Common use of Cure of Title Objections Clause in Contracts

Cure of Title Objections. (a) Each Seller shall be obligated to cure and remove, or cause its respective Company to cure and remove, all of the following classes of Defects (“Mandatory Cure Items”) at or prior to its applicable Closing, if any (other than any Mandatory Cure Items caused by Purchaser): (i) the liens of any assignment of leases and rents, financing statements and any vendor’s lien, any mortgage, trust deed or deed of trust or other financing lien caused by such Seller or its respective Company; (ii) tax liens caused by such Seller or its respective Company; (iii) mechanics and materialmen’s liens caused by such Seller or its respective Company; (iv) broker’s liens caused by such Seller or its respective Company; or (v) judgment liens caused by such Seller or its respective Company. A Seller may elect, in its sole discretion, to cure and remove, or cause its respective Company to cure and remove, any Defect (other than Mandatory Cure Items as to which such Seller shall have no such election) by delivering written notice to Purchaser (“Seller Response Notice”) indicating that such Seller has elected to cure and remove any such matters (any such matters that a Seller elects to cure and remove, or to causes its respective Company to cure and remove, being “Seller Cure Items”). Each Seller Response Notice shall be delivered to Purchaser not later than the sooner to occur of (I) five (5) Business Days after the applicable Seller’s receipt of the applicable Title Notice or (II) the Closing on the sale of such Seller’s Company (each, a “Seller Response Period”). Each Seller shall have until its applicable Closing to cure and remove, or causes its respective Company to cure and remove, any Seller Cure Items and all Mandatory Cure Items, and, a Seller may delay its respective Closing by up to thirty (30) days in order to cure and remove any such Seller Cure Items and Mandatory Cure Items. If a Seller fails to provide a Seller Response Notice within the Seller Response Period set forth above, such Seller shall be deemed to have delivered a Seller Response Notice electing not to cure and remove any Defects identified by Purchaser in the applicable Title Notice. If a Seller elects (or is deemed to have elected) not to cure and remove any Defect, Purchaser may elect, in its sole discretion, by delivery of written notice to the applicable Seller not later than the first to occur of (1) the date that is five (5) Business Days after Purchaser’s receipt of a Seller Response Notice (or the date on which a Seller is deemed to have elected not to cure any Defect), or (2) the applicable Closing, to either (a) proceed to the applicable Closing and accept title to the applicable Membership Interests with title to the applicable Real Property subject to those Defects that the respective Seller has refused to cure, or (b) terminate this Agreement with respect to the Company whose Property is the subject of the uncured Defects, in which event such Company shall be a Terminated Company, and Escrow Agent shall promptly return the Deposit allocated to such Seller’s Company on Schedule 2.5(b) to Purchaser and the provisions of Section 11.19 shall apply with respect to such Terminated Company. If Purchaser fails to timely notify Seller of its election pursuant to the preceding sentence, Purchaser shall be deemed to have elected alternative (a). (b) Whether or not Purchaser shall have furnished to a Seller any Title Notice pursuant to Section 3.2, Purchaser may, on or prior to a Closing Date, obtain updates of the Title Commitment and ALTA Survey (or obtain an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2) applicable to the Property owned by the Company that is the subject to such Closing, and Purchaser may notify the applicable Seller in writing of any objections to title first raised by (i) the Surveyor between the effective date of the ALTA Survey for such Property and such updated ALTA Survey (or raised by the Surveyor in an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2), or (ii) the Title Company between the effective date of the Title Commitment for such Property and such updated Title Commitment; provided, however, that Purchaser may not object to (A) any matters caused by, or requested by, Purchaser or (B) any matters that were previously disclosed on any Existing Survey if Purchaser is obtaining its initial ALTA Survey with regard to such Property. With respect to any objections to title set forth in any such notice, each Seller shall have the same option to cure, or cause its respective Company to cure, and Purchaser shall have the same option to accept title subject to such matters or to terminate this Agreement with respect to the Company whose Property is subject to such new title or survey matters as those which apply to any Title Notice made by Purchaser before the Title Exam Deadline; provided, however, that each Seller shall be required to remove, or causes its Respective Company to remove, all Mandatory Cure Items. If a Seller elects to attempt to cure any such matters, the date for the applicable Closing shall be automatically extended by a reasonable additional time to effect such a cure, but in no event shall the extension exceed thirty (30) days after the date for such Closing set forth in Section 5.1 hereof.

