Conditions of Title. (a) Buyer shall obtain within seven days after the Contract Date a Commitment for Title Insurance, (hereinafter the “Commitment”), issued by the Title Company, covering the Property, together with legible copies of all documents of record described therein. (b) Buyer shall, within ten (10) days after the receipt of the Commitment, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use of the Property (hereinafter a “Material Title Defect”). (c) Seller may within 10 days of notice of the Material Title Defect, in Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior to the end of the Due Diligence Period. For Material Title Defects that may be cured with the payment of money, Seller may elect to cause such Material Title Defects to be cured by paying the obligation with the Purchase Price proceeds at the Closing. Seller may cure Material Title Defect or inform Buyer that such Material Title Defect will not be cured. (d) If Seller elects not to remove or cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate). (e) Buyer’s election to waive the Material Title Defect must be made on or before the expiration of the Due Diligence Period. In the event Buyer fails to make its election after Buyer’s timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closing, Buyer shall be deemed to have rejected the Material Title Defect and the transaction will terminate in accordance with this Article 3.0
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Conditions of Title. (a) Buyer Upon execution of this Agreement, Seller shall obtain within seven days after order an updated preliminary title report or commitment (the Contract Date a Commitment for "Title Insurance, (hereinafter the “Commitment”), issued by Report") from the Title Company, covering the Propertywhich shall be delivered to Buyer, together with legible copies of all underlying documents of record described relating to title exceptions referred to therein.
(b) Buyer shall, within promptly upon Seller's receipt thereof, but in no event later than ten (10) days after the receipt Effective Date. Seller shall also furnish to Buyer within the Delivery Period any existing survey of the Commitment, give written notice Property in Seller's possession. Seller has caused to Seller specifying any be prepared and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use has delivered to Buyer a survey of the Property (hereinafter the "Existing Survey") dated March 5, 2014, certified to Seller, and prepared by E▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Associates, Ltd., an Illinois Professional Design Firm, License No. 184-002910. Within ten (10) business days after the Effective Date, Seller shall cause the Existing Survey to be certified to Buyer and the Title Company (the Existing Survey, as certified to Buyer and the Title Company being referred to herein as the "Survey").
(b) Within five (5) business days after Buyer's receipt of the Title Report and Survey (the "Title Review Date"), Buyer shall furnish Seller with a “Material written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, "Objections"). Within two (2) business days after Buyer's receipt of the Title Defect”Report and Survey, Buyer shall give Seller written notice that it has received such items, and such notice shall state the date that shall be deemed to be the Title Review Date pursuant to the preceding sentence. In the event the Title Company amends or updates the Title Report after the Title Review Date, which includes copies of any new title exceptions, or modifications to existing title exceptions (each, a "Title Report Update"), Buyer shall furnish Seller with a written statement of Objections to any material matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a "Title Update Review Period"). Should Buyer fail to notify Seller, in writing, of any Objections in the Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which shall be considered to be "Conditions of Title" as defined in Section 4.1(e) below.
(c) If Seller may receives a timely Objection in accordance with Section 4.1(b) ("Buyer's Notice"), Seller shall have the right, but not the obligation, within 10 five (5) business days after receipt of notice of the Material Title DefectBuyer's Notice ("Seller's Response Period"), in Seller’s sole discretion, to elect to cause attempt to cure any such Material Title Defect matter upon written notice to be removed or cured Buyer ("Seller's Response"), and may extend the Closing Date for up to fifteen (15) business days to allow such cure by written notice to Buyer delivered no later than the date that is ten (10) days prior to the end Closing Date. If Seller does not give any Seller's Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all of the Due Diligence Periodfollowing matters or items on or prior to the Closing (i) monetary liens voluntarily placed on the Property by Seller, including, without limitation, the liens of any deeds of trust or other loan documents secured by the Property, (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent as of the Closing Date, (iii) matters that have been voluntarily placed against the Property by Seller (and not tenants of the Property or other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the provisions hereof, and (iv) third-party mechanics' liens encumbering the Property and arising out of contracts between Seller and a contractor in the aggregate maximum of $100,000. For Material Title Defects that may be cured with At the payment of moneyClosing, Seller may elect shall be entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller may cure Material Title Defect payment or inform Buyer that satisfaction of such Material Title Defect will not be curedliens.
(d) If Seller elects (or is deemed to have elected) not to remove attempt to cure any Objections raised in any Buyer's Notice timely delivered by Buyer to Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure a Material Title Defect, any such Objection but then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price does not for any reason effect such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) Buyer’s election to waive the Material Title Defect must be made cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller on or before the later to occur of (1) the date of expiration of the Due Diligence PeriodContingency Period and (2) the date that is three (3) business days after (as applicable) (i) its receipt of Seller's Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller's Response Period if Seller does not deliver a Seller's Response or (iii) Seller's failure to cure by the Closing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller's Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become "Conditions of Title" under Section 4.1(e). If the Material Closing is not consummated for any reason other than (i) Seller's default hereunder or (ii) a termination of this Agreement by Buyer pursuant to a right to do so expressly provided in this Agreement, Buyer shall be responsible for any title or escrow cancellation charges; in the event of a situation under subsections (i) or (ii) above, Seller shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the "Deed") subject to no exceptions other than:
(1) Interests of tenants in possession under the Leases;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments; and
(4) Any exceptions disclosed by the Title Defect and Report, any Title Report Update and/or the transaction will terminate Survey which are approved or deemed approved by Buyer in accordance with this Article 3.0IV above. All of the foregoing exceptions shall be referred to collectively as the "Conditions of Title". Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that, subject to warranties contained in the Deed and Seller's other representations, warranties and covenants herein, Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital - Retail Centers of America, Inc.)
Conditions of Title. (a) Buyer shall obtain within seven days after the Contract Date a Commitment for Title Insurance, has obtained (hereinafter i) an updated preliminary title report or commitment (the “CommitmentTitle Report”) from Premier Title, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Title Company”) and (ii) any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) desired by Buyer or necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). If Buyer has not already done so, issued by Buyer’s shall provide to Seller a copy of (x) the Title Report, together with copies of all underlying documents relating to title exceptions referred to therein and (y) the Survey, which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Propertyentire cost of the Title Report and the Survey. If Closing does not occur, together Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with legible copies the surveyor (to the extent that such assignment is permitted under Buyer’s contract with the surveyor) and in such event Seller shall reimburse Buyer for the cost of all documents of record described thereinthe Survey.
(b) Within one (1) business day after the Effective Date (the “Title Review Date”), Buyer shallshall furnish Seller with a written statement of objections, if any, to conditions to the title to the Property which were not disclosed in the title report and survey previously delivered to Buyer by Seller, including, without limitation, any objections to any matter first disclosed by the Survey (collectively, “Objections”). In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within ten three (103) business days after the its receipt of the Commitmentsuch Title Report Update (each, give written notice a “Title Update Review Period”). Should Buyer fail to notify Seller specifying in writing of any and each title exception contained Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of the Property (hereinafter a “Material Title Defect”)Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), in Seller’s sole discretion(ii) real estate tax liens, elect to cause such Material Title Defect to be removed other than liens for taxes and assessments not yet delinquent and (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or cured prior other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect any Objections related to waive each objection to a Material Title Defect defects in title caused by the Seller and accept the Material Title Defect as provided raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(i) Interests of tenants in possession under the Leases;
(ii) Matters created by, or with the written consent of, Buyer;
(iii) Non-delinquent liens for real estate taxes and assessments; and
(iv) Any exceptions disclosed by the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above, and any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Comstock Homebuilding Companies, Inc.)
