
(d) IfSeller may direct Purchaser, on by notice to Purchaser not less than three (3) business days prior to the Closing DateClosing, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have pay from the right to use a portion balance of the Purchase Price as much thereof as may be necessary to pay satisfy any Monetary Additional Exception or Non- Monetary Additional Exception; provided that Seller shall deliver to Purchaser at the Closing instruments in recordable form sufficient to satisfy such Exceptions, together with the cost of recording or filing said instruments, and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to make arrangements with the Title CompanyCompany to issue its policy of title insurance either free of such Exceptions or with insurance against enforcement of the same against the Property. Purchaser agrees to provide at the Closing separate certified checks, if so requested by Seller as aforesaid, to facilitate the satisfaction of any such Exceptions. At Purchaser's option, Seller will request that the mortgagee under any mortgage encumbering the Property assign such mortgage (without recourse) as Purchaser may direct in writing, and the same shall not be deemed Seller will at Purchaser's cost reasonably cooperate with Purchaser to be Unpermitted Exceptionsseek such mortgagee's cooperation to assign.
Appears in 1 contract
Title to the Property. (a) As a condition to the Closing Closing, and subject only to delivery of the title premium and the documents contemplated herein, Chicago Title Insurance Company (the “Title Company”) shall have unconditionally committed to insure Purchaser as the fee owner of the Property Fee Simple Land and the lessee of the Ground Lease Land in the amount of the Purchase Price by issuance of an ALTA ownera standard American Land Title Association Owner’s title insurance policy Policy of Title Insurance Form 10/17/92 (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined). Owner’s and lender’s title insurance coverage must be underwritten by and through Chicago Title Insurance Company, Atlanta, Georgia, National Business Unit, pursuant to the “Title Commitment” referred to in Section 4.1.1(b) of this Agreement.
(b) Seller shall orderPurchaser acknowledges receipt of the Commitment for Title Insurance, at Purchaser’s sole cost and expenseCommitment-File Number 90501467, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property revised 4/2/06 (the “Title Commitment”), issued by Chicago Title Insurance Company with an effective date of December 13, 2005, at 8:00 A.M. (the “Title Commitment Effective Date”) from the Title Company, and shall cause the Title Commitment, together with those as well as copies of all instruments giving rise to any the defects or exceptions to title to the Property that Purchaser receives from noted in the Title CompanyCommitment. All exceptions shown on the Title Commitment are Permitted Exceptions. As of the Title Commitment Effective Date, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall be deemed to have approved the right to order an update to Seller’s existing survey or a new survey of exceptions shown on the Property (Title Commitment other than the “Updated Survey”)standard” exceptions. If any Any exceptions(s) to title to the Property should which first appear in of record or on any updated Title Commitment after the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein calledEffective Date are hereinafter referred to, collectively, as the “Unpermitted Exceptions”)” and each, individually, as an “Unpermitted Exception.” If there are any Unpermitted Exceptions subject to which Purchaser is unwilling to accept title, and Purchaser shall provide provides Seller with written notice (the “Title Objection Notice”) thereof (which Title Objection Notice must specify Purchaser’s objection or objections in reasonable detail) within ten five (105) days after receipt of both the Title Commitment and Company shall notify Purchaser of such Unpermitted Exception (but, in any event, on or before the Updated Survey, by Purchaser’s attorneysClosing Date), Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the day period by submittal of a Title Company shall notify Purchaser of such Unpermitted Exception Objection Notice (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period ending not to exceed sixty (60) days later than July 28, 2006 (such period of time being herein called the “Extension Period”) should ), to allow Seller elect additional time to cure any endeavor to eliminate such title objectionUnpermitted Exceptions with respect to which Purchaser has timely submitted a Title Objection Notice, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the applicable Title Objection Notice, whether or not that it will endeavor to eliminate such Unpermitted Exceptions. If Seller fails to notify Purchaser within such ten (10) day period that Seller has elected to exercise its right pursuant to the immediately preceding sentence to adjourn the Closing for the Extension Period, Seller shall be deemed to have elected not to exercise its right to adjourn the Closing for the Extension Period. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned obtained an adjournment of the Scheduled Closing Date for such purpose; provided, however, Seller shall cause satisfy: (i) any mortgage, deed to secure debt or deed of trust placed on the removal Property by Seller; and (by bonding or otherwiseii) of any monetary liens encumbering the Property (arising by, through or under Seller. If the Closing is not consummated for any reason other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided furthera default by Seller hereunder, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have be responsible for any further obligations in connection herewith except under those provisions that expressly survive the Closing title or a termination of this Agreement)escrow cancellation charges.
(c) In If Purchaser provides a Title Objection Notice with respect to any Unpermitted Exceptions, the event that procurement by Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (shall be deemed to be an elimination of such Unpermitted Exceptions. In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions with respect to which title insurance must be satisfactory to Purchaser has timely provided a Title Objection Notice in its reasonable discretion), accordance with the provisions of this Section 4.1.1 and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date ([whether or not the Closing is adjourned as provided in Section 4.1.1(b))], Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five three (53) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, shall return the Deposit Deposit, and all interest earned thereon, to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, an abatement of, in or credit against, against the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation) to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
(e) Seller shall have no obligation to provide any indemnity or agreement to the Title Company or Purchaser to support the issuance of the Owner’s Policy or any “Purchaser Requested Title Endorsements” (as hereinafter defined) other than the “Title Affidavits” (as hereinafter defined).
Appears in 1 contract
Samples: Contract of Sale (Hines Real Estate Investment Trust Inc)
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer indefeasible and insurable fee simple title to the Real Property and Improvements, by duly executed and acknowledged special warranty deed substantially in the form attached hereto as Exhibit C (the "Deed"). Evidence of delivery of indefeasible and insurable fee simple title shall be the issuance by Texas Professional Title, Inc. (the "Title Company") to Buyer at the Closing Chicago of an Owner's Policy of Title Insurance Company (in the “Title Company”) shall have committed to insure Purchaser as form promulgated by the fee owner Texas State Board of the Property Insurance in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in at no more than the standard form issued rates allowed by the Title Company Texas Department of Insurance, insuring fee simple title to the Real Property in the State of CaliforniaBuyer, subject only to such exceptions as Buyer shall approve pursuant to Paragraph 5, below (the Permitted Exceptions "Title Policy"). The Title Policy shall provide full coverage against mechanics' and materialmen's liens, the printed form survey exception shall be limited to "shortages in area" and the standard exception for taxes shall read: "standby fees and taxes for the year 1998 and subsequent years, and subsequent assessments for prior years due to change in land usage or ownership" and shall contain such special endorsements as Buyer may reasonably require, including, without limitation, any endorsements required as a condition to Buyer's approval of any title exceptions pursuant to Paragraph 5, below (as hereinafter definedthe "Endorsements").
(b) At the Closing, Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to transfer title to the Tangible Personal Property that Purchaser receives from by a special warranty bill xx sale in the Title Companyform attached hereto as Exhibit D (the "Bill xx Sale"), and the Survey such title to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal free of any Unpermitted Exception includingliens, without limitation, to bring any action encumbrances or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)interests.
(c) In At the event that Closing, Seller is unable, or elects not, shall transfer title to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out ofIntangible Property, the Property "Assumed Contracts" (which title insurance must be satisfactory to Purchaser in its reasonable discretionas hereinafter defined), and to convey the "Warranties and Guaranties" (as hereafter defined) by an assignment of intangible property in the form attached hereto as Exhibit E (the "Assignment of Intangible Property"), and shall assign the Leases by an assignment of leases in the form attached hereto as Exhibit F (the "Assignment of Leases"), such title to the Property in accordance with the terms be free of this Agreement on any liens, encumbrances or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) aboveinterests.
(d) If, on Anything contained herein to the Closing Date, there are contrary notwithstanding and notwithstanding any liens approval or encumbrances that Seller is obligated to discharge under this Agreementconsent given by Buyer hereunder, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the samecause all monetary encumbrances, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed including without limitation all mechanics' liens to be Unpermitted Exceptions.released from
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Title to the Property. (a) As At the Closing, Seller shall convey to Buyer and Buyer shall accept title to the Property in fee simple in accordance with the terms of this Agreement, and Buyer's obligation to accept said title shall be conditioned upon Buyer then being conveyed good and clear record, marketable and insurable title (in fee simple to the Real Property, all rights, privileges and easements appurtenant thereto, and to the Improvements, by duly executed and acknowledged special warranty deed - statutory form. It shall be a condition precedent to Buyer's obligation to close hereunder that the Title Company stands ready to issue, at the Closing Chicago an ALTA standard full coverage form Owner's Policy of Title Insurance Company (with extended coverage and all endorsements reasonably requested by Buyer, insuring Buyer's interest in the “Title Company”) shall have committed to insure Purchaser as Property, dated the fee owner date of the Property Closing, with liability in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaPrice, subject only to the Permitted Exceptions (as hereinafter definedthe "Title Policy"). The Title Policy shall insure against all mechanics' liens and shall have full survey coverage and shall be an extended coverage policy insuring against, among other things, mechanics' liens, easements and claims of parties in possession not shown by the public records with all general and standard exceptions deleted. Seller shall pay the cost of the standard owner's policy. Buyer shall bear the expense for extended coverage and the cost of any endorsements requested by Buyer.