Cure of Title Objections. (a) Each Seller shall be obligated to cure and removeExcept as otherwise provided herein, or cause its respective Company to cure and remove, all of the following classes of Defects (“Mandatory Cure Items”) at or prior to its applicable Closing, if any (other than any Mandatory Cure Items caused by Purchaser): (i) the liens of any assignment of leases and rents, financing statements and any vendor’s lien, any mortgage, trust deed or deed of trust or other financing lien caused by such Seller or its respective Company; (ii) tax liens caused by such Seller or its respective Company; (iii) mechanics and materialmen’s liens caused by such Seller or its respective Company; (iv) broker’s liens caused by such Seller or its respective Company; or (v) judgment liens caused by such Seller or its respective Company. A Seller may elect, in its sole discretion, to cure and remove, or cause its respective Company to cure and remove, any Defect (other than Mandatory Cure Items as to which such Seller shall have no obligation to take any action or proceeding or otherwise to incur any expense to eliminate or modify any Title Objections. However, Seller, at its sole option, may attempt to eliminate, modify or obtain endorsements to the Title Policy acceptable to Purchaser, in Purchaser’s sole discretion, with respect to all or a portion of such electionTitle Objections. In the event Seller is unable or unwilling to eliminate or modify any or all of the Title Objections to the satisfaction (in Purchaser’s sole discretion) of Purchaser, Seller shall provide written notice thereof to Purchaser within three (3) business days of its receipt of Purchaser’s Title Objections (the “Seller’s Notice”). Purchaser may thereafter, no later than two (2) business days after receipt of the Seller’s Notice or no later than two (2) business days after the expiration of the time period during which Seller is entitled to deliver Seller’s Notice, whichever occurs first, (i) elect to close notwithstanding any uncured Title Objections by delivering a written notice to Purchaser Seller and the Escrow Holder (an “Seller Response Objection Waiver Notice”) indicating ), stating that such Seller Purchaser has waived its Title Objections and has elected to cure and remove any such matters (any such matters that a Seller elects to cure and remove, or to causes its respective Company to cure and remove, being “Seller Cure Items”). Each Seller Response Notice shall be delivered to Purchaser not later than proceed with the sooner to occur of (I) five (5) Business Days after the applicable Seller’s receipt of the applicable Title Notice or (II) the Closing on the sale of such Seller’s Company (each, a “Seller Response Period”). Each Seller shall have until its applicable Closing to cure and remove, or causes its respective Company to cure and remove, any Seller Cure Items and all Mandatory Cure Items, and, a Seller may delay its respective Closing by up to thirty (30) days in order to cure and remove any such Seller Cure Items and Mandatory Cure Items. If a Seller fails to provide a Seller Response Notice within the Seller Response Period set forth above, such Seller shall be deemed to have delivered a Seller Response Notice electing not to cure and remove any Defects identified by Purchaser in the applicable Title Notice. If a Seller elects (or is deemed to have elected) not to cure and remove any Defect, Purchaser may electpurchase, in its sole discretion, by delivery of written notice to which case Purchaser shall take the applicable Seller not later than the first to occur of (1) the date that is five (5) Business Days after Purchaser’s receipt of a Seller Response Notice (or the date on which a Seller is deemed to have elected not to cure any Defect), or (2) the applicable Closing, to either (a) proceed to the applicable Closing and accept title to the applicable Membership Interests with title to the applicable Real Property subject to those Defects that the respective Seller has refused to curesuch Title Matters, or (bii) elect (as its sole and exclusive remedy) to terminate this Agreement with respect by delivering notice thereof in writing to the Company whose Property is the subject of the uncured DefectsSeller, in which event such Company shall be a Terminated Company, and Escrow Agent shall promptly return the Deposit allocated to such Seller’s Company on Schedule 2.5(b) to Purchaser and the provisions of Section 11.19 2.4 shall apply apply. In the event that Purchaser fails to deliver a timely Objection