Conditions of Title. (a) On or prior to the Effective Date, Seller shall deliver or make available to Buyer shall obtain within seven days after a copy of the Contract Date a Commitment for Title Insurance, title insurance policy (hereinafter the “CommitmentTitle Report”), issued by ) that Seller received from the Title Company, covering Company when Seller purchased the Property, together with legible copies of all underlying documents relating to title exceptions referred to therein, promptly upon Seller’s receipt thereof. Seller shall also furnish or make available to Buyer prior to the Effective Date a current survey of record described thereinthe Property. Buyer shall immediately order an update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, which shall be certified to the Title Company, Buyer and Seller. Buyer shall pay the cost of any recertification of the Survey.
(b) Buyer shall, within ten Within five (105) business days after the Effective Date (the “Title Review Date”), Buyer shall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within five (5) business days after its receipt of the Commitmentsuch Title Report Update (each, give written notice a “Title Update Review Period”). Should Buyer fail to notify Seller specifying in writing of any and each title exception contained Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of the Property (hereinafter a “Material Title Defect”)Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice of trust liens or security interests against the Material Title DefectProperty, in each case granted by Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, and (iii) that have been voluntarily placed against the Property by Seller (and not third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the payment or satisfaction of such liens, and may cure any Objection by causing the Title Company to insure against collection of the same out of the Property. Seller acknowledges that the tenant under the Equinix Lease shall continue to be responsible under and in accordance with the terms of the Equinix Lease for the removal of any mechanic’s or materialman’s liens created by Seller during Seller’s period of ownership and existing as of the Closing. Seller may cure Material Title Defect or inform Buyer that such Material Title Defect will not be cured.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit B attached hereto (the “Deed”) subject to no exceptions other than:
(1) Interests of tenant under the Equnix Lease;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments; and
(4) Any exceptions disclosed by the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above, and any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Conditions of Title. (a) Buyer shall obtain within seven days after order a Title Commitment from the Contract Date a Commitment Title Company for Title Insurance, the Unit (hereinafter the “Title Commitment”), issued by the Title Company, covering the Property, together with legible copies of all documents of record described therein.
(b) Prior to the end of the Contingency Period (the “Title Review Date”), Buyer shallshall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the ALTA Survey ordered by Buyer for the Unit (the “Surveys”) (collectively, “Objections”). In the event the Title Company amends or updates the Title Commitment after the Title Review Date (each, a “Title Commitment Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Commitment Update within ten three (103) business days after the its receipt of such Title Commitment Update (each, a “Title Update Review Period”); provided, that, the Commitment, give written notice Buyer shall be prohibited from objecting to any matters that were included in a prior Title Commitment or Title Commitment Update. Should Buyer fail to notify Seller specifying in writing of any and each title exception contained Objections in the Title Commitment which would materially impair prior to the Title Review Date, or prohibit Buyer’s purchase, financing, develop or use to any matter first disclosed in a Title Commitment Update prior to the expiration of the Property (hereinafter a applicable Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which shall be considered to be “Material Title DefectConditions of Title”), as defined below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (i.e., in connection with the Title Commitment and/or a Title Commitment Update) (each, a “Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days of notice to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to cure any such matters. Notwithstanding anything in this Agreement to the contrary, Seller shall in any event be obligated to cure or cause the Title Company to insure over all of the Material Title Defectfollowing matters or items (collectively, “Monetary Encumbrances”): (i) any mortgage or deed of trust liens or security interests against the Property, in Sellereach case granted by Seller (and not third parties), (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) any matters or items that have been voluntarily placed against the Property by Seller (and not third parties) after the Effective Date and that are not otherwise permitted pursuant to the provisions hereof, and (iv) any title exception that constitutes a mechanic’s sole discretion, elect to cause such Material Title Defect lien of record resulting from work that Seller has performed or caused to be removed or cured prior performed at the Property. Seller shall be entitled to the end of the Due Diligence Period. For Material Title Defects that may be cured with the payment of money, Seller may elect to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove cure any Objections raised in any Buyer’s Notice timely delivered by Buyer to Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to cure a Material Title Defectany such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Closing Date (as it may elect be extended hereunder) any Objection which Seller has previously elected to waive each objection cure pursuant to a Material Title Defect Seller’s Response. In the event of such a termination, the Deposit shall be returned to Buyer, and accept the Material Title Defect neither party shall have any further rights or obligations hereunder except as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof 6.1 and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate Section 9.3 of this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) Buyer’s election to waive the Material Title Defect must be made on or before the expiration of the Due Diligence Period. In the event Buyer fails to make its election after Buyer’s If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title.” If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by delivery of deeds for the Units in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(1) Matters created by or with the written consent of Buyer;
(2) Non-delinquent liens for real estate taxes and assessments;
(3) The Condominium Documents;
(4) All present and future zoning, building, environmental, and other laws, ordinances, codes, restrictions, and regulations of all governmental authorities having jurisdiction with respect to the Property, including, without limitation, landmark designations and all zoning variances and special exceptions, if any; and
(5) Any exceptions disclosed by (a) the Title Defect and the transaction will terminate Commitment, (b) any Title Commitment Update which is approved or deemed approved by Buyer in accordance with this Article 3.0ARTICLE IV above, and (c) and any other exceptions to title disclosed by the public records or which would be disclosed by any inspection and/or survey of the Property; in each case, however, excepting Monetary Encumbrances and the Objections that Seller has elected to cure. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (TILT Holdings Inc.)
Conditions of Title. (a) Buyer Upon execution of this Agreement, Seller shall obtain within seven days after the Contract Date a Commitment for Title Insurance, order an updated preliminary title report or commitment (hereinafter the “CommitmentTitle Report”), issued by ) from the Title Company, covering the Propertywhich shall be delivered to Buyer, together with legible copies of all underlying documents relating to title exceptions referred to therein, promptly upon Seller’s receipt thereof. Seller shall also furnish to Buyer within the Delivery Period any existing survey of record described thereinthe Property in Seller’s possession. Buyer shall immediately order any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, which shall be certified to the Title Company, Buyer and Seller. Buyer shall pay the entire cost of the Survey. If Closing does not occur, Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with the surveyor and in such event Seller shall reimburse Buyer for the cost of the Survey.
(b) In the event the Title Company amends or updates the Title Report after the expiration of the Contingency Period (each, a “Title Report Update”), Buyer shallshall furnish Seller with a written statement of objections, if any, to any matter first raised in a Title Report Update (collectively, “Objections”) within ten two (102) business days after the its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections to any matter first disclosed in a Title Report Update prior to the Commitment, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use expiration of the Property (hereinafter a Title Update Review Period, Buyer shall be deemed to have approved such matters which shall be considered to be “Material Title Defect”)Conditions of Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within two (2) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure those Objections (i) that are mortgage or deed of notice trust liens against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), (ii) that are mechanics’ liens against the Property, but only those mechanics’ liens that arise pursuant to agreements in Seller’s sole discretionwhich Seller (and not tenants or other third parties) is the contracting party, elect to cause such Material Title Defect to be removed or cured prior (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within two (2) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(1) Interests of tenants in possession under the Leases;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments;
(4) Any exceptions disclosed by the Title Defect Report, the survey(s) delivered to Buyer pursuant to Section 4.1(a) above and/or the Survey, and the transaction will terminate Due Diligence Materials;
(5) Any exceptions disclosed by any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above; and
(6) Any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property that were not disclosed in the Title Report or the Title Report Update. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Maguire Properties Inc)
Conditions of Title. (a) As of the date hereof, Buyer hereby approves all title and survey matters disclosed in the (i) updated preliminary title report or commitment (the “Title Report”) from the Title Company delivered to Buyer prior to the date hereof, together with copies of all underlying documents relating to title exceptions referred to therein and (ii) the plat or survey of the Property and any update thereto from a duly licensed surveyor (the “Survey”) as necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall obtain within seven days after provide to Seller a copy of the Contract Date a Commitment for Title InsuranceSurvey, (hereinafter the “Commitment”), issued by which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Propertyentire cost of the Survey. If Closing does not occur, together Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with legible copies the surveyor and in such event Seller shall reimburse Buyer for the cost of all documents of record described thereinthe Survey.