(b) Seller shall orderBuyer shall, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect prior to the Property (the “Title Commitment”) from the Title CompanyApproval Date, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (Buyer's objections to any matters disclosed by the “Commitment, Title Objection Notice”) thereof within ten (10) days after receipt of both Documents or Survey. All matters shown on the Title Commitment and the Updated Survey, Exceptions which are not objected to by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject Buyer prior to the terms and conditions of this Section 4.1Approval Date shall be "Permitted Exceptions". Purchaser hereby waives any right Purchaser may have Seller agrees to advanceuse its best efforts to satisfy such objections noted by Buyer, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless provided that: (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be obtain a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfaction and release or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Sellerbond over any monetary liens, in its sole discretiona manner reasonably satisfactory to Buyer, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, any and all mortgages, mechanics' liens and judgment liens (collectively, "Monetary Liens"); and (ii) Seller shall not be obligated to bring any action litigate or proceeding, spend more than $10,000.00 in the aggregate to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception cure non-monetary lien objections or to arrange for title insurance insuring against enforcement seek any cure which cannot be obtained within fifteen (15) days. Seller shall notify Buyer of Seller's proposed actions to satisfy such Unpermitted Exception againstobjections, or collection and shall have up to the Closing Date to satisfy such objections and the Closing Date shall be extended a reasonable period of the same out oftime, the Propertynot to exceed fifteen (15) days, notwithstanding that Seller may have attempted if necessary to allow such cure period. If, despite its best efforts to do so, or may have adjourned the Scheduled Closing Date for Seller cannot satisfy such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property objections (other than the Existing FinancingMonetary Liens, which shall be satisfied or bonded over by Seller) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date expiration of such additional fifteen (whether or not the Closing is adjourned as provided in Section 4.1.1(b))15) day period, Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser Buyer shall have the right, as option to waive its sole remedy for objection(s) to such election of Seller, by delivery of written notice title and/or other defect(s) and proceed to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) Closing or terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided transaction. Buyer acknowledges that Purchaser is not otherwise in default the termination of its obligations the transaction pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion section of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same Agreement shall not be deemed entitle Buyer to be Unpermitted Exceptionsreceive reimbursement for third party expenses or to seek specific performance or any other legal or equitable remedy against Seller.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Ps Business Parks Inc/Ca)
Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company Closing, CHICAGO TITLE COMPANY (the “"Title Company”) "), either itself or through United Title Company, shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s 's title insurance policy (the “"Owner’s 's Policy”") and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, Purchaser acknowledges that it has received a commitment for an owner’s 's fee title insurance policy or policies with respect to the Property (the “"Title Commitment”") from the Title Company, and shall cause the Title Commitment, Company together with those true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”)Property. If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “"Unpermitted Exceptions”"), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “"Title Objection Notice”") thereof within ten (10) days after receipt of both the Title Commitment and the Updated SurveyContract Date, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, Seller may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for In the event a Title Objection Notice is given by Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty thirty (6030) days (such period of time being herein called the “"Extension Period”) should Seller elect to cure any such title objection"), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned obtained an adjournment of the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding satisfy any mortgage, deed of trust or otherwise) of any other monetary liens encumbering lien placed on the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)Seller.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five three (53) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, Escrow Holder shall return the Initial Deposit and the Additional Deposit, to the extent deposited with Escrow Holder, to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, an abatement of, in or credit against, against the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation) to either (i) arrange, at Seller's cost and expense, for affirmative title insurance or special endorsements insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Contract of Sale (Sports Arenas Inc)
Title to the Property. (a) As a condition Prior to the Closing Chicago Title Insurance Company execution and delivery of this Agreement, Kensington Vanguard National Land Services (the “Title Company”) shall have committed delivered to insure Seller and Purchaser as the fee owner an examination and certificate of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (collectively, the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company), and the Survey Title Company has agreed with Purchaser to be delivered deliver to Purchaser Seller copies of any Update (as hereinafter defined) and Purchaser’s attorneys all documents of record reflected in either the Commitment or any such Update concurrently with the delivery thereof provision of same by the Title Company to Seller Purchaser. If the Commitment or Seller’s attorneys. Purchaser shall have the any update, amendment or supplement thereto (each such update, amendment or supplement is referred to herein as an “Update”) or any UCC search discloses any exception, lien, mortgage, security interest, claim, charge, reservation, lease, tenancy, occupancy, easement, right to order an update to Seller’s existing survey of way, encroachment, restrictive covenant, condition, limitation, or a new survey of other encumbrance or defect affecting the Property (the collectively, “Updated SurveyExceptions”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions Encumbrances (such exception(sas hereinafter defined) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept titleobjects, and Purchaser shall provide notify Seller with written notice in writing (the each a “Title Objection Notice”) thereof within ten of such Exceptions (10) days after receipt each of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake Exceptions to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10objects pursuant to a Title Objection Notice is referred to herein as a “Title Objection”) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days business days after the receipt of the Commitment, an Update, or any UCC search disclosing an Exception. Seller shall be entitled to adjourn the Closing, for a reasonable period or periods not to exceed sixty (60) days in the aggregate (the “Title Company shall notify Purchaser of such Unpermitted Exception (failure Cure Period”) to so notify Seller attempt to clear a Title Objection. Any Exceptions disclosed on the Commitment, an Update or any UCC search not set forth in a Title Objection Notice shall be deemed to be Permitted Encumbrances.
(b) At the Closing, Purchaser shall accept title to the Property in such form as the Title Company would be willing to insure at regular rates subject only to the Permitted Encumbrances.
(c) Seller shall only be obligated to release or discharge of record Exceptions that: (i) may be removed of record or satisfied solely by reference to Seller’s existing title policy insuring Seller’s interest in the Property or delivery of a waiver customary affidavit that is reasonably acceptable to Seller and the Title Company; (ii) the lien of the mortgages encumbering the Property identified on the mortgage schedule attached hereto as Exhibit M; or (iii) were voluntarily created, or knowingly permitted, by Purchaser Seller (including, without limitation, any mortgage encumbering the Property) and may be satisfied by the payment of its right a liquidated sum of money not to raise such Unpermitted exceed $45,000.00 (an Exception as an objection meeting the criteria set forth in clauses (i), (ii) or (ii) hereof being referred to title or as a ground for Purchaser’s refusal “Required Cure Item”).
(d) Seller shall take such action as is required on the part of Seller to close have any Required Cure Item removed of record. Subject to Section 4.1(c) hereof, if Seller is: (i) unwilling, unable or not required hereunder to clear any Title Objection (other than the transaction contemplated by Required Cure Items); or (ii) unable to convey or cause to be conveyed title to the Property as herein agreed to be conveyed, then Seller shall so notify Purchaser and Purchaser shall have the option to either: (A) waive such Title Objection, proceed with the Closing and accept title to the Property subject to such Title Objection without any abatement or reduction to the Purchase Price; or (B) terminate this Agreement and receive the return of the Downpayment, whereupon this Agreement shall terminate and neither party hereto shall have any further obligations hereunder other than those obligations expressly stated herein to survive the termination of this Agreement.
(e) If Seller shall adjourn the Closing to cure any Title Objection in accordance with the provisions of this Article, Seller shall, upon the satisfactory cure thereof, promptly reschedule the Closing upon at least five (5) business days’ prior notice to Purchaser (the “New Closing Notice”). Notwithstanding anything ; it being agreed, however, that if any matters which are Title Objections arise between the date the New Closing Notice is given and the Closing, Seller may again adjourn the Closing for a reasonable period or periods not to the contrary contained in this Agreementexceed thirty (30) days (provided, Sellerhowever, in its sole discretion, that Seller shall not have the right to adjourn the Closing for a period not to exceed more than sixty (60) days (such period of time being herein called in the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt aggregate with all other adjournments by Seller of the Title Objection NoticeClosing permitted hereunder), whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or attempt to arrange for title insurance insuring against enforcement of cause such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted Title Objections to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)eliminated.
(cf) In the event that connection with Seller is unablesatisfying any Exceptions required to be satisfied, or which Seller elects notto satisfy, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have may, at its option, either deposit with the right Title Company such sum of money or deliver to use the Title Company such affidavits and certificates as may be determined by the Title Company as being sufficient to induce the Title Company to insure Purchaser’s title to the Property without exception therefor.
(g) In addition, in connection with Seller satisfying any Exception required to be satisfied, or which Seller elects to satisfy, under this Agreement, Seller may direct Purchaser to apply a portion of the Purchase Price to pay and discharge the samesatisfaction of such Exceptions, either by way of payment or by alternative manner reasonably satisfactory provided that Seller shall, at the Closing, deliver to the Title CompanyCompany instruments in recordable form sufficient to discharge such Exceptions of record, together with the cost of recording or filing any such instruments or a payoff letter and the same appropriate funds to satisfy such Exceptions. If request is made by Seller prior to the Closing, Purchaser, at the Closing, shall provide Seller with separate unendorsed bank checks payable as directed by Seller and/or shall wire transfer immediately available federal funds for credit to such bank account(s) as designated by Seller, in an aggregate amount not be deemed to be Unpermitted exceed the balance of the Purchase Price, to facilitate the discharge of any such Exceptions.
(h) If the Commitment discloses judgments, bankruptcies or other returns against other persons having names the same as, or similar to, that of Seller, Seller, on request, shall deliver to the Title Company affidavits reasonably acceptable to the Title Company showing that such judgments, bankruptcies or other returns are not against Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Realty Capital New York City REIT, Inc.)
Title to the Property. (a) As At the Closing, Seller shall convey to Buyer fee simple title to the Real Property and Improvements, by a duly executed and acknowledged grant deed substantially in the form attached hereto as Exhibit A (the "Deed"). A condition to Buyer's obligations under this Agreement shall be the Closing Chicago issuance by Fidelity National Title Insurance Company (the “"Title Company”") shall have committed to insure Purchaser as the fee owner Buyer of the Property an ALTA extended coverage Owner's Policy of Title Insurance (Form B, rev. 10/17/70 with Endorsement Form 1 coverage) in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring fee simple title insurance policy (to the “Owner’s Policy”) Real Property and Improvements in the standard form issued by the Title Company in the State of CaliforniaBuyer, subject only to such exceptions as Buyer shall have approved pursuant to Paragraph 4 below (the Permitted Exceptions "Approved Title Exceptions") and without boundary, encroachment or survey exceptions (the "Title Policy"). The Title Policy shall provide full coverage against mechanics' and materialmen's liens and shall contain, to the extent required by Buyer, the CLTA 100 (modified for an owner), 101.4, 103.7, 116, 116.1, 116.4, 116.7 and such other special endorsements as hereinafter definedBuyer may reasonably require upon completion of review of the preliminary title report, including, without limitation, any endorsements required as a condition to Buyer's approval of any title exceptions pursuant to Paragraph 4 below (the "Endorsements").
(b) At the Closing (i) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee transfer title insurance policy or policies with respect to the Tangible Personal Property by bill xx sale in the form attached hereto as Exhibit B (the “Title Commitment”"Bill xx Sale"); (ii) Seller shall transfer title to the Intangible Property, the "Assigned Contracts" (as hereinafter defined) and the "Permits" (as hereinafter defined) by assignment of intangible property in the form attached hereto as Exhibit C (the "Assignment of Intangibles"); and (iii) Seller shall transfer title to the Leases by assignment of Leases in the form attached hereto as Exhibit D (the "Assignment of Leases"), such title in each case to be free of any liens, encumbrances or interests.
(c) Anything contained herein to the contrary notwithstanding and notwithstanding any approval or consent given by Buyer hereunder, except for real estate taxes not yet due or payable, Seller shall cause all mortgages, deeds of trust and other monetary encumbrances, including without limitation all mechanics' liens, to be released and reconveyed from the Title Company, Property on or prior to the Closing and shall cause the Title Commitment, together with those copies of all instruments giving rise Company to any defects or exceptions to insure title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If as vested in Buyer without any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date exception for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)matters.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Title to the Property. (a) As a condition Good and marketable fee simple record --------------------- title to the Closing Chicago Title Insurance Company Land and Improvements shall be conveyed by Seller to Purchaser by Special Warranty Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "I" attached hereto and by this reference made ---------- a part hereof (the “Title Company”) shall have committed hereinafter referred to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) "Permitted Exceptions"). Seller covenants and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall orderagrees that Seller, at Purchaser’s its sole cost and expense, shall, within five (5) days following after the effective date hereofof this Agreement, a cause Chicago Title Insurance Company (herein referred to as "Title Company") to deliver to Purchaser its commitment for an owner’s fee title insurance policy or policies with respect (herein referred to as the Property (the “"Title Commitment”") from to issue to Purchaser upon the Title Company, and shall cause recording of the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to Special Warranty Deed conveying title to the Property that Purchaser receives Land and Improvements from Seller to Purchaser, the Title Companypayment of the Purchase Price, and the Survey payment to the Title Company of the policy premium therefor, an ALTA owner's policy of title insurance, in the amount of the Purchase Price, insuring good and marketable fee simple record title to the Land and Improvements to be in Purchaser. The Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than and exception for taxes for years subsequent to 2001 not yet due or payable. Such Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenant (as hereinafter defined), as tenant only, under the Lease. The Title Commitment shall not contain an exception for the state of facts which would be disclosed by a survey of the Property or an "area and boundaries" exception, and in lieu thereof, the Title Commitment shall contain an exception only for the matters shown on the as-built survey to be provided by Seller to Purchaser in accordance with Paragraph 9(e) hereof. The Title Commitment shall also contain such other special endorsements available to be issued in Florida as Purchaser shall reasonably require (the "Endorsements"). Seller shall also cause to be delivered to Purchaser together with such Title Commitment, legible copies of all documents and instruments referred to therein. Purchaser’s attorneys concurrently with , upon receipt of the delivery thereof Title Commitment and the copies of the documents and instruments referred to Seller or Seller’s attorneys. therein, shall then have until the date of Closing during which to examine same after which Purchaser shall have notify Seller of any defects or objections affecting the right to order an update to Seller’s existing survey or a new survey record marketability of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey Property, other than the Permitted Exceptions Exceptions. If Purchaser fails to give such notice of defects or objections as to any matters disclosed by such Title Commitment, such matters shall be deemed to be additional Permitted Exceptions. Seller shall then have until the earlier of the date of Closing or three (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (103) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, such notice of title defects or objections from Purchaser to advise Purchaser in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions writing which of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as such title defects or objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser Seller does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent intend to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfy or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purposecure; provided, however, Seller hereby agrees that Seller shall cause the removal (satisfy or cure any such defects or objections consisting of taxes, mortgages, deeds of trust, mechanic's or materialmen's liens created by bonding or otherwise) of any monetary liens encumbering the Property (arising under Seller, or other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien encumbrances created by or arising under Seller, and Seller agrees that Seller shall not obtain a dismissal with prejudice of the proceedings described on Exhibit "J" attached hereto and by reference made a part hereof. In the event ---------- Seller fails to give such written advice to Purchaser within such three (3) day period, Seller shall be the responsibility of any tenant at the Property; deemed to have declined to satisfy or cure all such defects or objections set forth in Purchaser's notice. Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed to satisfy or cure as provided further, however, that in above. In the event Seller elects not fails or refuses to remove all monetary liens (other than cure any defects and objections which are required herein to be satisfied or cured by Seller prior to the Existing Financing)Closing, then Purchaser shall have then, at the right to terminate this Agreement by delivery option of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) Purchaser may terminate this Agreement by written notice delivered to Seller (and Escrow Agent, in which event Escrowee shallthe Xxxxxxx Money shall be immediately refunded to Purchaser, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to and Purchaser and no party hereto Seller shall have any no further rights, obligations in connection herewith or liabilities hereunder, except under those provisions that for the obligations of the parties which are herein expressly stated to survive the Closing or a termination of this Agreement), or (ii) if any such defect or objection is one that Seller agreed to satisfy or cure as provided above, the same shall be paid or satisfied out of the Seller's closing proceeds, (iii) Purchaser may accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement ofdefects and objections, or credit against, the Purchase Price. The failure (iv) any combination of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause items (ii) aboveand (iii).