Waiver Notice with respect to each such Terminated Company. If Purchaser fails to timely notify Seller of its election pursuant to the preceding sentenceTitle Objection, Purchaser shall be deemed to have elected alternative (a)to proceed to Closing notwithstanding such Title Objections. (b) Whether or not Purchaser shall have furnished to a Seller any Title Notice pursuant to Section 3.2, Purchaser may, on or prior to a Closing Date, obtain updates of the Title Commitment and ALTA Survey (or obtain an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2) applicable to the Property owned by the Company that is the subject to such Closing, and Purchaser may notify the applicable Seller in writing of any objections to title first raised by (i) the Surveyor between the effective date of the ALTA Survey for such Property and such updated ALTA Survey (or raised by the Surveyor in an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2), or (ii) the Title Company between the effective date of the Title Commitment for such Property and such updated Title Commitment; provided, however, that Purchaser may not object to (A) any matters caused by, or requested by, Purchaser or (B) any matters that were previously disclosed on any Existing Survey if Purchaser is obtaining its initial ALTA Survey with regard to such Property. With respect to any objections to title set forth in any such notice, each Seller shall have the same option to cure, or cause its respective Company to cure, and Purchaser shall have the same option to accept title subject to such matters or to terminate this Agreement with respect to the Company whose Property is subject to such new title or survey matters as those which apply to any Title Notice made by Purchaser before the Title Exam Deadline; provided, however, that each Seller shall be required to remove, or causes its Respective Company to remove, all Mandatory Cure Items. If a Seller elects to attempt to cure any such matters, the date for the applicable Closing shall be automatically extended by a reasonable additional time to effect such a cure, but in no event shall the extension exceed thirty (30) days after the date for such Closing set forth in Section 5.1 hereof.

Cure of Title Objections. If Purchaser has timely given a Notice of Title Objections as set forth above, Seller will have the right, but not the obligation (aunless otherwise expressly set forth below in this subsection), at any time on or prior to the Closing Date, to cure any such objections. If Seller timely cures such objections, or, if such objections are such that the same cannot be cured on or prior to Closing, and Seller has commenced curing such objections and thereafter diligently proceeds to effect such cure (but in no event beyond forty-five (45) Each days unless agreed to by Purchaser), then this Agreement shall continue in force and effect, and the Closing Date shall be adjourned accordingly. If Seller is unable to, or chooses not to, cure such objections within the time permitted, this Agreement shall terminate, Seller shall be obligated instruct the Escrow Agent to return the Deposit to Purchaser, and neither party shall have any further obligations hereunder except for the Surviving Obligations. Notwithstanding the foregoing, however, Purchaser may waive such objections that Seller is unable to or chooses not to cure, and upon receipt by Seller of such waiver in full from Purchaser within ten (10) days of notice from Seller that it is unable or chooses not to cure such objections, this Agreement shall remain in full force and effect with no reduction in the Purchase Price. Notwithstanding anything set forth in this Agreement to the contrary, whether or not Purchaser objects to the same, Seller shall have an obligation (i) to pay (at or prior to Closing) any amount due in order to satisfy or remove from record title by bonding off or otherwise any mortgages, deeds of trust and liens or encumbrances that secure the payment of money (the “Monetary Liens”), and Seller may authorize Escrow Agent to deduct from the Purchase Price at Closing the amount necessary to pay off or discharge any Monetary Liens, and (ii) to cure and removeremove from record title (at or prior to Closing) all liens and other title exceptions created or filed against the Property after the date of this Agreement (any such liens and other title exceptions, or cause its respective Company to cure and removetogether with the Monetary Liens, all of the following classes of Defects (“Mandatory Cure Items”) at or prior to its