Common use of Survey and Title Commitment Clause in Contracts

Survey and Title Commitment. (a) Within five (5) days after the Effective Date, the Majority Seller shall provide to Buyer a full-size copy of the most recent survey of the Property in the Majority Seller's possession (the "Survey"). If Buyer desires to obtain an update, revision or recertification of the Survey, it may do so at its sole cost and expense, but in no event will a revised Survey be deemed to be or constitute a condition precedent to Buyer's performance hereunder. Buyer shall be under no obligation to rely upon or utilize the Survey and shall be free to secure another survey from a surveyor of its choice at its sole cost and expense. (b) Within fifteen (15) days after the execution and delivery of this Agreement by all of the parties hereto, the Majority Seller shall cause TitleServ-NY, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Title Company") to furnish to Buyer (a) a title commitment ("Commitment"), by the terms of which ▇▇▇▇▇▇▇ Title and Guaranty Co., Chicago Title Insurance Company or First American Title Insurance Company to issue to Buyer at Closing an owner's policy of title insurance ("Title Policy") in the amount of the Purchase Price on the ALTA Owner Policy of Title Insurance, insuring Buyer's fee simple title to the Property to be good and marketable, subject to the terms of such policy and the exceptions described therein and (b) a photocopy of all documents ("Title Documents") describing all title exceptions shown on the Commitment. (c) For a period of ten (10) days after receipt by Buyer of each of the Survey and the Commitment and Title Documents (the "Title Objection Period"), Buyer shall have the right to review each such delivered document. All matters shown on the Survey and exceptions listed in the Commitment which are not objected to by Buyer by delivery of written notice to the Majority Seller within the Title Objection Period shall be conclusively deemed to be acceptable to Buyer. In the event Buyer timely objects to any title exception or Survey matter ("Title Objection(s)"), the Majority Seller may, but shall not be obligated to, cure such Title Objection. In the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to cure any Title Objection, Buyer shall be deemed to have waived the Title Objections unless within five (5) days following such notice, Buyer delivers to Majority Seller written notice of its exercise of its right to terminate this Agreement. In the event that Buyer discovers any Lien on the Property or other matter relating to title to the Property that was not disclosed on the Commitment that renders title to the Property unmarketable or is otherwise unacceptable to Buyer, Buyer shall notify the Majority Seller promptly, and the Majority Seller may, but shall not be obligated to have the Lien released or other matters corrected to Buyer's reasonable satisfaction. In the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to effect such release or correction prior to the Closing, Buyer shall have the right, prior to the Closing, to terminate this Agreement in accordance with Section 9.6 hereof, after which Buyer will be deemed to have waived such right.

Survey and Title Commitment. (a) Within five three (53) days after the Effective Date, the Majority Seller shall provide to Buyer a full-size copy of the most recent survey of the Property in the Majority Seller's possession (the "Survey"). If Buyer desires to obtain an update, revision or recertification of the Survey, it may do so at its Seller’s sole cost and expense, but in no event will a revised Survey be deemed shall furnish to be or constitute a condition precedent to Buyer's performance hereunder. Buyer shall be under no obligation to rely upon or utilize the Survey Purchaser and shall be free to secure another survey from a surveyor Republic Title of its choice at its sole cost and expense. (b) Within fifteen (15) days after the execution and delivery of this Agreement by all of the parties heretoTexas, the Majority Seller shall cause TitleServ-NYInc., ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Dallas, Texas 75204, Attention: ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (the "Title Company") to furnish to Buyer (a) a title commitment ("Commitment"), by the terms of which Phone: ▇▇▇-▇▇▇-▇▇▇▇▇▇▇ ) (the “Title Company”), Seller’s existing survey (the “Survey”) of the Land. (b) Within three (3) days after the Effective Date, Seller, at Seller’s sole cost and Guaranty Co.expense, Chicago shall cause the Title Company to furnish to Purchaser a Commitment for an Owner’s Policy of Title Insurance Company or (the “Commitment”) issued by First American Title Insurance Company to issue to Buyer at Closing Purchaser, which shall (A) be on the standard printed form prescribed by the Texas State Board of Insurance for the issuance of an owner's policy Owner’s Policy of title insurance Title Insurance ("the “Title Policy"”), (B) be in the amount of the Purchase Price on Price, (C) set forth all exceptions or objections to the ALTA Owner Policy of Title Insurance, insuring Buyer's fee simple title to the Property that will appear in the Title Policy to be good issued to Purchaser at the Closing, and marketable, subject (D) be accompanied by legible certified or recordation copies of any instruments of record creating such exceptions or objections to the terms of title to such policy and Property (the exceptions described therein and (b) a photocopy of all documents ("Title “Exception Documents") describing all title exceptions shown on the Commitment”). (c) During the Inspection Period, Purchaser shall have the right, at its sole cost and expense, to obtain an updated survey of the Land and Improvements (any such survey, the “Updated Survey”). For a period of ten (10) days after receipt by Buyer of each following the date on which Purchaser has received the last of the Updated Survey and the Commitment and (collectively, the “Title Documents (the "Title Objection Period"Documents”), Buyer but in any event no later than the date which is five (5) days prior to the expiration of the Inspection Period (such period being referred to as the “Title Examination Period”), Purchaser shall have the right to review each examine the same. If after such delivered document. All matters shown on examination, Purchaser determines that the Survey and exceptions listed in title to or condition of the Commitment which are not objected to Property as reflected by Buyer by delivery any of written notice to the Majority Seller within the Title Documents is unacceptable to Purchaser, Purchaser shall notify Seller in writing of Purchaser’s objections thereto (the “Objection Period shall be conclusively deemed to be acceptable to BuyerNotice”). In If Purchaser so notifies Seller before the event Buyer timely objects to any title exception or Survey matter ("expiration of the Title Objection(s)")Examination Period, the Majority Seller may, but shall not be obligated to, cure undertake to eliminate or modify such Title Objectionunacceptable matters to the reasonable satisfaction of Purchaser. In the event the Majority Seller notifies Buyer that the Sellers are is unable or unwilling to cure any Title Objectioneffectuate the elimination or modification of such matters, Buyer Seller shall be deemed to have waived notify Purchaser in writing of same (the Title Objections unless “No-Cure Notice”) within five (5) days following such noticeafter receipt of the Objection Notice, Buyer delivers to Majority Seller whereupon Purchaser may, within five (5) days after receipt of the No-Cure Notice, by written notice to Seller, terminate this Contract, in which event the ▇▇▇▇▇▇▇ Money Deposit and any other funds deposited by Purchaser under this Contract shall be returned to Purchaser and thereafter neither Seller nor Purchaser shall have any further duties or obligations hereunder. Purchaser shall be conclusively deemed to have accepted such title as Seller can deliver pursuant to the Survey and the Commitment if Purchaser fails to object to same prior to the end of its exercise the Title Examination Period or if Purchaser fails to terminate this Contract within five (5) days after receipt of its the No-Cure Notice. All matters approved or deemed approved by Purchaser pursuant to this Section 4 shall hereinafter be referred to as the “Permitted Exceptions”. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, PURCHASER’S RIGHT TO TERMINATE THIS CONTRACT PURSUANT TO THIS SECTION 4(c) SHALL EXPRESSLY TERMINATE UPON THE EXPIRATION OF THE INSPECTION PERIOD, WHEREUPON PURCHASER’S APPROVAL OF THE COMMITMENT AND THE SURVEY SHALL BECOME ABSOLUTE AND ALL ITEMS REFERENCED THEREIN SHALL BE CONSIDERED “PERMITTED EXCEPTIONS”. Notwithstanding the foregoing, Seller shall be obligated to cure all monetary liens created by, through or under Seller or any agent, representative or affiliate of Seller, and to further cause the following items to be deleted from the Title Policy (by bonding or other method satisfactory to Purchaser; provided that if Purchaser is not satisfied with such bonding or other method, Purchaser shall have the right to terminate the Contract and receive a refund of the ▇▇▇▇▇▇▇ Money Deposit and any other funds deposited by Purchaser under this Agreement. In the event that Buyer discovers Contract): (i) any Lien on mortgage, deed to secure debt, deed of trust, security interest or similar security instrument entered into by Seller encumbering all or any part of the Property (the “Mortgages”), (x) any mechanic’s, materialman’s or similar lien arising by, through or under Seller or any agent, representative or affiliate of Seller (unless resulting from any act or omission of Purchaser or any of its agents, contractors, representatives or employees), (y) the lien of ad valorem real or personal property taxes, assessments and governmental charges affecting all or any portion of the Property which are delinquent, and (z) any judgment of record for the payment of money against Seller in a county or other matter relating to title to applicable jurisdiction in which any of the Property that was not disclosed on the Commitment that renders title to the Property unmarketable is located, any liens arising by, through or is otherwise unacceptable to Buyerunder Seller or any agent, Buyer shall notify the Majority representative or affiliate of Seller promptly, of a definite and the Majority Seller may, but shall not be obligated to have the Lien released or ascertainable amount and other matters corrected to Buyer's reasonable satisfaction. In arising by, through or under Seller or any agent, representative or affiliate of Seller which may be cured by the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to effect such release or correction prior to the Closing, Buyer shall have the right, prior to the Closing, to terminate this Agreement in accordance with Section 9.6 hereof, after which Buyer will be deemed to have waived such rightpayment of a fixed amount.