(b) Buyer shall, within ten (10) days In the event the Title Company amends or updates the Title Report after the receipt Effective Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of objections, if any, to the Commitment, give written notice title to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use of the Property (hereinafter collectively, “Objections”) to any matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a “Material Title DefectUpdate Review Period”). Should Buyer fail to notify Seller in writing of any Objections to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, Buyer shall be deemed to have approved such matters which shall be considered to be “Conditions of Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are monetary liens (including, without limitation, mortgage or deed of notice trust liens or security interests against the Property), in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), in Seller’s sole discretion(ii) real estate tax liens, elect to cause such Material Title Defect to be removed other than liens for taxes and assessments not yet delinquent and (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or cured prior other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property in a manner reasonably acceptable to Buyer.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the expiration Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of the Due Diligence Period. In the event Buyer fails to make its election after Buyer’s timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closing, Buyer shall be deemed to have rejected the Material Title Defect and the transaction will terminate in accordance with terminating this Article 3.0Agreement
Appears in 1 contract
Conditions of Title. (a) Buyer shall obtain within seven days after the Contract Date a Commitment for Title Insurance, (hereinafter the “Commitment”), issued by the Title Company, covering the Property, together with legible copies Upon execution of all documents of record described therein.
(b) Buyer shallthis Agreement, within ten (10) days after of the Effective Date Seller shall deliver to Buyer an updated preliminary title report or commitment (the “Title Report”) from the Title Company, which shall be delivered to Seller, together with copies of all underlying documents relating to title exceptions referred to therein, promptly upon Buyer’s receipt thereof. Seller shall furnish to Buyer within the Delivery Period the existing ALTA survey of the Property in Seller’s possession (the “Existing ALTA Survey”). Buyer may, within three (3) business days of receipt of the CommitmentExisting ALTA Survey, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair order a plat or prohibit Buyer’s purchase, financing, develop or use survey of the Property or any update thereto from a duly licensed surveyor (hereinafter the “Survey”) if desired by Buyer. If obtained by Buyer, Buyer shall provide Seller a copy of the Survey, which shall be certified to the Title Company, Buyer and Seller. If timely ordered by Buyer (and Seller receives sufficient evidence of the same from Buyer) and Closing occurs, Seller shall pay the entire cost of the Survey. If Closing does not occur, Buyer or Buyer fails to timely order the Survey, Buyer shall pay the entire cost of the Survey.
(b) Within ten (10) business days prior to the last day of the Contingency Period (the “Title Review Date”), or five (5) business days after Buyer’s receipt of the Title Report and Survey, whichever occurs first, Buyer shall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Material Title DefectReport Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections in the Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which shall be considered to be “Conditions of Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice of trust liens or security interests against the Material Title DefectProperty, in each case granted by Seller (and not Tenant or other third parties of Tenant as may be permitted by the Lease), (ii) real estate tax liens, other than liens for taxes and assessments not yet due and payable after the date of Closing and (iii) that have been voluntarily placed against the Property by Seller (and not Tenant or other third parties of Tenant as may be permitted by the Lease) after the date of this Agreement and that are not otherwise permitted pursuant to the provisions hereof. Seller shall be entitled to apply the Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior to the end of the Due Diligence Period. For Material Title Defects that may be cured with the payment of money, Seller may elect to cause such Material Title Defects to be cured by paying the obligation with proceeds from the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove cure any Objections raised in any Buyer’s Notice timely delivered by Buyer to Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to cure a Material Title Defectany such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Closing Date (as it may elect be extended hereunder) any Objection which Seller has previously elected to waive each objection cure pursuant to a Material Title Defect Seller’s Response. In the event of such a termination, the Deposit shall be returned to Buyer, and accept the Material Title Defect neither party shall have any further rights or obligations hereunder except as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof 6.1, Section 9.3 and without adjustment to the Purchase Price for Section 9.9 below. If no such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) Buyer’s election to waive the Material Title Defect must be made on or before the expiration of the Due Diligence Period. In the event Buyer fails to make its election after Buyer’s termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected elected to take title as it then is and proceed to Closing, thereby waiving all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e).
(e) At the Material Closing, Seller shall convey title to the Property to Buyer by special warranty deed in the form of Exhibit D attached hereto (the “Deed”) subject to no exceptions other than:
(1) Building and zoning ordinances and regulations and any other laws, ordinances or governmental regulations restricting, regulating or relating to the use, occupancy or enjoyment of the Property;
(2) Interests of Tenant in possession under the Lease;
(3) Matters created by or with the written consent of Buyer;
(4) Condition of the Property as revealed by a current inspection;
(5) Matters shown on the Survey;
(6) The lien of real estate taxes and assessments which are not yet due and payable; and
(7) Any exceptions disclosed by the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0ARTICLE IV above, and any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (GK Investment Property Holdings II LLC)
Conditions of Title. (a) Buyer shall obtain within seven days after the Contract Date a Commitment for Title Insurance, has ordered an updated title commitment (hereinafter the “CommitmentTitle Report”), issued by ) from the Title Company, covering the Propertywhich shall be delivered to Seller, together with legible copies of all underlying documents relating to title exceptions referred to therein, promptly upon Buyer’s receipt thereof. Seller has furnished to Buyer the existing survey of record described thereinthe Property. Buyer shall immediately order any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, which shall be certified to the Title Company, Buyer and Seller. Buyer shall pay the entire cost of the Survey. If Closing does not occur, Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with the surveyor, to the extent assignable, and in such event Seller shall reimburse Buyer for the cost of the Survey.
(b) No later than the last day of the Contingency Period (the “Title Review Date”), Buyer shallshall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within ten three (103) business days after the its receipt of the Commitmentsuch Title Report Update (each, give written notice a “Title Update Review Period”). Should Buyer fail to notify Seller specifying in writing of any and each title exception contained Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of the Property (hereinafter a “Material Title Defect”)Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. Seller’s Response shall indicate if Seller intends to cause the Title Company to insure over such Objection, and Buyer shall have the right to object to such method of notice cure in the same manner as Objections to matters raised in a Title Report Update. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), in Seller’s sole discretion(ii) real estate tax liens, elect to cause such Material Title Defect to be removed other than liens for taxes and assessments not yet delinquent, and (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or cured prior other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Title Defect Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the “Deed”) subject to the title matters set forth therein and the transaction will terminate in accordance with this Article 3.0Conditions of Title. The term “Conditions to Title” shall mean:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Industrial Income Trust Inc.)
Conditions of Title. (a) Buyer shall obtain within seven days after the Contract Date a Commitment Seller has ordered updated preliminary title reports or commitments for Title Insuranceeach Property (collectively, (hereinafter the “CommitmentTitle Report”) from Chicago Title Insurance Company (the “Title Company”), issued by the Title Company, covering the Propertywhich shall be made available to Buyer, together with legible copies of all underlying documents relating to title exceptions referred to therein, promptly upon Seller’s receipt thereof. Buyer acknowledges that the Title Company is posting the Title Reports and copies of record described thereintitle documents on its website, to which Buyer shall have access, and which access shall be deemed delivery thereof by Seller. Seller has ordered updated surveys for each Property (collectively, the “Survey”), and Seller shall furnish to Buyer within the Delivery Period all updated surveys in Seller’s possession and any existing surveys of the Property in Seller’s possession to the extent updates have not been received. Buyer shall pay the entire cost of the Survey as detailed in Section 8.5(b) below.