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
Title to the Property. SELLER shall convey the Property, including all easements and restrictions of record with the exception of the encroachment(s), if any, to PURCHASER at Closing by delivery of the Deed and the Assignment and Bill of Sale.
(a) As PURCHASER shall, during the Inspection Period, secure a condition to the Closing Chicago Title Insurance Company title insurance commitment issued by an agent (the “on behalf of a Title Company”) shall have committed selected by and acceptable to PURCHASER which commits to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s PURCHASER'S title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”). The costs and expenses relative to the issuance of a title commitment and an owner's title policy and mortgagee title insurance policy, if applicable, at the Closing shall be borne by the PURCHASER.
(b) PURCHASER shall have fifteen (15) calendar days from the Title Company, and shall cause date of receiving the Title Commitment, together with those copies of all instruments giving rise Commitment and a Current Survey (as set forth in Section 11.2) to review and examine said Title Commitment and any survey exception as shown in the Current Survey. If PURCHASER objects to any defects or exceptions exception to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear as shown in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Current Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writingPURCHASER shall, within ten (10) calendar days after of receipt by Seller of said Title Commitment, notify SELLER in writing specifying the Title Objection Notice, whether or not specific exception(s) to which it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out ofobjects (collectively, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise“Title Objections”). Any Title Objection(s) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not which PURCHASER has so notified SELLER, shall be cured by SELLER so as to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided enable the removal of such monetary lien shall not be said Title Objection(s) from the responsibility of any tenant at the Property; Title Commitment within ninety (90) calendar days after PURCHASER has provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt SELLER. For the avoidance of notice from Seller of its election not to remove such monetary lien (doubt, the matters described in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or Section 13 may be included as a termination of this Agreement)Title Objection by Purchaser.
(c) In Within twenty (20) calendar days after the event that Seller is unableexpiration of SELLER'S time to cure any Title Objection, or elects not, SELLER shall send to eliminate all Unpermitted Exceptions PURCHASER a notice in accordance with writing (the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5"Cure Notice") Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to stating either (i) that each of the Title Objection has been cured and, in such case, enclosing evidence of such cure, or (ii) that SELLER is unable to cure such Title Objection despite the good faith efforts of the SELLER to effectuate the cure.
(d) If SELLER is unable to cure all Title Objections within the time period set forth in the preceding sentence despite the good faith efforts of the SELLER, then PURCHASER may (a) terminate this Agreement by written notice delivered to Seller the SELLER within thirty (30) calendar days after receipt of a Cure Notice specifying an uncured Title Objection, in which event Escrowee shallall Deposits held by the Escrow Agent, provided that Purchaser is not otherwise together with interest thereon, shall be immediately returned to PURCHASER; or (b) subject to the provisions set forth below, proceed to close the transaction contemplated herein despite the uncured Title Objection(s).
(e) At least five (5) calendar days prior to Closing, PURCHASER shall obtain an update to the Title Commitment showing all new items which affect title to the Property. Should any additional matters (including any Survey matters) be listed in default the updated Title Commitment or the updated Survey, if applicable, subsequent to the original effective date of its obligations pursuant the original Title Commitment (a "New Encumbrance"), then, PURCHASER shall have five (5) Business Days from receipt of the updated Title Commitment, together with a copy of said title document to object to same, in which event, such New Encumbrance shall be deemed a “Title Objection” by PURCHASER and be subject to the same terms and conditions set forth above in this Section 11.1.
(f) Notwithstanding anything to the contrary in this Agreement, return the Deposit to Purchaser and in no party hereto event shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall Seller be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right prosecute legal action to use a portion of the Purchase Price to pay and discharge the same, either by way of payment cure any title defects or by alternative manner reasonably satisfactory to the Title Company, and the same expend more than $5,000.00 in curing such defects. (provided SELLER shall not be deemed obligated to be Unpermitted Exceptionscure any such financial liens arising solely because of the acts or failure to act of PURCHASER).
Appears in 1 contract
Samples: Purchase and Sale Agreement
Title to the Property. (a) As a condition to the Closing Closing, Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaIllinois, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, cause to be delivered to Purchaser a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause Company within five (5) Business Days following the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”)date hereof. If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten fifteen (1015) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneysdate hereof, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten fifteen (1015) day period pursuant to the Title Objection Notice unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty forty-five (6045) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection), provided that Seller shall notify Purchaser, in writing, within ten fifteen (1015) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned obtained an adjournment of the Scheduled Closing Date for such purpose; provided, however, notwithstanding the foregoing, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of any other monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) 150,000 in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)aggregate.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five three (53) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, shall return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, an abatement of, in or credit against, against the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation) to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust, Inc.)
Title to the Property. At the Closing, Owner shall deliver to Highwoods a special warranty deed in form and content satisfactory to Highwoods' counsel and customarily used in South Carolina for transactions of the type described herein with recording fees paid at Highwoods' expense (and documentary stamps paid by Owner), conveying to Highwoods a good, indefeasible, fee simple and insurable title to the Land, its appurtenances and Improvements, said title to be insurable both as to fee at regular rates by a title insurance company of Highwoods' choice (the "Title Company"), subject only to those matters specifically enumerated in (a) As a condition to through (f) of this Section 6.01 ("Permitted Exceptions"); provided, any real property shown on the Closing Chicago Title Insurance Company (Surveys within the “Title Company”) shall have committed to insure Purchaser as the fee owner boundary lines of the Property Land not described in the amount deeds of conveyance to Owner shall be conveyed by Owner to Highwoods by quitclaim deed rather than the special warranty deed descried above. Within fifteen (15) days of the Purchase Price by issuance of an ALTA owner’s date hereof, Highwoods shall obtain a current title insurance policy (commitment for the “Owner’s Policy”) and in the standard form Land issued by the Title Company in (which shall be selected by Highwoods) showing the State condition of California, subject only to title of the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property Land (the “"Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”Report"). If Highwoods disapproves of any exceptions(s) to matter of title to the Property should appear contained in the Title Commitment or the Updated Survey other Report, Highwoods may then elect to provide, no later than the Permitted Exceptions fifth (such exception(s5th) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days business day after its receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title CommitmentReport, and (ii) Purchaser shall notify Seller written notice of Highwoods' disapproval of the same within five to Owner (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to those disapproved title matters as so notify Seller shall be deemed to be a waiver identified by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein Highwoods are hereafter called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted "Disapproved Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions."
Appears in 1 contract
Samples: Contract of Sale and Purchase (Yager Kuester Public Fund 1986 Limited Partnership)
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer indefeasible and insurable fee simple title to the Closing Chicago Real Property and Improvements, by duly executed and acknowledged special warranty deed substantially in the form attached hereto as Exhibit C (the "Deed"). Evidence of delivery of indefeasible and insurable fee simple title shall be the issuance by Partner's Title Insurance Company (the “"Title Company”") shall have committed to insure Purchaser as Buyer at the fee owner Closing of an Owner's Policy of Title Insurance in the Property form promulgated by the Texas State Board of Insurance in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in at no more than the standard form issued rates allowed by the Title Company Texas Department of Insurance, insuring fee simple title to the Real Property in the State of CaliforniaBuyer, subject only to such exceptions as Buyer shall approve pursuant to Paragraph 5, below (the Permitted Exceptions "Title Policy"). The Title Policy shall provide full coverage against mechanics' and materialmen's liens, the printed form survey exception shall be limited to "shortages in area" and the standard exception for taxes shall read: "standby fees and taxes for the year 1997 and subsequent years, and subsequent assessments for prior years due to change in land usage or ownership" and shall contain such special endorsements as Buyer may reasonably require, including, without limitation, any endorsements required as a condition to Buyer's approval of any title exceptions pursuant to Paragraph 5, below (as hereinafter definedthe "Endorsements").
(b) At the Closing, Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee transfer title insurance policy or policies with respect to the Tangible Personal Property by a special warranty bill xx sale in the form attached hereto as Exhibit D (the “Title Commitment”"Bill xx Sale"), such title to be free of any liens, encumbrances or interests.
(c) At the Closing, Seller shall transfer title to the Intangible Property, the "Assumed Contracts" (as hereinafter defined), the "Permits" (as hereinafter defined), and the "Warranties and Guaranties" (as hereafter defined) by an assignment of intangible property in the form attached hereto as Exhibit E (the "Assignment of Intangible Property"), and shall assign the Leases by an assignment of leases in the form attached hereto as Exhibit F (the "Assignment of Leases"), such title to be free of any liens, encumbrances or interests.