applicable Closing). Any easements, if any (other than any Mandatory Cure Items caused by Purchaser): (i) the liens covenants, restrictions, exceptions of any assignment of leases and rents, financing statements and any vendor’s lien, any mortgage, trust deed or deed of trust or other financing lien caused by such Seller or its respective Company; (ii) tax liens caused by such Seller or its respective Company; (iii) mechanics and materialmen’s liens caused by such Seller or its respective Company; (iv) broker’s liens caused by such Seller or its respective Company; or (v) judgment liens caused by such Seller or its respective Company. A Seller may elect, in its sole discretion, to cure and remove, or cause its respective Company to cure and remove, any Defect record (other than Mandatory Cure Items as Items) that are shown on the Commitment to which such Seller shall have no such election) by delivering written notice to Purchaser (“Seller Response Notice”) indicating that such Seller has elected to cure and remove any such matters (any such matters that a Seller elects to cure and remove, or to causes its respective Company to cure and remove, being “Seller Cure Items”). Each Seller Response Notice shall be delivered to Purchaser not later than the sooner to occur of (I) five (5) Business Days after the applicable Seller’s receipt of the applicable Title Notice or (II) the Closing on the sale of such Seller’s Company (each, a “Seller Response Period”). Each Seller shall have until its applicable Closing to cure and remove, or causes its respective Company to cure and remove, any Seller Cure Items and all Mandatory Cure Items, and, a Seller may delay its respective Closing by up to thirty (30) days in order to cure and remove any such Seller Cure Items and Mandatory Cure Items. If a Seller fails to provide a Seller Response Notice within the Seller Response Period objected as set forth above, such Seller shall be deemed to have delivered a Seller Response Notice electing not to cure and remove any Defects identified by Purchaser in the applicable Title Notice. If a Seller elects (or is deemed to have elected) not to cure and remove any Defect, Purchaser may elect, in its sole discretion, by delivery of written notice to the applicable Seller not later than the first to occur of (1) the date that is five (5) Business Days after Purchaser’s receipt of a Seller Response Notice (or the date on which a Seller is deemed to have elected not to cure any Defect), or (2) the applicable Closing, to either together with (a) proceed to the applicable Closing any and accept title to the applicable Membership Interests with title to the applicable Real Property subject to those Defects that the respective Seller has refused to cureall present and future zoning laws, ordinances, resolutions and regulations of any municipal, county state or federal governments, or agency thereof, now or hereafter having or acquiring jurisdiction over the Property and the use and improvement thereof, (b) terminate any state of facts that a current and accurate survey may show, (c) any lien for real estate taxes, water charges, sewer rents and assessments not yet due and payable, (d) variations between tax map and lines of record title, (e) any and all easements, servitudes, covenants, restrictions, agreements or other instruments recorded in the public records of El Paso County, Colorado as of the effective date hereof, (f) any and all rights or easements, if any, of any governmental unit or any public or private utility company, to maintain telephone wires, pipes, cable, conduits or other facilities that enter or cross the Property, (g) any other lien or encumbrance consented to by Purchaser or that are deemed to Permitted Exceptions under this Agreement with respect are hereinafter collectively referred to the Company whose Property is the subject of the uncured Defects, in which event such Company shall be a Terminated Company, and Escrow Agent shall promptly return the Deposit allocated to such Seller’s Company on Schedule 2.5(b) to Purchaser and the provisions of Section 11.19 shall apply with respect to such Terminated Company. as “Permitted Exceptions.” If Purchaser fails to timely notify Seller of its election pursuant to does not deliver the preceding sentenceTermination Notice, Purchaser shall be deemed to have elected alternative (a)approved the Permitted Exceptions. (b) Whether or not Purchaser shall have furnished to a Seller any Title Notice pursuant to Section 3.2, Purchaser may, on or prior to a Closing Date, obtain