(b) By the end of the Contingency Period (the “Title Review Date”), Buyer shallshall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). Buyer agrees that it shall diligently pursue its review of title and survey for each Building, and that upon completion of review of title and survey of one Building, that it shall provide any objections for said Building, rather than wait until Buyer reviews title and survey for all Buildings before Buyer begins sending its objections to Seller. In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within ten three (103) business days after the its receipt of the Commitmentsuch Title Report Update (each, give written notice a “Title Update Review Period”). Should Buyer fail to notify Seller specifying in writing of any and each title exception contained Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of the Property (hereinafter a “Material Title Defect”)Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice trust liens or security interests or other voluntary liens against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), in (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) claims of mechanic’s or materialmen’s liens under contracts entered into by Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior to the end of the Due Diligence Period. For Material Title Defects that which may be cured with the payment of moneyby Seller bonding over said liens, Seller (iv) judgment liens against Seller, which may elect to cause such Material Title Defects to be cured by paying Title Company insuring Buyer against collection and (v) that have been voluntarily placed against the obligation with Property by Seller (and not tenants of the Property or other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the provisions hereof. Seller shall be entitled to apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deeds in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(i) Interests of tenants in possession under the Leases;
(ii) Matters created by, or with the written consent of, Buyer;
(iii) Non-delinquent liens for real estate taxes and assessments; and
(iv) Any exceptions disclosed by the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above, and any exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing. Notwithstanding anything to the contrary contained herein, if the legal description of any Building attached hereto as Exhibit A does not match the legal description of the Building contained in the vesting deed into Seller (exclusive of any description of appurtenant easements), then Seller reserves the right to attach the vesting deed legal description (exclusive of any description of appurtenant easements) to the Deed in lieu of the Exhibit A legal description. If the legal description of any Building contained on a Survey does match either the legal description attached hereto as Exhibit A or the legal description contained in the vesting deed into Seller, then, in addition to the Deed, Seller agrees to execute a quitclaim deed containing said Exhibit A legal and/or Survey legal, so long as said legal descriptions (1) reasonably cover the same property intended to be conveyed, and (2) do not contain any property being retained by Seller.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Dividend Capital Trust Inc)
Conditions of Title. (a) Buyer Upon execution of this Agreement, Seller shall obtain within seven days after the Contract Date a Commitment for Title Insurance, order an updated preliminary title report or commitment (hereinafter the “CommitmentTitle Report”), issued by ) from the Title Company, covering the Propertywhich shall be delivered to Buyer, together with legible copies of all underlying documents relating to title exceptions referred to therein, promptly upon Seller’s receipt thereof. Seller shall also furnish to Buyer within the Delivery Period any existing survey of record described thereinthe Property in Seller’s possession. Buyer shall immediately order any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, which shall be certified to the Title Company, Buyer and Seller. Buyer shall pay the entire cost of the Survey. If Closing does not occur, Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with the surveyor and in such event Seller shall reimburse Buyer for the cost of the Survey.
(b) On or before the expiration of the Contingency Period (the “Title Review Date”), Buyer shallshall have the right to furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”), in which event this Agreement shall terminate, the Deposit shall be returned to Buyer, and neither party hereto shall have any further rights or obligations hereunder except as otherwise provided in Sections 6.1, 9.3 and 9.9 below. Should Buyer fail to notify Seller in writing of any Objections to the Title Report prior to the Title Review Date, Buyer shall be deemed to have approved such matters, which shall be considered to be “Conditions of Title”; provided, however, that any and all Seller’s Liens (as defined below) shall in no event be deemed to be Conditions of Title, and Seller shall cure or remove all such Seller’s Liens prior to Closing regardless of whether Buyer objects thereto. In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within ten three (103) business days after the its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections to the CommitmentTitle Report prior to the Title Review Date, give written notice or to Seller specifying any matter first disclosed in a Title Report Update prior to the expiration of the applicable Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which shall be considered to be “Conditions of Title”; provided, however, that any and each title exception contained all Seller’s Liens shall in the Commitment which would materially impair no event be deemed to be Conditions of Title and Seller shall cure or prohibit Buyerremove all such Seller’s purchase, financing, develop or use Liens prior to Closing regardless of the Property (hereinafter a “Material Title Defect”)whether Buyer objects thereto.
(c) If Seller receives a timely Objection to anything first disclosed in a Title Report Update in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within two (2) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), in (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the provisions hereof and (iv) mechanics liens arising out of construction contracts entered into by Seller and a contractor (collectively, “Seller’s sole discretion, elect Liens”). Seller shall be entitled to cause such Material Title Defect to be removed or cured prior to the end of the Due Diligence Period. For Material Title Defects that may be cured with the payment of money, Seller may elect to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within one (1) business day after (as applicable (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections (other than with respect to Seller’s Liens) in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(1) Interests of tenants in possession, as tenants only, under the Leases;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments; and
(4) Any exceptions disclosed by the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above, and any other exceptions to title which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Hines Real Estate Investment Trust Inc)
Conditions of Title. (a) Seller has ordered updated preliminary title reports or commitments for each Property (collectively, the “Title Report”) from the Title Agent, which shall be made available to Buyer, together with copies of all underlying documents relating to title exceptions referred to therein the “Exception Documents”, promptly upon Seller’s receipt thereof. Seller shall also furnish to Buyer within the Delivery Period any existing surveys of the Property in Seller’s possession or control. Buyer promptly shall order any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to cause the issuance of the Title Policy (as defined in Section 4.2 below) without a general survey exception. Buyer shall obtain within seven days after provide to Seller and the Contract Date Title Agent a Commitment for Title Insurancecopy of the Survey, (hereinafter the “Commitment”), issued by which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Property, together with legible copies entire cost of all documents of record described thereinthe Survey.
(b) Buyer shall, within Within ten (10) business days after the Buyer’s receipt of the Commitmentlast to be received of Title Report and Survey and legible copies of all Exception Documents (the “Title Review Date”), give Buyer shall furnish Seller with a written notice statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). Buyer agrees that it shall diligently pursue its review of title and survey for each Building, and that upon completion of review of title and survey of one Property, that it shall provide any objections for said Property, rather than wait until Buyer reviews title and survey for all Properties before Buyer begins sending its objections to Seller. In the event the Title Agent amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller specifying with a written statement of Objections to any and each title exception contained matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of Title” as defined in Section 4.1(e) below. The parties acknowledge that the Title Review Date may occur after the expiration of the Property (hereinafter a “Material Title Defect”)Contingency Period.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing or the provisions of notice Section 4.1 (d), Seller shall in any event be obligated to cure all of the Material Title Defectfollowing matters or items (i) mortgage or deed of trust liens or security interests against the Property, in each case granted or assumed by Seller (and not tenants of the Property or other third parties), (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) judgment liens, mechanics liens and any other monetary liens created by, through or under Seller, (iv) any agreements which are entered into by Seller and placed of record during the pendency of this Agreement without Buyer’s sole discretion, elect to cause such Material Title Defect to be removed prior written consent in violation of this Agreement and (v) items that have been voluntarily placed against the Property by Seller (and not tenants of the Property or cured prior other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller may cure Material Title Defect payment or inform Buyer that satisfaction of such Material Title Defect will not be curedliens.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e).