(d) Seller shall cause all monetary encumbrances, including without limitation all mechanics' liens, created by Seller or on account of Seller's actions or inactions to be released from the Title Company, Property on or prior to the Closing and shall cause the Title Commitment, together with those copies of all instruments giving rise Company to any defects or exceptions to insure title to the Property that Purchaser receives from as vested in Buyer without any exception for such matters. Seller may bond around any such encumbrances so long as this will be sufficient to cause the Title Company, and the Survey Company to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to insure title to the Property should appear as vested in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives Buyer without any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date exception for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)matter.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
Title to the Property. (a) As At the Closing, Seller shall convey to Buyer and Buyer shall accept title to the Property (either in fee simple or a leasehold estate as specified in Schedule A) in accordance with the terms of this Agreement, and Buyer's obligation to accept said title shall be conditioned upon Buyer then being conveyed good and clear record, marketable and insurable title (either in fee simple or a leasehold estate as specified in Schedule A) to the Real Property, all rights, privileges and easements appurtenant thereto, and to the Improvements, by duly executed and acknowledged special warranty deed or an assignment and assumption of the leasehold estate, as the case may be. It shall be a condition precedent to Buyer's obligation to close hereunder that the Title Company stands ready to issue, at the Closing Chicago a TLTA standard full coverage form Owner's Policy of Title Insurance Company (with extended coverage and all endorsements reasonably requested by Buyer, insuring Buyer's interest in the “Title Company”) shall have committed to insure Purchaser as Property, dated the fee owner date of the Property Closing, with liability in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaPrice, subject only to the Permitted Exceptions (as hereinafter definedthe "Title Policy"). The Title Policy shall insure against all mechanics' liens and shall have full survey coverage and shall be an extended coverage policy insuring against, among other things, mechanics' liens, easements and claims of parties in possession not shown by the public records with all general and standard exceptions deleted. Seller shall pay the cost of the standard owner's policy. Buyer shall bear the expense for extended coverage and the cost of any endorsements requested by Buyer.
(b) Seller shall orderBuyer shall, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect prior to the Property (the “Title Commitment”) from the Title CompanyApproval Date, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (Buyer's objections to any matters disclosed by the “Commitment, Title Objection Notice”) thereof within ten (10) days after receipt of both Documents or Survey. All matters shown on the Title Commitment and the Updated Survey, Exceptions which are not objected to by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject Buyer prior to the terms and conditions of this Section 4.1Approval Date shall be "Permitted Exceptions". Purchaser hereby waives any right Purchaser may have Seller agrees to advanceuse its best efforts to satisfy such objections noted by Buyer, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless provided that: (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be obtain a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfaction and release or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Sellerbond over any monetary liens, in its sole discretiona manner reasonably satisfactory to Buyer, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, any and all mortgages, mechanics' liens and judgment liens (collectively, "Monetary Liens"); and (ii) Seller shall not be obligated to bring any action litigate or proceeding, spend more than $10,000.00 in the aggregate to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception cure non-monetary lien title objections or to arrange for title insurance insuring against enforcement seek any cure which cannot be obtained within fifteen (15) days. Seller shall notify Buyer of Seller's proposed actions to satisfy such Unpermitted Exception againstobjections, or collection and shall have up to the Closing Date to satisfy such objections and the Closing Date shall be extended a reasonable period of the same out oftime, the Propertynot to exceed fifteen (15) days, notwithstanding that Seller may have attempted if necessary to allow such cure period. If, despite its best efforts to do so, or may have adjourned the Scheduled Closing Date for Seller cannot satisfy such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property objections (other than the Existing FinancingMonetary Liens, which shall be satisfied or bonded over by Seller) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date expiration of such additional fifteen (whether or not the Closing is adjourned as provided in Section 4.1.1(b))15) day period, Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser Buyer shall have the right, as option to waive its sole remedy for objection(s) to such election of Seller, by delivery of written notice title and/or other defect(s) and proceed to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) Closing or terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided transaction. Buyer acknowledges that Purchaser is not otherwise in default the termination of its obligations the transaction pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion section of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same Agreement shall not be deemed entitle Buyer to be Unpermitted Exceptions.receive reimbursement for third party expenses or to seek specific performance or any other legal or equitable remedy against Seller 2
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Ps Business Parks Inc/Ca)
Title to the Property. (a) As a condition to At the Closing, all the Owned Real Property and its appurtenances shall be free and clear of all Liens, Claims, rights-of-way and leases, other than the Permitted Encumbrances and the following:
(i) rights-of-way of streets, so long as they do not prevent, interfere or adversely affect the use of the property for the same purposes as used and operated as of the Closing Chicago Title Insurance Company Date;
(ii) public utility easements, easements with respect to gas or oil transmission lines and rights-of-way and oil and gas leases, each in customary form, so long as they do not prevent, interfere or adversely affect the “Title Company”) shall have committed to insure Purchaser as the fee owner use of the Property in property for the amount same purposes as used and operated as of the Purchase Price Closing Date;
(iii) ad valorem or real property taxes not yet due and payable; and
(iv) zoning and building laws and ordinances of the city, town, county, village, state or municipality in which the Owned Real Property lies which are not violated by issuance existing structures and which are not violated by or do not prevent, interfere with or adversely affect the continued use and operation of an ALTA owner’s title insurance policy (the “Owner’s Policy”) Owned Real Property for the same purposes as used and in operated as of the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined)Closing Date.
(b) Seller shall orderPrior to the Closing, at Purchaser’s sole cost if, in the opinion of Buyer's counsel, after Seller's and expenseMacedon's opportunity to cure provided in Section 5.6, within five (5) days following the date hereof, a commitment for an owner’s fee Buyer is not able to obtain title insurance policy or policies acceptable to Buyer (including any endorsements required by Buyer from the Title Company with respect to the Property Owned Real Property) (collectively, the “"Title Commitment”) from Policies"), the Title Companycost of which shall be paid by Buyer, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser Buyer shall have the right to order an update to Seller’s existing survey or a new survey option of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by accepting the Title Company subsequent to the date condition of the Title CommitmentOwned Real Property title "AS IS", and consummating the Closing without waiving any rights of Buyer under Article 11, or (ii) Purchaser shall notify Seller of terminating this Agreement pursuant to Section 8.1(b)(iv) without liability by Buyer to Seller, Macedon or the same within five (5) Business Days after Company. Notwithstanding any other provision contained herein to the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection contrary, if any exception to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained disclosed in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception includingCommitment which may include, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted a Disapproved Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financinga Permitted Encumbrance), then Purchaser shall have the right to terminate this Agreement can be cured by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such a monetary lien (in which event Escrowee shallpayment, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser Buyer shall have the right, as its sole remedy for such election in addition to any other rights of adjustment hereunder, of reducing by a like amount the Purchase Price due to Seller at the Closing, provided that, without the prior consent of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same Buyer shall not be deemed to be Unpermitted Exceptionsmake any such monetary payment in excess of $10,000.
Appears in 1 contract
Samples: Stock Purchase Agreement (Iesi Corp)
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer marketable and insurable fee simple title to the Closing Chicago Title Insurance Company Property by a duly executed and acknowledged grant, bargain, sale deed in a form acceptable to Buyer and Seller ("Deed") subject only to exceptions expressly consented to by Buyer (“Permitted Exceptions”). Evidence of delivery of marketable and insurable fee simple title shall be the issuance by Escrow’s title company (“Title Company”) shall have committed to insure Purchaser as the fee owner Buyer of the Property an CLTA standard coverage owner’s policy of title insurance in the amount of the Purchase Price by issuance of an ALTA ownerPrice, at Buyer’s sole cost and expense, insuring fee simple title insurance policy (to the “Owner’s Policy”) and Property in the standard form issued by the Title Company in the State of CaliforniaBuyer, subject only to the Permitted Exceptions (the “Title Policy”). The Title Policy shall include without limitation full coverage against mechanics’ and materialmen’s liens arising out of the construction, repair or alteration of any of the Improvements including any tenant improvements therein and shall contain such special endorsements as hereinafter defined)Buyer may reasonably require at Buyer’s cost and expense.
(b) Seller The following restriction shall orderbe included in the Deed as required for Park, at Purchaser’s sole cost and expense, within five Trail & Natural Area (5PTNA) days following using Southern Nevada Public Land Management Act (SNPLMA) funds: IT IS EXPRESSLY UNDERSTOOD AND AGREED that the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect conveyance of the property described herein to the Property (City of North Las Vegas is made for the “Title Commitment”benefit of the people of the State of Nevada for the exclusive use as a public park, trail or natural area under Section 4(e)(3)(A)(iv) from of the Title Companyfederal Southern Nevada Public Land Management Act of 1998, and shall cause Public Law 105-263, 112 Stat. 2343, as amended. If the Title Commitment, together with those copies of all instruments giving rise to any defects property described herein is not used or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey ceases to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller used as a public park, trail, or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property natural area within ninety-nine (the “Updated Survey”). If any exceptions(s99) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to years from the date of this conveyance, any person or entity may enforce the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination terms of this Agreement)use restriction in a court of competent jurisdiction.
(c) In At the event that Closing, Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey shall transfer title to the Property Personal Property, if any, free and clear of any and all liens, encumbrances or interests by a xxxx of sale in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not a form acceptable to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Buyer and Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default “Xxxx of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this AgreementSale”), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer marketable and insurable fee simple title to the Closing Chicago Real Property, the Appurtenances and the Improvements, by a duly executed and acknowledged warranty deed substantially in the form attached hereto as Exhibit E (the “Deed”). Evidence of delivery of marketable and insurable fee simple title shall be the issuance by Commonwealth Land Title Insurance Company (the “Title Company”) shall have committed ), to insure Purchaser as the fee owner Buyer of the Property an ALTA owner’s policy of title insurance in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring fee simple title insurance policy (to the “Owner’s Policy”) Real Property, the Appurtenances and the Improvements in the standard form issued by the Title Company in the State of CaliforniaBuyer, subject only to the lien of real property taxes not yet payable and the exceptions set forth on Exhibit F attached hereto (which shall include the rights of Seller under the Leaseback) (collectively, the “Permitted Exceptions Exceptions”), and in a form approved by Buyer (the “Title Policy”). The Title Policy shall include such special endorsements as hereinafter definedBuyer may require (the “Endorsements”). The Title Policy may include an exception for matters that would be shown by a current survey of the Real Property and Improvements. However, within ninety (90) after the Closing, Seller shall deliver to Buyer at Seller’s expense an “as-built” survey of the Real Property and Improvements prepared by a surveyor or civil engineer licensed in the State in which the Property is located. Said survey shall be acceptable to, and certified to, Buyer and Title Company, signed by the surveyor or engineer preparing the survey and in sufficient detail to provide for a bring-down of the Title Policy without boundary, encroachment or survey exceptions, and shall meet the requirements set forth on Exhibit G attached hereto. Within thirty (30) days after the delivery of the survey to the Title Company, Buyer shall cause the Title Company to issue a bring-down to the Title Policy that removes the exception for matters that would be shown by a current survey of the Real Property and Improvements and replaces it with a specific survey exception that identifies only those matters that are disclosed by the survey; that specific survey exception shall contain no matters that are objectionable to Buyer (unless affirmative coverage over such matters in a form acceptable to Buyer is included in the Title Policy bring-down).
(b) At the Closing, Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee transfer title insurance policy or policies with respect to the Personal Property by a warranty xxxx of sale in the form attached hereto as Exhibit H (the “Title CommitmentXxxx of Sale”), such title to be free of any liens, encumbrances or interests.
(c) from At the Title CompanyClosing, and Seller shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to transfer title to the Intangible Property that Purchaser receives from the Title Company, and the Survey by such instruments as Buyer may determine to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein calledreasonably necessary, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement an assignment of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Intangible Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided form attached hereto as Exhibit I (the removal “Assignment of such monetary lien shall not be the responsibility of any tenant at the Intangible Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing”), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on At or prior to the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this AgreementClosing, Seller shall have cause all mortgages, equipment leases and other monetary liens and rights of third parties encumbering the right Property to be paid and discharged in full, other than (i) inchoate mechanics’ liens arising from the Upgrade Work for which no claim of lien has been asserted or recorded and as to which no past due amounts are payable by Seller and (ii) leases related to Excluded Property.