updates of the Title Commitment and ALTA Survey (or obtain an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2) applicable to the Property owned by the Company that is the subject to such Closing, and Purchaser may notify the applicable Seller in writing of any objections to title first raised by (i) the Surveyor between the effective date of the ALTA Survey for such Property and such updated ALTA Survey (or raised by the Surveyor in an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2), or (ii) the Title Company between the effective date of the Title Commitment for such Property and such updated Title Commitment; provided, however, that Purchaser may not object to (A) any matters caused by, or requested by, Purchaser or (B) any matters that were previously disclosed on any Existing Survey if Purchaser is obtaining its initial ALTA Survey with regard to such Property. With respect to any objections to title set forth in any such notice, each Seller shall have the same option to cure, or cause its respective Company to cure, and Purchaser shall have the same option to accept title subject to such matters or to terminate this Agreement with respect to the Company whose Property is subject to such new title or survey matters as those which apply to any Title Notice made by Purchaser before the Title Exam Deadline; provided, however, that each Seller shall be required to remove, or causes its Respective Company to remove, all Mandatory Cure Items. If a Seller elects to attempt to cure any such matters, the date for the applicable Closing shall be automatically extended by a reasonable additional time to effect such a cure, but in no event shall the extension exceed thirty (30) days after the date for such Closing set forth in Section 5.1 hereof.

Cure of Title Objections. (a) Each Seller shall be obligated notify Purchaser of whether it intends to cure and remove, any or cause its respective Company all of Purchaser’s Title Objections within two (2) Business Days of receipt of a Title Objection Notice. If Seller fails to notify Purchaser of whether or not it intends to cure and remove, any or all of the following classes of Defects Purchaser’s Title Objections within such two (“Mandatory Cure Items”) at or prior to its applicable Closing, if any (other than any Mandatory Cure Items caused by Purchaser): (i) the liens of any assignment of leases and rents, financing statements and any vendor’s lien, any mortgage, trust deed or deed of trust or other financing lien caused by such Seller or its respective Company; (ii) tax liens caused by such Seller or its respective Company; (iii) mechanics and materialmen’s liens caused by such Seller or its respective Company; (iv) broker’s liens caused by such Seller or its respective Company; or (v) judgment liens caused by such Seller or its respective Company. A Seller may elect, in its sole discretion, to cure and remove, or cause its respective Company to cure and remove, any Defect (other than Mandatory Cure Items as to which such Seller shall have no such election) by delivering written notice to Purchaser (“Seller Response Notice”) indicating that such Seller has elected to cure and remove any such matters (any such matters that a Seller elects to cure and remove, or to causes its respective Company to cure and remove, being “Seller Cure Items”). Each Seller Response Notice shall be delivered to Purchaser not later than the sooner to occur of (I) five (52) Business Days after the applicable Seller’s receipt of the applicable Title Notice or (II) the Closing on the sale of such Seller’s Company (eachDay period, a “Seller Response Period”). Each Seller shall have until its applicable Closing to cure and remove, or causes its respective Company to cure and remove, any Seller Cure Items and all Mandatory Cure Items, and, a Seller may delay its respective Closing by up to thirty (30) days in order to cure and remove any such Seller Cure Items and Mandatory Cure Items. If a Seller fails to provide a Seller Response Notice within the Seller Response Period set forth above, such Seller shall be deemed to have delivered a notified Purchaser that it will not cure any of Purchaser’s Title Objections. If Seller Response Notice electing not confirms in writing that it will cure some or all of Purchaser’s Title Objections, Seller is allowed until the Closing Date to cure and remove any Defects identified by Purchaser in the applicable Purchaser’s Title NoticeObjections. If a Seller elects (agrees to cure any of Purchaser’s Title Objections, has used