(e) At the Material Closing, Seller shall convey fee simple title to the Property to Buyer by special warranty deeds in the forms attached to Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(i) Interests of Tenants listed on the Rent Roll in possession as tenants only under the Leases;
(ii) Non-delinquent liens for real estate taxes and assessments; and
(iii) Any exceptions disclosed by the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement and in the Deed, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming all of the obligations of Seller disclosed in the Title Report with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cb Richard Ellis Realty Trust)
Conditions of Title. (a) Upon execution of this Agreement, Buyer promptly shall order (i) an updated preliminary title report or commitment (the "Title Report") from First American Title Insurance Company (the "Title Company") and (ii) any plat or survey of the Property or any update thereto from a duly licensed surveyor (the "Survey") if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 3.3 below). Promptly upon Buyer's receipt thereof, Buyer shall obtain within seven days after provide to Seller a copy of (x) the Contract Date a Commitment for Title InsuranceReport, together with copies of all underlying documents relating to title exceptions referred to therein and (hereinafter y) the “Commitment”)Survey, issued by which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Propertyentire cost of the Title Report and the Survey. If Closing does not occur, together Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with legible copies the surveyor and in such event Seller shall reimburse Buyer for the cost of all documents of record described thereinthe Survey.
(b) Buyer shall, within ten On or before the date that is five (105) business days after the receipt of the Commitment, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use of the Property (hereinafter a “Material Title Defect”).
(c) Seller may within 10 days of notice of the Material Title Defect, in Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior to before the end of the Due Diligence Period (the "Title Review Deadline"), Buyer shall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, "Objections"). In the event the Title Company amends or updates the Title Report after the Title Review Deadline (each, a "Title Report Update"), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a "Title Update Review Period"). For Material Should Buyer fail to notify Seller in writing of any Objections in the Title Defects that may Report prior to the Title Review Deadline, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be cured deemed to have approved such matters which shall be considered to be "Conditions of Title" as defined in Section 3.2(e) below.
(c) If Seller receives a timely Objection in accordance with the payment of moneySection 3.2(b) ("Buyer's Notice"), Seller may shall have the right, but not the obligation, within three (3) business days after receipt of Buyer's Notice ("Seller's Response Period"), to elect to cause attempt to cure any such Material Title Defects matter upon written notice to Buyer ("Seller's Response"), and may extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller's Response, Seller shall be cured deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure (i) mortgage or deed of trust liens or security interests against the Property, in each case granted by paying Seller (and not tenants of the obligation with Property or other third parties), (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent and (iii) liens or encumbrances that have been voluntarily placed against the Property by Seller (and not tenants of the Property or other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the provisions hereof. Seller shall be entitled to apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove attempt to cure any Objections raised in any Buyer's Notice timely delivered by Buyer to Seller pursuant to Section 3.2(b), or if Seller notifies Buyer that it elects to attempt to cure a Material Title Defectany such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller's Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller's Response Period if Seller does not deliver a Seller's Response or (iii) Seller's failure to cure by the Closing Date (as it may elect be extended hereunder) any Objection which Seller has previously elected to waive each objection attempt to cure pursuant to a Material Title Defect Seller's Response. In the event of such a termination, the Deposit shall be returned to Buyer, and accept the Material Title Defect neither party shall have any further rights or obligations hereunder, except as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof 3.1(b), Section 9.2 and without adjustment to the Purchase Price for Section 9.9 below. If no such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) Buyer’s election to waive the Material Title Defect must be made on or before the expiration of the Due Diligence Period. In the event Buyer fails to make its election after Buyer’s termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become "Conditions of Title" under Section 3.2(e). If the Material Closing is not consummated for any reason other than Seller's default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the "Deed") subject to no exceptions other than:
(1) Interests of tenants in possession under the Leases;
(2) Matters created by, or with the written consent of, Buyer;
(3) Non-delinquent liens for real estate taxes and assessments; and
(4) Any exceptions disclosed by the Survey, the Title Defect Report and the transaction will terminate any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0III above, and any exceptions to title disclosed by the public records or that would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the "Conditions of Title". Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Strategic Opportunity REIT II, Inc.)
Conditions of Title. (a) Upon execution of this Agreement, Buyer shall obtain within seven days after will order a current preliminary title report or commitment from the Contract Date a Commitment for Title Insurance, Company (hereinafter the “CommitmentTitle Report”), issued together with copies of all underlying documents relating to title exceptions referred to therein. Buyer shall immediately order a survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Propertyentire cost of the Survey. If Closing does not occur, together Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with legible copies the surveyor and in such event Seller shall reimburse Buyer for the cost of all documents of record described thereinthe Survey.
(b) Buyer shall, within ten Within five (105) business days after the later of the Seller Board Approval Date, or Buyer’s receipt of the CommitmentTitle Report and Survey (the “Title Review Date”), give Buyer shall furnish Seller with a written notice statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller specifying with a written statement of Objections to any and each title exception contained matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of the Property (hereinafter a “Material Title Defect”)Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to five (5) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice of trust liens or security interests against the Material Title DefectProperty, in Seller’s sole discretioneach case granted by Seller (and not by other third parties), elect to cause such Material Title Defect to be removed or cured prior (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) that have been voluntarily placed against the Property by Seller (and not by other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of provisions hereof and (iv) liens, such as, but not limited to, mechanic’s liens, but only those liens that arise pursuant to agreements in which Seller or its agents (and not tenants or third parties) is the Due Diligence Periodcontracting party, and which do not exceed Two Hundred Fifty Thousand Dollars ($250,000). For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be immediately returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the “Deed,” which shall be modified in form but not in substance if required by the Title Defect Company) subject to no exceptions other than:
(1) Interests of occupant under the Transition Services Agreement;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments; and
(4) Any exceptions disclosed by the transaction will terminate Title Report and any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above, and any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” By acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Conditions of Title. (a) Prior to the Effective Date, Buyer has ordered an updated preliminary title report or commitment (the “Title Report”) from Chicago Title Insurance Company (the “Title Company”). Promptly upon Buyer’s receipt thereof, Buyer shall obtain provide to Seller a copy of the Title Report, together with copies of all underlying documents relating to title exceptions referred to therein. Seller shall furnish to Buyer within seven days after the Contract Date Delivery Period any existing survey of the Property in Seller’s possession. Buyer shall immediately order any plat or survey of the Property or any update thereto from a Commitment for Title Insurance, duly licensed surveyor (hereinafter the “CommitmentSurvey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, issued by which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Propertyentire cost of the Survey. If Closing does not occur, together Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with legible copies the surveyor and in such event Seller shall reimburse Buyer for the cost of all documents of record described thereinthe Survey.
(b) Buyer shall, within ten (10) days after the receipt of the Commitment, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair On or prohibit Buyer’s purchase, financing, develop or use of the Property (hereinafter a “Material Title Defect”).
(c) Seller may within 10 days of notice of the Material Title Defect, in Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior to the end last day of the Due Diligence Period. For Material Contingency Period (the “Title Defects that may be cured Review Date”), Buyer shall furnish Seller with the payment a written statement of moneyobjections, Seller may elect to cause such Material Title Defects to be cured by paying the obligation with the Purchase Price proceeds at the Closing. Seller may cure Material Title Defect or inform Buyer that such Material Title Defect will not be cured.
(d) If Seller elects not to remove or cure a Material Title Defectif any, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or title to the Property, including, without limitation, any objections to any matter shown on the Survey (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrowcollectively, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate“Objections”).