(e) Within thirty (30) after the Closing, Seller shall deliver to Buyer at Seller’s expense true and correct copies of all zoning permits for the Property (which shall confirm that the current use a portion of the Purchase Price to pay Property is in compliance with all applicable zoning requirements) and discharge the same, either by way certificates of payment or by alternative manner reasonably satisfactory occupancy for two office trailers that Seller added to the Title Company, and the same shall not be deemed to be Unpermitted Exceptionssite in 2013.
Appears in 1 contract
Title to the Property. (a) As a condition Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser at Closing Chicago by Special Warranty Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit ”C” attached hereto (hereinafter referred to as the “Permitted Exceptions”). Seller covenants and agrees that Seller, at its sole cost and expense, shall, within ten (10) days after the effective date of this Agreement, cause Investors Title Insurance Company (the “Title Company”) shall have committed to insure deliver to Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a its commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) to issue to Purchaser upon the recording of the Special Warranty Deed conveying title to the Land and Improvements from Seller to Purchaser, the payment of the Purchase Price, and the payment to the Title CompanyCompany of the policy premium therefor, an ALTA owner’s policy of title insurance, in the amount of the Purchase Price, insuring good and marketable fee simple record title to the Land and Improvements to be owned by Purchaser without exception (including any standard exception) except for the Permitted Exceptions, and shall cause contain the following endorsements to the extent the same are available in the State of North Carolina: comprehensive, zoning, covenants and restrictions, survey, contiguity, and access. The Title Commitment shall not contain any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable, and subsequent assessments for prior years due to change in land usage or ownership, not yet due and payable. Such Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. If the Title CommitmentCommitment shall contain an exception for the state of facts which would be disclosed by a survey of the Land and Improvements or an “area and boundaries” exception, together with those copies the Title Commitment shall provide that such exception will be deleted upon the presentation of all instruments giving rise a current “as-built” survey, in which case the Title Commitment shall be amended to contain an exception only for the matters shown on the as-built survey obtained by Purchaser, if any, or for any defects or exceptions to title survey matter which arises subsequent to the Property that date of this current survey. The Title Commitment shall also contain such other special endorsements as Purchaser receives from shall reasonably require (the Title Company, and the Survey “Endorsements”). Seller shall also cause to be delivered to Purchaser together with such Title Commitment, legible copies of all documents and instruments referred to therein. Depending upon the identity of the Title Company selected by Seller and approved by Purchaser to issue the Title Commitment, Purchaser may require reinsurance of portions of the title risk to title companies and in amounts acceptable to Purchaser’s attorneys concurrently with . Any reinsurance shall be pursuant to a reinsurance agreement providing direct access to the delivery thereof title insurance company issuing such reinsurance and shall otherwise be in a form approved by Purchaser, which approval shall not be unreasonably withheld. Purchaser, upon receipt of the Title Commitment and the copies of the documents and instruments referred to Seller or Seller’s attorneys. therein, shall then have ten (10) days during which to examine same after which Purchaser shall have notify Seller of any defects or objections affecting the right to order an update to Seller’s existing survey or a new survey record marketability of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey Property, other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser . Seller shall provide Seller with written notice (the “Title Objection Notice”) thereof within then have ten (10) days after receipt of both such notice of title defects or objections from Purchaser to advise Purchaser in writing which of such title defects or objections Seller does intend to satisfy or cure, provided, however, Seller hereby agrees that Seller shall satisfy or cure any such defects or objections consisting of taxes, mortgages, deeds of trust (exclusive of the Title Commitment and the Updated SurveyNew York Life Mortgage), by mechanic’s or materialman’s liens or other monetary encumbrances. If Seller fails to give written notice to Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent period, regarding which title defects or objections Seller will elect to the date of the Title Commitmentcure, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right have agreed to raise satisfy or cure all such Unpermitted Exception as an objection to title defects or as a ground for objections set forth in Purchaser’s refusal notice. Seller shall have until the Closing (as hereinafter defined) to close cure such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. If Seller refuses to cure any title defect or objection or fails or refuses to cure any title defect or objection which Seller is required to cure herein, then, at the transaction contemplated by this Agreementoption of Purchaser: (i) if any such defects or objections arose by, through, or under Seller or if any such defects or objections consist of taxes, mortgages, deeds of trust (except the New York Life Mortgage). Notwithstanding anything to the contrary contained in this Agreement, Sellermechanic’s or materialman’s liens, in its sole discretionor other such monetary encumbrances, Purchaser shall have the right to adjourn cure such defects or objections, in which event the Purchase Price payable pursuant to Paragraph 3 hereof shall be reduced by an amount equal to the costs and expenses incurred by Purchaser in connection with the curing of such defects or objections, and upon such curing, the Closing for a period not to exceed sixty (60) days (such period hereof shall proceed in accordance with the terms of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required ; or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwiseii) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of giving written notice of such termination to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shalland Escrow Agent, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto whereupon Escrow Agent shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate promptly refund all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium Xxxxxxx Money to Purchaser, insuring against enforcement of such Unpermitted Exceptions againstand Purchaser and Seller shall have no further rights, obligations, or collection of the same out ofliabilities hereunder, the Property (which title insurance must except for Purchaser’s Continuing Indemnification Obligations or as may otherwise be satisfactory to Purchaser in its reasonable discretion), and to convey title expressly provided to the Property in accordance with the terms of this Agreement on contrary herein; or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event iii) Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice right to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a defects and objections with no reduction in, abatement of, or credit against, in the Purchase Price, in which event such defects and objections shall be deemed “Permitted Exceptions”; or (iv) Purchaser may elect to extend the Closing for thirty (30) days in order to allow Seller additional time to satisfy such defects and objections. The failure If Purchaser elects option (iv) above, and such defects and objections are not cured by Seller to the satisfaction of Purchaser to deliver timely any written notice of election under this Section 4.1.1(cwithin said thirty (30) day period, Purchaser shall be conclusively deemed to be an election under clause then have the options set forth in items (i), (ii) and (iii) above.
. If Purchaser fails to give Seller notice of defects or objections as to any matters disclosed by the Title Commitment within ten (d10) Ifdays after Purchaser’s receipt thereof, on the Closing Date, there are any then except for monetary liens or encumbrances that Seller is obligated to discharge under this Agreementencumbrances, Seller shall have the right to use a portion such as taxes, mortgages, deeds of trust (exclusive of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title CompanyNew York Life Mortgage), and the same mechanic’s and materialmen’s liens, such matters shall not be deemed to be Unpermitted additional Permitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Ii Inc)
Title to the Property. (a) As At the Closing, Seller shall convey to Buyer and Buyer shall accept title to the Property in fee simple in accordance with the terms of this Agreement, and Buyer's obligation to accept said title shall be conditioned upon Buyer then being conveyed good and clear record, marketable and insurable title (in fee simple) to the Real Property, all rights, privileges and easements appurtenant thereto, and to the Improvements, by duly executed and acknowledged special warranty deed - statutory form. It shall be a condition precedent to Buyer's obligation to close hereunder that the Title Company stands ready to issue, at the Closing Chicago an ALTA standard full coverage form Owner's Policy of Title Insurance Company (with extended coverage and all endorsements reasonably requested by Buyer, insuring Buyer's interest in the “Title Company”) shall have committed to insure Purchaser as Property, dated the fee owner date of the Property Closing, with liability in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaPrice, subject only to the Permitted Exceptions (as hereinafter definedthe "Title Policy"). The Title Policy shall insure against all mechanics' liens and shall have full survey coverage and shall be an extended coverage policy insuring against, among other things, mechanics' liens, easements and claims of parties in possession not shown by the public records with all general and standard exceptions deleted. Seller shall pay the cost of the standard owner's policy. Buyer shall bear the expense for extended coverage and the cost of any endorsements requested by Buyer.
(b) Seller shall orderBuyer shall, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect prior to the Property (the “Title Commitment”) from the Title CompanyApproval Date, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (Buyer's objections to any matters disclosed by the “Commitment, Title Objection Notice”) thereof within ten (10) days after receipt of both Documents or Survey. All matters shown on the Title Commitment and the Updated Survey, Exceptions which are not objected to by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject Buyer prior to the terms and conditions of this Section 4.1Approval Date shall be "Permitted Exceptions". Purchaser hereby waives any right Purchaser may have Seller agrees to advanceuse its best efforts to satisfy such objections noted by Buyer, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless provided that: (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be obtain a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfaction and release or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Sellerbond over any monetary liens, in its sole discretiona manner reasonably satisfactory to Buyer, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, any and all mortgages, mechanics' liens and judgment liens (collectively, "Monetary Liens"); and (ii) Seller shall not be obligated to bring any action litigate or proceeding, spend more than $10,000.00 in the aggregate to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception cure non-monetary lien objections or to arrange for title insurance insuring against enforcement seek any cure which cannot be allowed within fifteen (15) days. Seller shall notify Buyer of Seller's proposed actions to satisfy such Unpermitted Exception againstobjections, or collection and shall have up to the Closing Date to satisfy such objections and the Closing Date shall be extended a reasonable period of the same out oftime, the Propertynot to exceed fifteen (15) days, notwithstanding that Seller may have attempted if necessary to allow such cure period. If, despite its best efforts to do so, or may have adjourned the Scheduled Closing Date for Seller cannot satisfy such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property objections (other than the Existing FinancingMonetary Liens, which shall be satisfied or bonded over by Seller) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date expiration of such additional fifteen (whether or not the Closing is adjourned as provided in Section 4.1.1(b))15) day period, Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser Buyer shall have the right, as option to waive its sole remedy for objection(s) to such election of Seller, by delivery of written notice title and/or other defect(s) and proceed to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) Closing or terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided transaction. Buyer acknowledges that Purchaser is not otherwise in default the termination of its obligations the transaction pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion section of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same Agreement shall not be deemed entitle Buyer to be Unpermitted Exceptionsreceive reimbursement for third party expenses or to seek specific performance or any other legal or equitable remedy against Seller.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Ps Business Parks Inc/Ca)
Title to the Property. (a) As At Closing, Seller shall deliver to Buyer a condition quitclaim deed in form and content reasonably satisfactory to Buyer’s counsel conveying to Buyer a good, indefeasible, fee simple, marketable and insurable title to the Closing Chicago Title Insurance Company Property and its appurtenances; said title to be insurable both as to fee and marketability at regular rates by a title insurance company of Buyer’s choice (the “Title Company”) ), without exception except as to those matters specifically enumerated in this Paragraph. The Property and its appurtenances shall have committed be conveyed by Seller to insure Purchaser Buyer free and clear of all liens, encumbrances, claims, rights-of-way, easements, leases, restrictions and restrictive covenants except the following:
i. rights-of-way of streets, so long as they do not interfere with the fee owner development and use of the Property;
ii. general utility easements and rights-of-way in customary form, so long as they do not interfere with the development and use of the Property;
iii. zoning and building laws or ordinances, provided they do not prohibit the development and use of the Property and so long as the Property is in compliance with same;
iv. ad valorem taxes for the year in which Closing occurs; and
v. matters revealed by the Survey, as defined herein, provided that they do not interfere with the development and use of the Property. If, in the amount opinion of Xxxxx’s counsel, Xxxxxx’s title fails to meet the requirements of this Paragraph, then any such deficiency shall be specified in writing to Seller no later than five (5) days prior to the end of the Purchase Price by issuance Inspection Period, and Seller shall have the option for a period of an ALTA owner’s title insurance policy ten (the “Owner’s Policy”10) and in the standard form issued by the Title Company in the State of California, subject only days thereafter to cure such deficiency to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, satisfaction of Buyer’s counsel at PurchaserSeller’s sole cost and expense. If Seller fails or refuses to cure such defect(s) within such time period, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser Buyer shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless option of:
(i) such Unpermitted Exception was first raised by taking title “as is” and consummating the Title Company subsequent to the date of the Title Commitment, and Closing or (ii) Purchaser shall notify Seller terminating this Agreement and receiving an immediate refund of the same within five (5full amount of the Deposit. If Seller does not provide written notice of its intention to cure or refuse to cure the defect(s) Business Days after specified in the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify notice, Seller shall be deemed to be a waiver by Purchaser of its right have refused to raise cure such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreementdefect(s). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the The foregoing or anything to the contrary set forth in this Agreementnotwithstanding, Seller shall not under be responsible for satisfying any circumstance be required mortgages, judgments or obligated to cause the cure or removal mechanics liens, of any Unpermitted Exception includingnature, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering affecting the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)Closing.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Title to the Property. Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "C" attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) As a condition Purchaser has obtained from United Title Company (herein referred to as "Title Company") its commitment (hereinafter referred to as the "Title Commitment") to issue to Purchaser upon the recording of the Grant Deed conveying title to the Closing Chicago Title Insurance Company (Land and Improvements from Seller to Purchaser, the “Title Company”) shall have committed to insure Purchaser as the fee owner payment of the Property Purchase Price, and the payment to the Title Company of the policy premium therefor, an ALTA owner's policy of title insurance, in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring good and marketable fee simple record title insurance policy to the Land and Improvements to be in Purchaser without exception (including any standard exception) except for the “Owner’s Policy”) and Permitted Exceptions, which contains the following endorsements to the extent the same are available in the standard form issued State of California: comprehensive, zoning, covenants and restrictions, creditor's rights, survey, and access (provided, however that Purchaser shall be solely responsible for the portion of the premium charged by the Title Company in order to upgrade the State title policy from a CLTA policy to an ALTA policy and the cost of California, subject only any premiums charged by Title Company in connection with any and all such endorsements). The title policy issued pursuant to the Permitted Exceptions Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable. The title policy issued pursuant to the Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. The title policy issued pursuant to the Title Commitment shall not contain an exception for the state of facts which would be disclosed by a survey of the Property or an "area and boundaries" exception, and in lieu thereof, the Title Commitment shall contain an exception only for the matters shown on the current as-built survey to be provided by Seller to Purchaser in accordance with Paragraph 9(g) hereof. The title policy issued pursuant to the Title Commitment shall also contain such other special endorsements as Purchaser shall reasonably require (the "Endorsements"). Purchaser has delivered to Seller a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent survey of the Property prepared by Dubron & Associates, dated September 24, 1999, last revised August 7, 2000, which shows that the Property contains 893 parking spaces. From time to time, Purchaser may request an update to the effective date of such Title Commitment or may update the date of the survey and give notice to Seller shall orderof all defects or objections appearing subsequent to the effective date of the Title Commitment (or previous update thereof) or survey, at Purchaser’s sole cost as the case may be (including any reduction of parking spaces). Seller agrees to cause the satisfaction and expense, release of the monetary encumbrances on the Property in favor of Fremont Investment and Loan and South Xxxxxxx Investment Corporation. All matters disclosed by an updated Title Commitment and/or survey and not objected to by Purchaser within five (5) days following the date hereofafter receipt of such updates shall be deemed to be additional "Permitted Exceptions"; provided, a commitment for an owner’s fee title insurance policy or policies with respect however, encumbrances created by Seller in violation of this Agreement, taxes due and payable prior to the Property (the “Title Commitment”) from the Title CompanyClosing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey in no event be deemed to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Permitted Exceptions. Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property five (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (105) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, such notice of title defects or objections from Purchaser to advise Purchaser in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions writing which of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as such title defects or objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser Seller does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent intend to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfy or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purposecure; provided, however, Seller hereby agrees that Seller shall cause the removal (satisfy or cure prior to Closing any such defects or objections consisting of encumbrances created by bonding Seller in violation of this Agreement, any taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or otherwise) of any monetary materialmen's liens encumbering the Property (and other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in encumbrances. In the event Seller elects not fails to remove all monetary liens (other than the Existing Financing), then give such written advice to Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within such five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b))day period, Seller shall notify be deemed to have agreed to satisfy or cure all such defects or objections set forth in Purchaser's notice. If Seller shall advise Purchaser in writing that it elects Seller does not intend to remove satisfy or cure any specific encumbrances which Seller is not obligated to satisfy or cure under the samesecond preceding sentence, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to may elect either (ia) to terminate this Agreement by written notice delivered to Seller (Seller, in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit Xxxxxxx Money shall be immediately refunded to Purchaser and this Agreement shall be of no party hereto further force or effect and Purchaser and Seller shall have any no further rights, obligations in connection herewith or liabilities hereunder, except under those provisions that for the obligations hereunder which expressly survive the Closing or a termination of this Agreement)termination, or (iib) to accept title to the Property subject to such Unpermitted Exception(s) without a reduction inspecific encumbrances, abatement of, or credit against, the Purchase Pricein which case such specific encumbrances shall become additional "Permitted Exceptions". The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. In the right event Seller fails or refuses to use a portion of the Purchase Price cure any defects and objections which are required herein to pay and discharge the same, either be satisfied or cured by way of payment or by alternative manner reasonably satisfactory Seller prior to the Title CompanyClosing, then (i) Purchaser may terminate this Agreement by written notice to Seller, in which event the Xxxxxxx Money shall be immediately refunded to Purchaser, and this Agreement shall be of no further force and effect and Purchaser and Seller shall have no further rights, obligations or liabilities hereunder, except for the same shall not be deemed to be Unpermitted Exceptionsobligations which expressly survive termination.
Appears in 1 contract
Title to the Property. (a) As Borrower will give Lender notice of any Casualty immediately after it occurs and will give Lender notice of any Condemnation Proceeding immediately after Borrower receives notice of commencement or notice that such a condition Condemnation Proceeding will be commencing. Borrower immediately will deliver to Lender copies of all documents Borrower delivers or receives relating to the Closing Chicago Title Insurance Company (Casualty or the “Title Company”) shall have committed to insure Purchaser Condemnation Proceeding, as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined)case may be.
(b) Seller shall orderBorrower authorizes Lender, at PurchaserLender’s sole cost option, to act on Borrower’s behalf to collect, adjust and expensecompromise any claims for loss, within five damage or destruction under the Policies on such terms as Lender determines in Lender’s discretion as to a Casualty where the Proceeds (5as defined in 7.2(c) days following the date hereofbelow), a commitment for an owner’s fee title insurance policy or policies with respect to the Property exceed $1,000,000.00 (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated SurveyProceeds Threshold”). If Borrower authorizes Lender to act, at Lender’s option, on Borrower’s behalf in connection with any exceptions(sCondemnation Proceeding as to a Casualty where the Proceeds (as defined in 7.2(c) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”below), subject exceed the Proceeds Threshold. Borrower will execute and deliver to which Purchaser is unwilling Lender all documents requested by Lender and all documents as may be required by Law to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, confirm such authorizations. Nothing in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have will be construed to advance, limit or prevent Lender from joining with Borrower either as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title co-defendant or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained co-plaintiff in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement)Condemnation Proceeding.
(c) In If the event that Seller Proceeds Threshold is unablenot exceeded, or if Lender elects notnot to act on Borrower’s behalf as provided in this Section, then Borrower promptly will file and prosecute all claims (including Lender’s claims) relating to the Casualty and will prosecute or defend (including defense of Lender’s interest) any Condemnation Proceeding. Borrower will have the authority to settle or compromise the claims or Condemnation Proceeding, as the case may be, provided that Lender has approved in Lender’s reasonable discretion any compromise or settlement that exceeds $1,000,000.00. Any check for Insurance Proceeds or Condemnation Awards, as the case may be (the “Proceeds”) will be made payable to Lender and Borrower. Borrower will endorse the check to Lender immediately upon Lender presenting the check to Borrower for endorsement or if Borrower receives the check first, will endorse the check immediately upon receipt and forward it to Lender. If any Proceeds are paid to Borrower, Borrower immediately will deposit the Proceeds with Lender, to eliminate all Unpermitted Exceptions be applied or disbursed in accordance with the provisions of this Section 4.1.1, or to arrange Deed of Trust. Lender will be responsible for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of only the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, Proceeds actually received by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) aboveLender.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer marketable and insurable fee simple title to the Closing Chicago Title Insurance Company Real Property, the Appurtenances and the Improvements, by duly executed and acknowledged grant deed substantially in the form of Exhibit D attached hereto and incorporated herein by this reference (the “Deed”). Evidence of delivery of marketable and insurable fee simple title shall be the issuance by Title Company”) shall have committed Company to insure Purchaser as the fee owner Buyer of the Property a 2006 ALTA Extended Coverage Owner’s Policy of Title Insurance in the amount of the Purchase Price by issuance Price, insuring fee simple title to the Real Property, the Appurtenances and the Improvements in Buyer, and otherwise in the form of an ALTA ownerthe Pro Forma Owner’s title insurance policy Policy (as defined below), including, without limitation any and all endorsements contained therein (collectively, the “Owner’s Title Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) At the Closing, Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee transfer title insurance policy or policies with respect to the Personal Property by a xxxx of sale in the form of Exhibit E attached hereto and incorporated herein by this reference (the “Title CommitmentXxxx of Sale”), such title to be free of any liens, encumbrances or interests.