Survey and Title Commitment. (a) Within five (5) days after At the Effective DateClosing, the Majority Seller shall provide Purchasers will purchase and accept from the Escrow Agent, and the Escrow Agent will issue to Buyer a full-size copy the Purchasers, or be irrevocably committed in writing (the “Title Commitment”) to issue to the Purchasers, on the then standard CLTA owner’s form, an owner’s policy of title insurance (together with all applicable reinsurance and coinsurance agreements, the most recent survey of the Property “Title Policy”) in the Majority Seller's possession (amount of $28,600,000.00 and insuring that fee simple title to the "Survey"). If Buyer desires Owned Real Property is vested in the Purchasers subject to obtain an update, revision or recertification of the Survey, it may do so at its sole cost and expense, but in no event will a revised Survey be deemed to be or constitute a condition precedent to Buyer's performance hereunder. Buyer shall be under no obligation to rely upon or utilize the Survey and shall be free to secure another survey from a surveyor of its choice at its sole cost and expensePermitted Exceptions. (b) Within fifteen The Sellers shall procure, at their sole expense, the preliminary title report in respect of the Purchased Real Property (15the “Preliminary Title Report”) days no later than April 10, 2007. On or prior to the date (the “Title Objection Date”) that is no later than two Business Days after the execution and delivery of this Agreement receipt by all the Purchasers of the parties heretoPreliminary Title Report, the Majority Purchasers will notify the Seller shall cause TitleServ-NY, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ in writing of any matters appearing on the Preliminary Title Report that are objectionable to the Purchasers (the "“Title Company") Objections”). If the Purchasers do not so notify the Seller of their Title Objections on or before 5:00 p.m. Eastern Time on the Title Objection Date, the Purchasers shall be deemed to furnish to Buyer (a) a title commitment ("Commitment"), by the terms of which ▇▇▇▇▇▇▇ Title and Guaranty Co., Chicago Title Insurance Company or First American Title Insurance Company to issue to Buyer at Closing an owner's policy of title insurance ("Title Policy") have accepted all matters referenced in the amount of the Purchase Price on the ALTA Owner Policy of Preliminary Title Insurance, insuring Buyer's fee simple title to the Property to be good and marketable, subject to the terms of such policy and the exceptions described therein and (b) a photocopy of all documents ("Title Documents") describing all title exceptions shown on the CommitmentReport. (c) For If the Seller receives any Title Objection (any matter that is the subject or basis of any Title Objection being hereinafter referred to as a period of ten “Title Defect”), the Seller may elect (10but will not be obligated, except as hereinafter expressly provided) days by written notice to the Purchasers to attempt to remove, or cause to be removed at its expense, any such Title Defect and will give the Purchasers such notice within five Business Days after receipt by Buyer of each such Title Objection, of the Survey Seller’s intention to cure such Title Defect. If (i) the Seller elects not to attempt to cure any Title Defect or (ii) the Seller is unable to cure any Title Defect for any period elected by the Seller, the Seller will so advise the Purchasers and the Commitment and Title Documents (the "Title Objection Period"), Buyer shall Purchasers will have the right to review each terminate this Agreement or to waive such delivered document. All matters shown on the Survey Title Defect and exceptions listed in the Commitment which are not objected to by Buyer by delivery of written notice proceed to the Majority Seller Closing. The Purchasers will make such election within two Business Days after receipt of the Seller’s notice. If the Purchasers elect to proceed to the Closing, any Title Objection Period shall Defects waived by the Purchasers will be conclusively deemed to be acceptable Permitted Exceptions. Failure to Buyer. In the event Buyer timely objects to any title exception or Survey matter ("Title Objection(s)"), the Majority Seller may, but shall not be obligated to, cure such Title Objection. In the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to cure any Title Objection, Buyer shall be deemed to have waived the Title Objections unless within five (5) days following such notice, Buyer delivers to Majority Seller provide written notice of its exercise the Purchasers’ election to waive the Title Defect or terminate this Agreement within the time constraints set forth herein will constitute a waiver of its the Purchasers’ right to terminate this Agreement. In the event that Buyer discovers any Lien Agreement based on the Property or other matter relating Title Defect. Notwithstanding the foregoing, the Seller will be obligated to cure exceptions to title to the Owned Real Property that was not disclosed on the Commitment that renders title relating to (i) liens and security interests securing any financings to the Seller, (ii) any mechanic’s liens resulting from work at the Owned Real Property unmarketable or is otherwise unacceptable to Buyer, Buyer shall notify commissioned by the Majority Seller promptly, and Seller; or (iii) any other exception or encumbrance caused by the Majority Seller may, but Seller’s act or omission within the Seller’s control which shall not be obligated a Permitted Lien; provided, however, that as an alternative to have curing any exception or encumbrance relating to delinquent Real Property Taxes or mechanic’s liens, the Lien released or other matters corrected Seller may cause the same to Buyer's reasonable satisfaction. In the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to effect such release or correction prior to the Closing, Buyer shall have the right, prior to the Closing, to terminate this Agreement in accordance with Section 9.6 hereof, after which Buyer will be deemed to have waived such rightInsured Over.