(e) Buyer’s election to waive the Material Title Defect must be made on or before the expiration of the Due Diligence Period. In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer fails shall furnish Seller with a written statement of Objections to make any matter first raised in a Title Report Update within three (3) business days after its election after Buyer’s timely receipt of Seller’s notice that such Title Report Update (each, a Material “Title Defect will not be cured Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections in the Title Report prior to the Title Review Date, or at to any matter first disclosed in a Title Report Update prior to the ClosingTitle Update Review Period, as applicable, Buyer shall be deemed to have rejected the Material Title Defect and the transaction will terminate approved such matters which shall be considered to be “Conditions of Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with this Article 3.0Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Property or other third parties), (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) that are mechanic’s liens or other monetary liens placed against the Property as a result of Seller’s actions, and (iv) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or other third parties) after the Effective Date and that are not otherwise permitted pursuant to the provisions
Appears in 1 contract
Conditions of Title. (a) Seller has delivered to Buyer shall obtain within seven days after the Contract Date a Commitment for Title Insurance, preliminary title report or commitment (hereinafter the “CommitmentTitle Report”), issued by ) from the Title Company, covering the Property, together with legible copies of all underlying documents relating to title exceptions referred to therein. Seller has previously furnished to Buyer any existing survey of record described thereinthe Property in Seller’s possession. Buyer has ordered a plat or survey of the Property or an update thereto from a duly licensed surveyor (the “Survey”). Buyer shall provide Seller with a copy of the Survey, which shall be certified to the Title Company and Buyer. Buyer shall pay the entire cost of the Survey. If Closing does not occur, and Seller is not in default hereunder, Buyer shall, if Seller so requests, assign, without warranty or recourse, to Seller all contract rights Buyer has with the surveyor and Seller shall reimburse Buyer for the cost of the Survey.
(b) Buyer shall, within ten (10) days after the receipt has heretofore furnished Seller with a written statement of the Commitment, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use of the Property (hereinafter a “Material Title Defect”).
(c) Seller may within 10 days of notice of the Material Title Defect, in Seller’s sole discretion, elect to cause such Material Title Defect to be removed or cured prior objections to the end of the Due Diligence Period. For Material Title Defects that may be cured with the payment of money, Seller may elect to cause such Material Title Defects to be cured by paying the obligation with the Purchase Price proceeds at the Closing. Seller may cure Material Title Defect or inform Buyer that such Material Title Defect will not be cured.
(d) If Seller elects not to remove or cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment title to the Purchase Price for such Material Title Defect or Property, including, without limitation, any objections to any matter shown on the Survey (bcollectively, “Objections”) terminate this Agreement. (as set forth in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(eSchedule 4.1(b) Buyer’s election to waive the Material Title Defect must be made on or before the expiration of the Due Diligence Periodhereof. In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer fails shall furnish Seller with a written statement of Objections to make any matter first raised in a Title Report Update within five (5) business days after its election after Buyer’s timely receipt of Seller’s notice that such Title Report Update (each, a Material “Title Defect will not be cured Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections first disclosed in a Title Report Update prior to or at the ClosingTitle Update Review Period, Buyer shall be deemed to have rejected approved such matters which shall be considered to be “Conditions of Title” as defined in Section 4.1(e) below.
(c) Seller shall have the Material right, but not the obligation, except as provided below in this Section 4.1(c), to elect to cure any such matter by giving written notice to Buyer (“Seller’s Response”), within five (5) business days after the date hereof (“Seller’s Response Period”), and may extend the Closing Date for up to ten (10) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of trust liens or security interests against the Property, in each case granted by Seller or prior owners of the Property (and not tenants of the Property or other third parties), (ii) real estate tax liens, other than liens for taxes and assessments not yet delinquent, (iii) that have been voluntarily placed or permitted against the Property by Seller (and not tenants of the Property or other third parties) after the date of this Agreement and (iv) that are mechanic’s, materialman’s or similar liens (unless resulting from any act or omission of Buyer or any of its agents, contractors, representatives or employees or any tenant of the Property). Seller shall be entitled to apply the Purchase Price towards the payment or satisfaction of such liens, and may cure any Objection by causing the Title Defect Company to insure against collection of the same out of the Property. More specifically, Seller shall be required to obtain Title Company endorsements against liens arising by reason of tenants’ acts or omissions, if the Title Company will issue such endorsements based on Seller’s indemnity without requirement of a monetary deposit. In the event Seller cannot obtain such endorsements by Closing, Buyer may either (x) proceed to Closing without Seller’s failure to obtain such endorsements being a default by Seller under this Agreement or (y) terminate this Agreement, in which event, the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations hereunder, except as provided in Sections 4.1(d), 6.1, 9.3 and 9.9 below.
(d) If (i) Seller elects (or is deemed to have elected) not to cure any Objections raised in any notice timely delivered by Buyer to Seller pursuant to Section 4.1(b), or if (ii) Seller notifies Buyer that it elects to cure any such Objection but then does not for any reason effect such cure on or before the transaction Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (A) its receipt of Seller’s Response stating that Seller will terminate not cure any such Objection or (B) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (C) Seller’s failure to cure by the Closing Date (as it may be extended hereunder) any Objection which Seller has previously elected to cure pursuant to a Seller’s Response. In the event of such a termination, the Deposit shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3 and 9.9 below. In addition, in the event Buyer terminates this Agreement pursuant to the events listed in clause (ii) or as set forth in the last sentence of Section 4.1(c), Buyer shall have the right to recover from Seller all of the reasonable, verifiable, third-party out of pocket costs incurred by Buyer in negotiating and entering into this Agreement and investigating the Property, not to exceed the Recovery Limit in the aggregate. If no such termination notice is timely received by Seller hereunder, Buyer shall be deemed to have waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Closing is not consummated due to Buyer’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit D attached hereto (the “Deed”) subject to no exceptions other than:
(i) Interests of tenants in possession under the Leases;
(ii) Specific matters created by or with the written consent of Buyer;
(iii) Non-delinquent liens for real estate taxes and assessments; and
(iv) Any exceptions disclosed by the Title Report and any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” Subject to the terms and conditions contained elsewhere in this Agreement, by acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees that it shall acquire the Property subject to any obligations of the owner of the Property from and after the Closing set forth in the Conditions of Title, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Dividend Capital Total Realty Trust Inc.)
Conditions of Title. (a) Buyer shall obtain within seven days after the Contract Date a Commitment for Title Insurance, has previously ordered an updated preliminary title report or commitment (hereinafter the “CommitmentTitle Report”) from the Title Company. Seller has furnished to Buyer, or shall furnish to Buyer within five (5) days of the Effective Date, any existing survey of the Property in Seller’s possession. Buyer shall immediately order any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, issued by which shall be certified to the Title Company, covering Buyer and Seller. Buyer shall pay the Propertyentire cost of the Survey. If Closing does not occur, together Buyer shall, if Seller so requests in writing, assign to Seller all contract rights Buyer has with legible copies the surveyor and in such event Seller shall reimburse Buyer for the cost of all documents of record described thereinthe Survey.
(b) Buyer’s failure to deliver a Termination Notice to Seller on or prior to the expiration of the Contingency Period shall be deemed to be Seller’s approval of all matters shown on the Title Report and the Survey, and such matters shall be considered to be Conditions of Title, as defined in Section 4.1(e) below. In the event the Title Company amends or updates the Title Report after December 13, 2011 for a reason other than a new exception arising out of the Survey or any update to the Survey (each, a “Title Report Update”), Buyer shall, shall furnish Seller with a written statement of objections (“Objections”) to any matter first raised in a Title Report Update (a “Buyer’s Notice”) within ten three (103) business days after the its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any objections to any matter first disclosed in a Title Report Update prior to the Commitment, give written notice to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use expiration of the Property (hereinafter a “Material Title Defect”)Update Review Period, as applicable, Buyer shall be deemed to have approved such matters and such matters shall be considered to be Conditions of Title.