(c) from At the Title CompanyClosing, and Seller shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to transfer title to the Intangible Property that Purchaser receives from the Title Company, and the Survey by such instruments as Buyer may reasonably determine to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein callednecessary, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement an assignment of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Intangible Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided form attached of Exhibit F attached hereto and incorporated herein by this reference (the removal “Assignment of such monetary lien shall not be the responsibility of any tenant at the Intangible Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing”), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return which Buyer shall assume only those Service Contracts (as defined in Paragraph 5(c) below) and Other Documents (as defined in Paragraph 5(c) below) which appear on the Deposit Schedule of Agreements (as defined below) and which are not required to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the be terminated prior to Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, pursuant to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out ofParagraph 14(b) below (collectively, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion“Assumed Contracts”), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Orchard Supply Hardware Stores Corp)
Title to the Property. Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant Deed and leasehold title shall be conveyed by the free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "C" attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) As a condition Purchaser has obtained from New Century Title Company (herein referred to as "Title Company") its commitment (hereinafter referred to as the "Title Commitment") to issue to Purchaser upon the recording of both the Grant Deed conveying title to the Closing Chicago Title Insurance Company (Land and Improvements from Seller to Purchaser and the “Title Company”) shall have committed to insure Purchaser as the fee owner assignment of the Property Ground Leases, the payment of the Purchase Price, and the payment to the Title Company of the policy premium therefor, an ALTA owner's policy of title insurance, in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring good and marketable fee simple record title insurance policy (to the “Owner’s Policy”) Land and Improvements and leasehold interest in the Ground Leases to be in Purchaser without exception (including any standard form issued exception) except for the Permitted Exceptions, which contains the following endorsements to the extent the same are available in the State of California: comprehensive, zoning, covenants and restrictions, creditor's rights, survey, and access (provided, however that Purchaser shall be solely responsible for the portion of the premium charged by the Title Company in order to upgrade the State title policy from a CLTA policy to an ALTA policy and the cost of California, subject only any premiums charged by Title Company in connection with any and all such endorsements). The title policy issued pursuant to the Permitted Exceptions Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable. The title policy issued pursuant to the Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. The title policy issued pursuant to the Title Commitment shall also contain such other special endorsements as Purchaser shall reasonably require (the "Endorsements"). Purchaser has delivered to Seller a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent surveys of the Property. From time to time, Purchaser may request an update to the effective date of such Title Commitment or may update the date of the survey and give notice to Seller shall orderof all defects or objections appearing subsequent to the effective date of the Title Commitment (or previous update thereof) or survey, at Purchaser’s sole cost as the case may be (including any reduction of parking spaces). Seller agrees to cause the satisfaction and expense, release of the monetary encumbrances on the Property in favor of Istar Financial. All matters disclosed by an updated Title Commitment and/or survey and not objected to by Purchaser within five (5) days following the date hereofafter receipt of such updates shall be deemed to be additional "Permitted Exceptions"; provided, a commitment for an owner’s fee title insurance policy or policies with respect however, encumbrances created by Seller in violation of this Agreement, taxes due and payable prior to the Property (the “Title Commitment”) from the Title CompanyClosing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey in no event be deemed to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Permitted Exceptions. Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property five (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (105) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, such notice of title defects or objections from Purchaser to advise Purchaser in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions writing which of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as such title defects or objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser Seller does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent intend to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title satisfy or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purposecure; provided, however, Seller hereby agrees that Seller shall cause the removal (satisfy or cure prior to Closing any such defects or objections consisting of encumbrances created by bonding Seller in violation of this Agreement, any taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or otherwise) of any monetary materialmen's liens encumbering the Property (and other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in encumbrances. In the event Seller elects not fails to remove all monetary liens (other than the Existing Financing), then give such written advice to Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within such five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b))day period, Seller shall notify be deemed to have agreed to satisfy or cure all such defects or objections set forth in Purchaser's notice. If Seller shall advise Purchaser in writing that it elects Seller does not intend to remove satisfy or cure any specific encumbrances which Seller is not obligated to satisfy or cure under the samesecond preceding sentence, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to may elect either (ia) to terminate this Agreement by written notice delivered to Seller (Seller, in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit Xxxxxxx Money shall be immediately refunded to Purchaser and this Agreement shall be of no party hereto further force or effect and Purchaser and Seller shall have any no further rights, obligations in connection herewith or liabilities hereunder, except under those provisions that for the obligations hereunder which expressly survive the Closing or a termination of this Agreement)termination, or (iib) to accept title to the Property subject to such Unpermitted Exception(s) without a reduction inspecific encumbrances, abatement of, or credit against, the Purchase Pricein which case such specific encumbrances shall become additional "Permitted Exceptions". The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. In the right event Seller fails or refuses to use a portion of the Purchase Price cure any defects and objections which are required herein to pay and discharge the same, either be satisfied or cured by way of payment or by alternative manner reasonably satisfactory Seller prior to the Title CompanyClosing, then (i) Purchaser may terminate this Agreement by written notice to Seller, in which event the Xxxxxxx Money shall be immediately refunded to Purchaser, and this Agreement shall be of no further force and effect and Purchaser and Seller shall have no further rights, obligations or liabilities hereunder, except for the same shall not be deemed to be Unpermitted Exceptionsobligations which expressly survive termination.
Appears in 1 contract
Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner ground lessee of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an ownera ground lessee’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Title to the Property. (a) As a condition to Purchaser will have until the Closing Chicago Title Insurance Company date (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “"Title Objection Notice”Date") thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called after the “Extension Period”) should Seller elect Effective Date, to cure any such examine title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth Property and to notify Seller in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal writing of any Unpermitted Exception including, without limitation, defects or objections affecting the marketability of title to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing FinancingPermitted Exceptions as hereinafter defined) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of that are disclosed by such monetary lien shall not be the responsibility of any tenant at the Property; provided furthertitle examination, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written which notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory accompanied by copies of all relevant documents of record regarding, creating or relating to Purchaser in its reasonable discretion), and to convey such title defect or objection (such defects or objections affecting marketability of title to the Property to hereinafter be collectively called "Title Defects"). Anything set forth in accordance with the terms immediately preceding sentence to the contrary notwithstanding, the following listed items will in no event be Title Defects: (i) taxes for the year of this Agreement Closing and subsequent years; (ii) riparian rights of owners of adjoining properties or upstream users, and the right and easement of Seller to continue to drain the runoff from any adjoining property of Seller in the manner currently drained; (iii) general utility, roadway and other easement(s) in favor of any telephone, gas or other utility company, Xxxxxx County, Georgia, or any other local, state or federal governmental agency or entity; (iv) matters that would be disclosed by an accurate survey and inspection of the Property; and (v) any discrepancy between the description set forth on Exhibit "A" hereto and the description by which Seller acquired the tract of which the Property constitutes all or a part (the items set forth in (i) through (v) immediately above being hereinafter collectively referred to as the "Permitted Exceptions"). If Purchaser fails to notify Seller of any Title Defects on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b))Title Objection Date, Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election all purposes of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return Purchaser will thereafter be precluded from raising any objection to the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination status of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction inProperty. Other than the Title Defects, abatement of, or credit against, all matters of which Purchaser has actual knowledge and all matters that would be disclosed by the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be appropriate public records by an election under clause (ii) above.
(d) If, examination thereof on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under effective date of this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not Agreement will for all purposes be deemed to be Unpermitted Permitted Exceptions.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Title to the Property. (a) As a condition At the Closing, the Transferors shall convey to Transferee fee simple title to the Real Property and the Improvements pursuant to one or more grant deeds (the "Grant Deeds") in the form of Exhibit D attached hereto, subject only to the Existing Loans and the other exceptions to title approved by Transferee in writing prior to the Title Notification Date (as defined below) (collectively, the "Permitted Exceptions"). Evidence of delivery of fee simple title shall be the issuance to Transferee at Closing Chicago by Title Company of its ALTA Owner's Extended Coverage Policy of Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s Agreed Value insuring fee simple title insurance policy (to the “Owner’s Policy”) Real Property, the Appurtenances and the Improvements in the standard form issued by the Title Company in the State of CaliforniaTransferee, subject only to the Permitted Exceptions (the "Title Policy"). The Title Policy shall provide full coverage against mechanics' and materialmen's liens arising out of the construction, repair or alteration of any of the Improvements, including any tenant improvements therein, and shall contain such special endorsements as hereinafter definedTransferee may reasonably require (the "Endorsements"). The Title Company shall also provide for reinsurance with direct access to the reinsurers and in such amounts as Transferee may require. The Transferors shall execute an "Owner's Affidavit" in form reasonably satisfactory to the Transferors to support the issuance of the Title Policy. The Transferors shall have the right, at the Transferors' sole cost and expense, to obtain their own policy of title insurance, provided that the issuance of such policy shall not constitute a condition to the Transferors' obligations hereunder.
(b) Seller At the Closing, the Transferors shall order, at Purchaser’s sole cost and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to transfer title to the Property that Purchaser receives from Personal Property, subject to the Title CompanyExisting Loans, and by one or more warranty bills of sale in the Survey form attached hereto as Exhibit E (the "Bills of Sale"), such title to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller free of any liens, encumbrances or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey interests other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In At the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out ofClosing, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey Transferors shall transfer title to the Intangible Property, subject to the Existing Loans, by one or more assignments of Intangible Property in accordance with the terms form attached hereto as Exhibit F (the "Assignments of this Agreement on Intangible Property") and one or before more assignments of the Closing Date Leases in the form attached hereto as Exhibit G (whether or not the Closing is adjourned as provided in Section 4.1.1(b)"Assignments of Leases"), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title to be free of any liens, encumbrances or interests other than the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Permitted Exceptions.
Appears in 1 contract
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer title to the Closing Chicago real estate portion of the Property by duly executed and acknowledged grant deed in a standard title company form (the "GRANT DEED") together with a separate (non-recordable) transfer tax declaration (the "TRANSFER TAX DECLARATION"). Conclusive evidence of delivery of marketable and insurable fee simple title shall be the issuance by First American Title Insurance Company (the “Title Company”"TITLE COMPANY") shall have committed to insure Purchaser as of an ALTA extended coverage policy of title insurance (the fee owner of the Property "TITLE POLICY") in the amount of the Purchase Price by issuance purchase price for the Property insuring fee simple title to the real estate portion of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and Property in the standard form issued by the Title Company in the State of CaliforniaBuyer, subject only to a lien for real property taxes and assessments not yet delinquent and such other exceptions as have been approved by Buyer (the Permitted "APPROVED EXCEPTIONS") and containing endorsements reasonably requested by Buyer. If, after the Closing, Buyer shall discover any defect in title not covered by the representations and warranties of Seller in Section 13.1, it shall look solely to the Title Policy for any recovery. The Approved Exceptions shall include but not be limited to (as hereinafter defined).
a) the Repurchase Option and (b) Seller shall ordercovenants, at Purchaser’s sole cost conditions, restrictions, easements and expense, within five (5) days following the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently similar rights created with the delivery thereof consent of Buyer, which consent Buyer shall not unreasonably withhold or delay. Buyer and Seller agree that it shall be reasonable for Buyer to Seller withhold its consent if Buyer reasonably determines that such covenants, conditions, restrictions, easements or Seller’s attorneys. Purchaser shall have other rights will result in the right to order an update to Seller’s existing survey occurrence of any of the following:
(i) material interference with Buyer's intended development or a new survey use of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept title any material impact upon the location of the buildings to be constructed on the Property subject by Buyer as shown on Buyer's site plan as approved by Seller (pursuant to such Unpermitted Exception(sSection 7.1) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted ExceptionsPlanning Commission ("BUYER'S APPROVED SITE PLAN").