commercially reasonable efforts pursing such cure, and such cure is not completed prior to the Closing Date, Seller shall not be in default of this Agreement, provided, however, that Purchaser may terminate the Agreement on the Closing Date by providing written notice to Seller and the E▇▇▇▇▇▇ Money shall be returned to Purchaser and neither party shall have any liability to the other except for the Surviving Obligations. If Seller fails to use commercially reasonable efforts to cure any objection which Seller has agreed to cure, Seller shall be in default under this Agreement. If Seller notifies Purchaser that it does not intend to cure all of Purchaser’s Title Objections or is deemed to have elected) elected not to cure and remove any DefectPurchaser’s Title Objections, Purchaser may elect, in its sole discretionthen, by delivery of providing written notice to the applicable Seller not later than the first to occur of Purchaser’s election within two (1) the date that is five (52) Business Days after Purchaser’s receipt of a Seller’s notice or deemed notice, or on the Closing Date with respect to any matter which Seller Response Notice (or the date on which a Seller is deemed to have elected not agrees to cure any Defect)but remains uncured on Closing Date, or (2) Purchaser may elect to do one of the applicable Closing, to either following: (a) proceed Terminate this Agreement and receive a refund of the E▇▇▇▇▇▇ Money in which case neither party shall have any further liability to the applicable Closing and accept title to the applicable Membership Interests with title to the applicable Real Property subject to those Defects that the respective Seller has refused to cure, or other except for Surviving Obligations; or (b) Waive one or more of the uncured Purchaser’s Title Objections and proceed to Closing. If Purchaser does not timely give notice of its election to terminate this Agreement with respect under Subsection 3.2.4(a) or to the Company whose Property is the subject of the uncured Defects, in which event such Company shall be a Terminated Company, and Escrow Agent shall promptly return the Deposit allocated proceed to such Seller’s Company on Schedule 2.5(bClosing under Subsection 3.2.4(b) to Purchaser and the provisions of Section 11.19 shall apply with respect to such Terminated Company. If Purchaser fails to timely notify Seller of its election pursuant to the preceding sentenceas provided herein, Purchaser shall be deemed to have elected alternative (ato waive Purchaser’s Title Objections and proceed to Closing under Subsection 3.2.4(b). (b) Whether or not Purchaser shall have furnished to a Seller any Title Notice pursuant to Section 3.2, Purchaser may, on or prior to a Closing Date, obtain updates of the Title Commitment and ALTA Survey (or obtain an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2) applicable to the Property owned by the Company that is the subject to such Closing, and Purchaser may notify the applicable Seller in writing of any objections to title first raised by (i) the Surveyor between the effective date of the ALTA Survey for such Property and such updated ALTA Survey (or raised by the Surveyor in an initial ALTA Survey if Purchaser has delayed obtaining an ALTA Survey as set forth in Section 3.2), or (ii) the Title Company between the effective date of the Title Commitment for such Property and such updated Title Commitment; provided, however, that Purchaser may not object to (A) any matters caused by, or requested by, Purchaser or (B) any matters that were previously disclosed on any Existing Survey if Purchaser is obtaining its initial ALTA Survey with regard to such Property. With respect to any objections to title set forth in any such notice, each Seller shall have the same option to cure, or cause its respective Company to cure, and Purchaser shall have the same option to accept title subject to such matters or to terminate this Agreement with respect to the Company whose Property is subject to such new title or survey matters as those which apply to any Title Notice made by Purchaser before the Title Exam Deadline; provided, however, that each Seller shall be required to remove, or causes its Respective Company to remove, all Mandatory Cure Items. If a Seller elects to attempt to cure any such matters, the date for the applicable Closing shall be automatically extended by a reasonable additional time to effect such a cure, but in no event shall the extension exceed thirty (30) days after the date for such Closing set forth in Section 5.1 hereof.