(c) If Seller receives a timely objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within five (5) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties)(other than the liens created by the Loan Documents), in Seller’s sole discretion(ii) real estate tax liens, elect to cause such Material Title Defect to be removed other than liens for taxes and assessments not yet delinquent and (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or cured prior other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end of the Due Diligence Periodprovisions hereof. For Material Title Defects that may Seller shall be cured with the payment of money, Seller may elect entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect or inform Buyer that such Material Title Defect will not be curedCompany to insure against collection of the same out of the Property.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within two (2) business day after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3, 9.5 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Title Defect Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey good and marketable fee simple title to the Real Property to Buyer by three Grant Deeds, one for each county in which the Real Property is located, each in the form of Exhibit C attached hereto (the “Deeds”) subject to no exceptions other than:
(1) Interests of tenants in possession under the Leases;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments;
(4) The Loan and the transaction will terminate Loan Documents; and
(5) Any exceptions disclosed by the Title Report, Survey and any Title Report Update which is approved or deemed approved by Buyer in accordance with this Article 3.0IV above, and any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” By acceptance of the Deeds and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations under Section 4.1(e) with respect to title to the Property. The provisions of this Section shall survive the Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ps Business Parks Inc/Ca)
Conditions of Title. (a) Buyer shall obtain within seven Within three (3) business days after the Contract Date execution of this Agreement, Buyer, at Buyer’s sole cost and expense, shall order a Commitment for Title Insurance, title insurance commitment (hereinafter the “CommitmentTitle Report”) from Old Republic Title Insurance Company (the “Title Company”), issued by which shall be delivered to Seller, together with copies of all underlying documents relating to title requirements and exceptions referred to therein, promptly upon Buyer’s receipt thereof. Buyer shall order an updated survey from a surveyor of its choice (the “Survey”). Buyer shall be responsible for the cost of the Survey. The Survey shall be certified to the Title Company, covering Buyer, Buyer’s attorneys and such other persons as Buyer shall indicate in writing, and shall indicate all easements, encroachments, setbacks, conditions, rights of ways, alleys and similar matters, as Buyer may at its sole discretion require, relating to the Property. Any matters constituting defects or unacceptable conditions reflected in the Survey shall be subject to Objections (as such term is defined in Section 4.1(b) below), together with legible copies of all documents of record described thereinwhich Seller shall have the right, but not the obligation, to elect to attempt to cure pursuant to the terms and conditions set forth herein.
(b) Prior to the date hereof, Buyer shall, within ten (10) days after furnished Seller with a written statement of objections to the receipt of the Commitment, give written notice title to Seller specifying any and each title exception contained in the Commitment which would materially impair or prohibit Buyer’s purchase, financing, develop or use of the Property (hereinafter singly, an “Objection” and collectively, “Objections”). Buyer shall be entitled to amend and update its written statement of objections at any time during the Contingency Period and the amended and updated written statement of objections shall govern. The date on which Buyer furnished Seller with such written statement, as amended and updated in accordance with the preceding sentence, is sometimes referred to herein as the “Title Review Date.” In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Material Title DefectReport Update”), Buyer shall furnish Seller with a written statement of Objections to any new matter first raised in a Title Report Update within three (3) business days after its receipt of such Title Report Update (each, a “Title Update Review Period”). Should Buyer fail to notify Seller in writing of any Objections in the Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which shall be considered to be “Conditions of Title” as defined in Section 4.1(e) below.
(c) If Seller may receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within 10 five (5) days after receipt of notice of the Material Title Defect, in Buyer’s Notice (“Seller’s sole discretionResponse Period”), to elect to cause attempt to cure any such Material Title Defect matter upon written notice to Buyer (“Seller’s Response”), and may extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not timely give any Seller’s Response, Seller shall be removed or cured deemed to have elected not to attempt to cure any such matters. Buyer hereby acknowledges receipt of Seller’s Response to the Buyer’s Notice delivered prior to the end date hereof. In the event Buyer elects to amend and update its written statement of objections in accordance with Section 4.1(b), Seller have the right to amend the Seller’s Response within five (5) days after receipt of Buyer’s amended and updated written notice of objections and the amended Seller’s response shall constitute the Seller’s Response. In the event that any new matter of record arises between (i) the earlier of the Due Diligence PeriodTitle Review Date and the effective date of Buyer’s Title Commitment, and (ii) the Closing, and Buyer deems such new matter a title defect (“New Title Matter”), Buyer shall notify Seller in writing of such matter within three (3) business days (“New Title Matter Notice”) after discovery of such matter by Buyer but in any event prior to Closing. For Material Seller shall have the right, but not the obligation, within three (3) business days after receipt of Buyer’s New Title Defects that Matter Notice to elect to attempt to cure any such matter upon written notice to Buyer and may be cured with extend the payment of moneyClosing Date for up to fifteen (15) business days to allow such cure. If Seller does not timely give Seller’s Response, Seller may elect shall be deemed to cause have elected not to attempt to cure any such Material New Title Defects Matter. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage, deed to secure debt or deed of trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Property or other third parties), (ii) that are real estate tax liens for delinquent real estate taxes and intangible property taxes, other than liens for taxes and assessments not yet delinquent, (iii) that have been voluntarily placed against the Property by or at the direction of Seller (and not tenants of the Property or other third parties) after the Effective Date of this Agreement and that are not otherwise permitted pursuant to the provisions of this Agreement, and (iv) that are liens voluntarily created by Seller (and not tenants of the Property or other third parties) with respect to the Property securing a liquidated claim for funds. Seller shall be cured by paying the obligation with entitled to apply the Purchase Price proceeds at towards the Closing. Seller may cure Material Title Defect payment or inform Buyer that satisfaction of such Material Title Defect will not be curedmatters.
(d) If Seller elects (or is deemed to have elected) not to remove attempt to cure any Objections raised in any Buyer’s Notice or cure a Material any matters raised in the New Matter Title Defect, then Notice timely delivered by Buyer may elect to waive each objection Seller pursuant to a Material Title Defect and accept the Material Title Defect as provided in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect Sections 4.1(b) or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded c), or if Seller notifies Buyer that Seller has elected to Buyer immediately upon written request attempt to Escrow, and the parties’ obligation to close the purchase and sale transaction provided cure any such Objection but then does not for in this Agreement shall terminate).
(e) Buyer’s election to waive the Material Title Defect must be made any reason effect such cure on or before the Closing Date as the Closing Date may be extended hereunder, then Buyer, as Buyer’s sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within three (3) business days after (as applicable) (i) Buyer’s receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection or matter raised in the New Title Matter Notice which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3, 9.5 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e) below. If the Material Title Defect Closing is not consummated for any reason other than the default of Seller hereunder, Buyer shall be responsible for any title or escrow cancellation charges. If the Closing is not consummated due to a default of Seller, Seller shall be responsible for any escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by special warranty deed in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(1) Any lien for taxes and water and sewer charges for the then current fiscal tax year or billing period, as the case may be, that are not yet due and payable as of the Closing Date;
(2) Any liens for municipal or governmental betterments and any other municipal or governmental liens that are not due and payable as of the Closing Date;
(3) Interests of tenants in possession under the Leases;
(4) Rights of parties under the Service Contracts which are not required to be terminated at Closing;
(5) Local, state and federal laws, ordinances or governmental regulations, including but not limited to, building, zoning and land use laws, ordinances and regulations now or hereafter in effect relating to the Property, none of which shall be deemed to be reimposed by such instrument; and
(6) All matters of record, and any other exceptions to title which would be disclosed by a survey of the Property. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” By acceptance of the Deed and the transaction will terminate in accordance Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied, subject to the deliverables at the Closing, its obligations with respect to title to the Property. The provisions of this Article 3.0Section shall survive the Closing.