Appears in 1 contract
Title to the Property. (a) As a condition to the Closing Chicago Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of California, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller shall order, at Purchaser’s sole cost and expenseBuyer shall, within five (5) days following after the date hereofEffective Date, order (i) a commitment for an owner’s fee title insurance policy or policies with respect to (the Property “Commitment”), (ii) a photocopy of all documents (“Title Documents”) describing all title exceptions shown on the Commitment (the “Title CommitmentExceptions”) from the Title Company), and shall cause the (iii) if Buyer so elects, an ALTA Land Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property Land (the “Updated Survey”). If Buyer objects to any exceptions(smatters disclosed by the Commitment, Title Documents or Survey, Buyer shall furnish Seller with a written statement thereof (the “Title Notice”) to within twenty (20) days from the Effective Date of this Agreement (the “Title Approval Date”) specifying in detail all such title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions and survey objections (such exception(s) being herein called, collectively, the “Unpermitted ExceptionsTitle Objections”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (. All matters shown on the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, Survey and all Title Exceptions which are not objected to by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject Buyer prior to the terms and conditions of this Section 4.1Title Approval Date shall be “Permitted Exceptions”. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect no obligation to cure any such title objectionTitle Objections noted by Buyer; provided, provided however, that Seller shall notify Purchaserobtain a satisfaction and release or bond over any monetary liens, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceedingand all mortgages, to make any payments or otherwise to incur any expense mechanics’ liens and judgment liens (collectively, “Monetary Liens”). If Buyer notifies Seller in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception againstwriting that Buyer has Title Objections, or collection Seller shall have five (5) business days after receipt of the same out of, Title Notice to notify Buyer in writing (a) that Seller will use reasonable efforts to remove such Title Objections on or before the Property, notwithstanding Closing; provided that Seller may have attempted to do so, or may have adjourned extend the Scheduled Closing Date for such purposeperiod as shall be required to effect such cure, but not beyond thirty (30) days; provided, however, Seller shall cause the removal or (by bonding or otherwiseb) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) in the aggregate provided the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens cause such Title Objections to be removed. The procurement by Seller of a commitment for the issuance of the Title Policy (other than the Existing Financingherein defined) or an endorsement thereto insuring Buyer against any Title Objection which was disapproved pursuant to this Section 3(a) shall be deemed a cure by Seller of such disapproval (a “Seller’s Endorsement”). If Seller gives Buyer notice under clause (b) above, then Purchaser Buyer shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien days (the “Title Decision Date”) in which event Escrowee shall, provided to notify Seller that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance Buyer will nevertheless proceed with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion), purchase and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement), or (ii) accept take title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement ofTitle Objections, or credit againstthat Buyer will terminate this Agreement. If this Agreement is terminated pursuant to the foregoing provisions of this paragraph (or as set forth hereinbelow), then neither party shall have any further rights or obligations hereunder (except for any indemnity obligations of Buyer pursuant to the other provisions of this Agreement), the Deposit shall be returned to Buyer and each party shall bear its own costs incurred hereunder. If Buyer shall fail to notify Seller of its election within said five-day period, Buyer shall be deemed to have elected to proceed with the purchase and take title to the Property subject to such Title Objections. If Seller gives Buyer notice under clause (a) above and, if despite its reasonable efforts to do so, Seller cannot satisfy such objections (other than the Monetary Liens, which shall be satisfied or bonded over by Seller) on or before Closing or, if Seller elects in its sole discretion to extend the Closing, on or before the expiration of such additional thirty (30) day period, Buyer shall have the option to waive its Title Objections and proceed to Closing or terminate this Agreement. Buyer acknowledges that the termination of the transaction pursuant to this section of the Agreement shall not entitle Buyer to receive reimbursement for any expenses or to seek specific performance or any other legal or equitable remedy against Seller. Notwithstanding any term or provision herein to the contrary, in no event shall the Title Decision Date extend beyond the Study Period. In the event Buyer does not terminate this Agreement at the end of the Study Period and the Title Decision Date has not yet occurred, Buyer shall be deemed to have waived any outstanding Title Objections and shall have no further right to terminate this Agreement in connection with any title objection.
(b) The Property shall be conveyed subject to the following matters, which are hereinafter referred to as the “Permitted Exceptions”:
(i) those matters that either are not objected to in writing within the time periods provided in Section 3 hereof, or if objected to in writing by Buyer, are those which Seller has elected not to remove or cure, or has been unable to remove or cure, and subject to which Buyer has elected or is deemed to have elected to accept the conveyance of the Property;
(ii) 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;
(iii) 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;
(iv) all items shown on the Commitment and Survey and all Title Exceptions which are not objected to by Buyer or waived or deemed waived by Buyer in accordance with Section 3 hereof;
(v) the standard or printed exclusions and standard or printed exceptions in the form of Title Policy except for Seller’s Endorsement the cost of which shall be paid by Seller; and
(vi) rights of parties in possession under existing Leases which have been delivered to Buyer pursuant to Section 4 hereof.
(c) At Closing, Seller shall convey and transfer to Buyer fee simple title to the Real Property and Improvements, by execution and delivery of the special warranty deed. Evidence of delivery of such title shall be the issuance by the Title Company of an ALTA Owner’s Policy of Title Insurance (the “Title Policy”) covering the Real Property and Improvements, in the full amount of the Purchase Price, subject only to the Permitted Exceptions. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) Buyer shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on pay the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right to use a portion cost of the Purchase Price to pay Title Policy and discharge the same, either all extended coverage and endorsements requested by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted ExceptionsBuyer.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Capital Lease Funding Inc)
Title to the Property. (a) As a condition to the Closing Chicago Closing, Commonwealth Land Title Insurance Company (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA a TLTA T-1 owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of CaliforniaTexas, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Seller Purchaser shall order, at Purchaser’s its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title CompanyCompany and (ii) a survey of the Property prepared by a surveyor registered in the State of Texas, certified by said surveyor to Purchaser and Sellers as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with those true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title CompanyProperty, and the Survey to be delivered to Purchaser and Purchaser’s Sellers’ attorneys concurrently with the delivery thereof to Seller Purchaser or SellerPurchaser’s attorneys. Purchaser shall have Republic Title of Texas, Inc. will provide title evidence in connection with the right to order an update to SellerTitle Company’s existing survey or a new survey issuance of the Property Owner’s Policy. Upon Buyer’s receipt of the Survey and delivery thereof to Seller and the Title Company, Seller and Buyer shall reasonably cooperate in good faith with the Title Company to determine the final current legal descriptions of the Land that will be included in the Deeds (as hereinafter defined) prior to the “Updated Survey”)expiration of the Due Diligence Period. If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller Sellers with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt on or before the expiration of both the Title Commitment and the Updated SurveyDue Diligence Period, by Purchaser’s attorneys, SellerTIME BEING OF THE ESSENCE. Sellers, in its their sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period Sellers prior to the expiration of the Due Diligence Period unless (i) such Unpermitted Exception was first raised by disclosed to Purchaser after the Title Company subsequent to the date expiration of the Title CommitmentDue Diligence Period, and (ii) Purchaser shall notify Seller Sellers of the same within five (5) Business Days after the Title Company shall notify Purchaser following disclosure of such Unpermitted Exception to Purchaser (failure to so notify Seller Sellers shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, SellerSellers, in its their sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty fifteen (6015) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection), provided that Seller Sellers shall notify Purchaser, in writing, within ten five (105) days Business Days after receipt by Seller Sellers of the Title Objection Notice, whether or not it they will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller Sellers shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller Sellers may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller Sellers shall (x) satisfy any mortgage or deed of trust placed on the Property by Sellers or expressly assumed by Sellers, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of any other monetary liens encumbering the Property (other than the Existing Financing) in which are of an ascertainable amount and do not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) 25,000, in the aggregate provided the removal of such monetary lien shall aggregate, and are not be the responsibility of any tenant at of the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement).
(c) In the event that Seller is Sellers are unable, or elects elect not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property (which title insurance must be satisfactory to Purchaser in its reasonable discretion)Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller Sellers shall notify Purchaser that it elects they elect not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of SellerSellers, by delivery of written notice to Seller Sellers within five (5) Business Days following receipt of notice from Seller Sellers of its their election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller Sellers (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Sellers have notified Purchaser as and in the manner provided by Section 3.1.2 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1.2 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is Sellers are obligated to discharge under this Agreement, Seller Sellers shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed, $25,000, in the aggregate, to either (i) arrange, at Sellers’ cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use a any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Samples: Contract of Sale (KBS Real Estate Investment Trust III, Inc.)
Title to the Property. (a) As a condition At the Closing, Seller shall convey to Buyer indefeasible and insurable fee simple title to the Closing Real Property and Improvements, by duly executed and acknowledged special warranty deed substantially in the form attached hereto as Exhibit C (the "Deed"). Evidence of delivery of indefeasible and insurable fee simple title shall be the issuance by Chicago Title Insurance Company (the “"Title Company”") shall have committed to insure Purchaser as Buyer at the fee owner Closing of an Owner's Policy of Title Insurance in the Property form promulgated by the Texas State Board of Insurance in the amount of the Purchase Price by issuance of an ALTA owner’s Price, insuring fee simple title insurance policy (to the “Owner’s Policy”) and Real Property in the standard form issued by the Title Company in the State of CaliforniaBuyer, subject only to such exceptions as Buyer shall approve or shall be deemed to have approved pursuant to Paragraph 5, below (the Permitted Exceptions "Title Policy"). The Title Policy shall provide full coverage against mechanics' and materialmen's liens, the printed form survey exception shall be limited to "shortages in area" at Buyer's expense and the standard exception for taxes shall read: "standby fees and taxes for the year 1997 and subsequent years, and subsequent assessments for prior years due to change in land usage or ownership" and shall contain such special endorsements as Buyer may, at Buyer's expense, require, including, without limitation, any endorsements required as a condition to Buyer's approval of any title exceptions pursuant to Paragraph 5, below (as hereinafter definedthe "Endorsements").
(b) Seller shall order, at Purchaser’s sole cost and expense, within five (5) days following At the date hereof, a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company, and shall cause the Title Commitment, together with those copies of all instruments giving rise to any defects or exceptions to title to the Property that Purchaser receives from the Title Company, and the Survey to be delivered to Purchaser and Purchaser’s attorneys concurrently with the delivery thereof to Seller or Seller’s attorneys. Purchaser shall have the right to order an update to Seller’s existing survey or a new survey of the Property (the “Updated Survey”). If any exceptions(s) to title to the Property should appear in the Title Commitment or the Updated Survey other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, and Purchaser shall provide Seller with written notice (the “Title Objection Notice”) thereof within ten (10) days after receipt of both the Title Commitment and the Updated Survey, by Purchaser’s attorneys, Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any Unpermitted Exception of which Purchaser does not notify Seller within such ten (10) day period unless (i) such Unpermitted Exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) Business Days after the Title Company shall notify Purchaser of such Unpermitted Exception (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed sixty (60) days (such period of time being herein called the “Extension Period”) should Seller elect to cure any such title objection, provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this AgreementClosing, Seller shall not under any circumstance be required or obligated transfer all of Seller's right, title and interest in and to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall cause the removal (Tangible Personal Property by bonding or otherwise) of any monetary liens encumbering the Property (other than the Existing Financing) in an amount not to exceed Ten Thousand and 00/100 Dollars ($10,000.00) a bill xx sale in the aggregate provided form attached hereto as Exhibit D (the removal of such monetary lien shall not be the responsibility of any tenant at the Property; provided further, however, that in the event Seller elects not to remove all monetary liens (other than the Existing Financing), then Purchaser shall have the right to terminate this Agreement by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such monetary lien (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement"Bill xx Sale").
(c) In At the event that Closing, Seller is unableshall transfer all of Seller's right, or elects not, title and interest in and to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out ofIntangible Property, the Property "Assumed Contracts" (which title insurance must be satisfactory to Purchaser in its reasonable discretionas hereinafter defined), the "Permits" (as hereinafter defined), and to convey title to the Property "Warranties and Guaranties" (as hereafter defined) by an assignment of intangible property in accordance with the terms form attached hereto as Exhibit E (the "Assignment of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)Intangible Property"), Seller and shall notify Purchaser that it elects not to remove assign the same, Leases by an assignment of leases in which event Purchaser shall have the right, form attached hereto as its sole remedy for such election Exhibit F (the "Assignment of Seller, by delivery of written notice to Seller within five (5) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event Escrowee shall, provided that Purchaser is not otherwise in default of its obligations pursuant to this Agreement, return the Deposit to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this AgreementLeases"), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on Anything contained herein to the Closing Date, there are contrary notwithstanding and notwithstanding any liens approval or encumbrances that Seller is obligated to discharge under this Agreementconsent given by Buyer hereunder, Seller shall have cause all monetary encumbrances caused by Seller, including without limitation all mechanics' liens to be released (or insured around to Buyer's satisfaction) from the right to use a portion of the Purchase Price to pay and discharge the same, either by way of payment Property on or by alternative manner reasonably satisfactory prior to the Closing and shall cause the Title Company, and Company to insure title to the same shall not be deemed to be Unpermitted ExceptionsProperty as vested in Buyer without any exception for such matters.
Appears in 1 contract
Samples: Purchase and Sale Agreement (American Industrial Properties Reit Inc)