Survey and Title Commitment. (a) Within Not less than five (5) days after prior to the Effective Closing Date (as defined in (P)R-5 hereinafter), Partnership shall obtain an updated version of the Title Commitment previously issued to Partnership, dated no earlier than thirty (30) days prior to the Closing Date, in the Majority Seller shall provide to Buyer a full-size copy amount of the most recent Contribution Price, containing no exceptions to title other than exceptions which are set forth on Schedule 1 attached hereto and made a part hereof. The Partnership shall also obtain, not less than five (5) days prior to the Closing Date, a survey updated to a date no earlier than thirty (30) days prior to the Closing Date (or obtain from Contributors an affidavit of no change if there have been no changes since the date of the Property in the Majority Seller's possession (the "Survey"Survey delivered to Partnership). If Buyer desires to obtain an update, revision or recertification The Partnership shall pay for the cost of the Survey, it may do so title commitment and survey at its sole cost and expense, but in no event will a revised Survey be deemed to be or constitute a condition precedent to Buyer's performance hereunder. Buyer shall be under no obligation to rely upon or utilize the Survey and shall be free to secure another survey from a surveyor of its choice at its sole cost and expenseClosing. (b) Within fifteen If the Title Commitment discloses claims, liens, exceptions, conditions or other items (15a "Defect") with respect to a specific parcel of the Real Property (the "Affected Parcel") which are not Permitted Exceptions and which are unacceptable to the Company as inconsistent with the intended use of the Affected Parcel after Closing, the Company shall give the Contributor of the Affected Parcel (the "Affected Contributor") written notice thereof within ten days after receipt of such title commitment. Following the giving of such notice, the removal, cure or insuring over of such a Defect shall be a condition precedent to the Company's obligation to accept a contribution of the Affected Parcel. If the Affected Contributors fail to remove, cure or cause the Title Insurer to insure over the Defect in a manner reasonably satisfactory to the Company within twenty (20) days after the execution and delivery of this Agreement by all the Company's notice of the parties hereto, the Majority Seller shall cause TitleServ-NY, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Title Company") to furnish to Buyer (a) a title commitment ("Commitment"), by the terms of which ▇▇▇▇▇▇▇ Title and Guaranty Co., Chicago Title Insurance Company or First American Title Insurance Company to issue to Buyer at Closing an owner's policy of title insurance ("Title Policy") in the amount of the Purchase Price on the ALTA Owner Policy of Title Insurance, insuring Buyer's fee simple title Defect to the Property to be good and marketableAffected Contributor, subject to then the terms of such policy and the exceptions described therein and (b) a photocopy of all documents ("Title Documents") describing all title exceptions shown on the Commitment. (c) For a period of ten (10) days after receipt by Buyer of each of the Survey and the Commitment and Title Documents (the "Title Objection Period")Company shall, Buyer shall have the right to review each such delivered document. All matters shown on the Survey and exceptions listed in the Commitment which are not objected to by Buyer by delivery of written notice to the Majority Seller within the Title Objection Period shall be conclusively deemed to be acceptable to Buyer. In the event Buyer timely objects to any title exception or Survey matter ("Title Objection(s)"), the Majority Seller may, but shall not be obligated to, cure such Title Objection. In the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to cure any Title Objection, Buyer shall be deemed to have waived the Title Objections unless within five (5) days thereafter, elect by written notice to be received by such Affected Contributor on or before such fifth (5th) day, to (i) terminate this Agreement with respect to the Affected Parcel, in which case the Affected Parcel shall no longer be part of the Real Property which is to be contributed to the Partnership and the parties shall have no further rights or obligations hereunder with respect to such Affected Parcel except for those rights and obligations which expressly survive any such termination, or (ii) proceed with the transaction with respect to such Affected Parcel pursuant to the remaining terms and conditions of this Agreement, in which event the Company may, prior to Closing, cure, satisfy or insure over any such Defect which can be cured by the expenditure of money and reduce the general partnership interests allocated to the ▇▇▇▇▇ general partner by the amount so expended, provided that the total amount of such reductions shall not exceed (1) One Thousand Dollars ($1,000.00) in the aggregate on title endorsements, attorneys' fees and expenses and other out-of-pocket