Appears in 1 contract
Conditions of Title. (a) Buyer Upon execution of this Agreement, Seller shall obtain within seven days after the Contract Date a Commitment for Title Insurance, order an updated preliminary title report or commitment (hereinafter the “CommitmentTitle Report”), issued by ) from the Title Company, covering the Propertywhich shall be delivered to Buyer, together with legible copies of all underlying documents relating to title exceptions referred to therein, promptly upon Seller’s receipt thereof. Seller shall also furnish to Buyer within the Delivery Period any existing survey of record described thereinthe Property in Seller’s possession. Buyer shall immediately order any plat or survey of the Property or any update thereto from a duly licensed surveyor (the “Survey”) if desired by Buyer or if necessary to support the issuance of the Title Policy (as defined in Section 4.2 below). Buyer shall provide to Seller a copy of the Survey, which shall be certified to the Title Company, Buyer and Seller. Buyer shall pay the entire cost of the Survey. If Closing does not occur, Buyer shall, if Seller so requests, assign to Seller all contract rights Buyer has with the surveyor and in such event Seller shall reimburse Buyer for the cost of the Survey.
(b) By April 15, 2016 (the “Title Review Date”), Buyer shallshall furnish Seller with a written statement of objections, if any, to the title to the Property, including, without limitation, any objections to any matter shown on the Survey (collectively, “Objections”). In the event the Title Company amends or updates the Title Report after the Title Review Date (each, a “Title Report Update”), Buyer shall furnish Seller with a written statement of Objections to any matter first raised in a Title Report Update within ten three (103) business days after the its receipt of the Commitmentsuch Title Report Update (each, give written notice a “Title Update Review Period”). Should Buyer fail to notify Seller specifying in writing of any and each title exception contained Objections in the Commitment Title Report prior to the Title Review Date, or to any matter first disclosed in a Title Report Update prior to the Title Update Review Period, as applicable, Buyer shall be deemed to have approved such matters which would materially impair or prohibit Buyer’s purchase, financing, develop or use shall be considered to be “Conditions of the Property (hereinafter a “Material Title Defect”)Title” as defined in Section 4.1(e) below.
(c) If Seller receives a timely Objection in accordance with Section 4.1(b) (“Buyer’s Notice”), Seller shall have the right, but not the obligation, within two (2) business days after receipt of Buyer’s Notice (“Seller’s Response Period”), to elect to attempt to cure any such matter upon written notice to Buyer (“Seller’s Response”), and may within 10 extend the Closing Date for up to fifteen (15) business days to allow such cure. If Seller does not give any Seller’s Response, Seller shall be deemed to have elected not to attempt to cure any such matters. Notwithstanding the foregoing, Seller shall in any event be obligated to cure all matters or items (i) that are mortgage or deed of notice trust liens or security interests against the Property, in each case granted by Seller (and not tenants of the Material Title DefectProperty or other third parties), in Seller’s sole discretion(ii) real estate tax liens, elect to cause such Material Title Defect to be removed other than liens for taxes and assessments not yet delinquent, (iii) that have been voluntarily placed against the Property by Seller (and not tenants of the Property or cured prior other third parties) after the date of this Agreement and that are not otherwise permitted pursuant to the end provisions hereof, and (iv) that are monetary liens of the Due Diligence Period. For Material Title Defects that may be an ascertainable amount and are capable of being cured with by the payment of money, money that arise out of construction contracts entered into by Seller. Seller may elect shall be entitled to cause such Material Title Defects to be cured by paying the obligation with apply the Purchase Price proceeds at towards the Closing. Seller payment or satisfaction of such liens, and may cure Material any Objection by causing the Title Defect Company to insure against collection of the same out of the Property. Notwithstanding anything to the contrary contained herein, if (i) a mechanics’ lien or inform liens are filed against the Property by a subcontractor or contractor arising out of work contracted for by tenants, (ii) the amounts of such liens in aggregate exceeds Two Hundred Fifty Thousand Dollars ($250,000), and (iii) Seller elects not to cause the Title Company to insure over such liens for the benefit of Buyer, then Buyer shall have the right by written notice to Seller given within five (5) business days after Buyer’s receipt of Seller’s written notice that Seller is not electing to cause the Title Company to insure over such Material Title Defect will not liens, then Buyer shall have the right to terminate this Agreement, the Deposit shall be curedreturned to Buyer, and neither party shall have any further rights or obligations hereunder except as expressly provided herein.
(d) If Seller elects (or is deemed to have elected) not to remove or attempt to cure a Material Title Defect, then Buyer may elect to waive each objection to a Material Title Defect and accept the Material Title Defect as provided any Objections raised in Section 3.3.5 PERMITTED EXCEPTIONS hereof and without adjustment to the Purchase Price for such Material Title Defect or (b) terminate this Agreement. (in which latter case the Initial Deposit shall be refunded to Buyer immediately upon written request to Escrow, and the parties’ obligation to close the purchase and sale transaction provided for in this Agreement shall terminate).
(e) any Buyer’s election Notice timely delivered by Buyer to waive the Material Title Defect must be made Seller pursuant to Section 4.1(b), or if Seller notifies Buyer that it elects to attempt to cure any such Objection but then does not for any reason effect such cure on or before the Closing Date as it may be extended hereunder, then Buyer, as its sole and exclusive remedy, shall have the option of terminating this Agreement by delivering written notice thereof to Seller within two (2) business days after (as applicable) (i) its receipt of Seller’s Response stating that Seller will not attempt to cure any such Objection or (ii) the expiration of Seller’s Response Period if Seller does not deliver a Seller’s Response or (iii) Seller’s failure to cure by the Due Diligence PeriodClosing Date (as it may be extended hereunder) any Objection which Seller has previously elected to attempt to cure pursuant to a Seller’s Response. In the event Buyer fails of such a termination, the Deposit shall be returned to make its election after Buyer’s , and neither party shall have any further rights or obligations hereunder except as provided in Sections 6.1, 9.3, 9.5 and 9.9 below. If no such termination notice is timely receipt of Seller’s notice that a Material Title Defect will not be cured prior to or at the Closingreceived by Seller hereunder, Buyer shall be deemed to have rejected waived all such Objections in which event those Objections shall become “Conditions of Title” under Section 4.1(e). If the Material Closing is not consummated for any reason other than Seller’s default hereunder, Buyer shall be responsible for any title or escrow cancellation charges.
(e) At the Closing, Seller shall convey title to the Property to Buyer by deed in the form of Exhibit C attached hereto (the “Deed”) subject to no exceptions other than:
(1) Interests of tenants in possession under the Leases;
(2) Matters created by or with the written consent of Buyer;
(3) Non-delinquent liens for real estate taxes and assessments;
(4) Any exceptions disclosed by the Title Defect Report, any Title Report Update, and any Survey, in each case to the transaction will terminate extent approved or deemed approved by Buyer in accordance with this Article 3.0IV above and any other exceptions to title disclosed by the public records or which would be disclosed by an inspection and/or survey of the Property; and
(5) Mechanics’ liens for work contracted for by tenants or other third parties in aggregate amounts less than Two Hundred Fifty Thousand Dollars ($250,000) in total for all such liens. All of the foregoing exceptions shall be referred to collectively as the “Conditions of Title.” By acceptance of the Deed and the Closing of the purchase and sale of the Property, (x) Buyer agrees it is assuming for the benefit of Seller all of the obligations of Seller with respect to the Conditions of Title from and after the Closing, and (y) Buyer agrees that Seller shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing with respect to any covenants conditions and restrictions affecting the Property (“CC&Rs”) Buyer may prepare estoppel certificates with respect thereto (the “CCR Estoppels”). Seller shall deliver the CCR Estoppels to the addressee thereunder, provided that obtaining any CCR Estoppels shall not be a condition to Closing for Buyer, and Seller shall not be obligated to incur any costs or liabilities in connection therewith. Buyer shall determine the correct declarant and address for each such estoppel.
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Sources: Agreement of Purchase and Sale (KBS Strategic Opportunity REIT, Inc.)