costs for clearance purposes with respect to all parcels comprising the Real Property other than for the Defects enumerated in clause (2) immediately following or (ii) Ten Thousand Dollars ($10,000.00) per acre, to remove, bond over or insure over any judgments against all Contributors or Land Trusts or mechanics' liens (which do not result from acts or omissions on the part of Company or the Partnership) which have attached to and become a lien against any of the parcels of the Real Property, except that there shall be no such notice, Buyer delivers limitation with regard to Majority Seller written clearance of liens and encumbrances voluntarily and intentionally recorded after the date of the Title Commitments against any of the parcels constituting the Real Property by or at the direction of any of the Contributors. If the Company fails to give the Affected Contributor timely notice of its exercise election following the Affected Contributor's failure to cure, remove or insure over a Defect in a timely manner, the Company shall be deemed to have elected the option contained in subparagraph (b) above. Company shall have the right at any time to waive any objections that it may have made and, thereby, to preserve this Agreement in full force and effect. (c) At Closing, Contributors shall deliver to Partnership an Affidavit of its right to terminate this Agreement. In Title in customary form covering the event that Buyer discovers any Lien on the Property or other matter relating to Closing Date and showing title in such Contributors subject only to the Property that was not disclosed on the Commitment that renders title Permitted Exceptions. R-4. Investigations. From time to the Property unmarketable or is otherwise unacceptable to Buyer, Buyer shall notify the Majority Seller promptly, and the Majority Seller may, but shall not be obligated to have the Lien released or other matters corrected to Buyer's reasonable satisfaction. In the event the Majority Seller notifies Buyer that the Sellers are unable or unwilling to effect such release or correction time prior to the ClosingClosing Date, Buyer the Partnership shall have the right to conduct any tests and inspections of the Property which are reasonably desired by the Partnership, including environmental testing, and to conduct any studies reasonably desired by Partnership relative to the feasibility of the proposed purchase and development of the Property and/or relative to compliance with all applicable requirements and conditions relative to the purchase, ownership and development of the Property (such tests, inspections and studies are collectively referred to as "Investigations"), provided that Partnership shall deliver to Contributors at least twenty-four (24) hours advance notice of each entry on the Property, with a description of the proposed activity, which notice can be verbal, but Partnership agrees to endeavor to give as much advance notice of each entry as is possible, with the intent that, if possible, Partnership will deliver such notice to Contributors in writing at least three (3) days prior to each entry. Such Investigations must be performed at no cost or expense to Contributors and with no material change with respect to the condition of the Property which could adversely affect the marketability or value thereof. If any such change occurs, Partnership shall be responsible therefor and shall immediately advise Contributors of same. Partnership shall promptly take any and all reasonable remedial measures directed by Contributors, at Partnership's sole risk and expense, and if Partnership fails to remedy any such change, Contributors shall have the right, prior to but not the Closingduty, to terminate this Agreement arrange for such remedial measures at the sole risk and expense of Partnership and all amounts paid by Contributors shall be reimbursed by the Partnership within 5 days after written demand from Contributors. Partnership shall indemnify, defend and hold Contributors and their officers, shareholders, directors, partners, employees and agents harmless against any liability, claim, action, loss, damage, cost or expense, including without limitation, attorney's fees and expenses, arising in connection with Partnership's investigation or the presence of Partnership's representatives on the Property (including agents and consultants for environmental and soil testing). Partnership agrees to deliver to Contributors, without charge to Contributors, as soon as each becomes available to Partnership, copies of each report, other than financial documentation, from any of the Investigations. Contributors hereby acknowledge that a reasonable number of soil borings conducted in accordance with Section 9.6 hereofreasonable and customary care and diligence is not a prohibited activity and shall not be considered a material change in the condition of the Property which could adversely affect the marketability or value thereof, after which Buyer will be deemed to have waived such rightprovided that Partnership promptly performs customary site restoration.