Title; Condition. 3.1.1 Buyer has obtained from the Title Company a current title commitment for the Property (the “Commitment”), together with copies of all documents available to the Title Company referenced as recorded exceptions in the Commitment. Within ten (10) business days after the Effective Date, Buyer may disapprove the Commitment by delivering written notice to Seller and Escrow Holder (the “Notice of Defect”) specifying each matter shown in the Commitment (including, without limitation, any matters listed on Exhibit C), if any, which is disapproved by Buyer (each a “Disapproved Exception”). Seller’s failure to receive the Notice of Defect within such 10 business day period of the Buyer’s receipt of the Commitment shall be conclusively deemed to constitute Buyer’s approval of the Commitment and satisfaction of this condition. 3.1.2 Within five (5) business days after receiving a Notice of Defect, Seller shall deliver to Buyer and Escrow Holder notice as to whether Seller will use its reasonable efforts to cure that Disapproved Exception(s). Buyer’s failure to receive any notice from Seller within that five (5) business day period shall be deemed to be notice to Buyer that Seller elected not to cure the Disapproved Exception(s). Buyer shall be deemed to have waived its disapproval of the Disapproved Exception(s) and to have agreed to acquire title to the Property subject to the Disapproved Exception(s) (in which event the Disapproved Exception(s) shall thereby become “Permitted Exceptions”), unless Buyer terminates this Agreement by written notice delivered to Seller and Escrow Holder within three (3) business days after Seller’s notice (or deemed notice) as provided in this Paragraph 3.1.2. 3.1.3 If Seller notifies Buyer in writing, as provided in Paragraph 3.1.2, that it would use its reasonable efforts to cure a Disapproved Exception, and then fails to cure that Disapproved Exception by no later than three (3) business days before the Closing Date, Buyer, as its only remedy for Seller having failed to cure the Disapproved Exception, may elect by written notice to Seller and Escrow Holder, to be received no later than two (2) business days before the Closing Date, either to terminate this Agreement or to close and to acquire the Property, subject to the Disapproved Exception(s), which Seller shall have no obligation to cure. Seller’s failure to receive notice of Buyer’s election by such time shall be deemed an election by Buyer to close and to acquire the Property, subject to the Disapproved Exceptions (which shall thereby become “Permitted Exceptions”). Notwithstanding the foregoing, Seller shall take all actions necessary to remove at Closing all mortgages, deeds of trust, mechanics’ liens caused by, through or under Seller or similar liens on the Property other than the lien of taxes not yet due or payable and liens not caused by, through or under Seller (“Liens”). 3.1.4 If Buyer properly elects to terminate this Agreement as provided in this Paragraph 3.1, this Agreement shall terminate and the Deposit shall be returned to Buyer as provided in Paragraph 6.2. 3.1.5 A Disapproved Exception shall be considered to have been cured if the Title Company agrees to issue the Title Policy to Buyer without that Disapproved Exception being reflected as an exception to coverage under the Title Policy or with such Disapproved Exception reflected but insured over via an endorsement approved by Buyer in its sole discretion. 3.1.6 For purposes of this Paragraph 3.1, “reasonable efforts” shall not include any obligation of Seller to incur any expense whatsoever in connection with correcting any Disapproved Exception, nor shall Seller’s notice to Buyer regarding any of those items obligate Seller to incur any expense, except to the extent required to remove any Lien or to the extent expressly stated otherwise in the notice. Nothing in this Paragraph 3.1 shall obligate Buyer to expend any funds to cure a Disapproved Exception(s). 3.1.7 If new title exceptions (collectively, the “New Exceptions”) encumbering the Property are raised by the Title Company after the expiration of the Due Diligence Period and prior to the date of Closing, Seller shall notify Buyer of any New Exceptions upon becoming aware of same and so long as such New Exceptions are not a result of the actions of Buyer or its agents, employees or contractors, and if the New Exceptions are not acceptable to Buyer, either: (i) Seller, at its option, will arrange for the Title Company to remove from or endorse over the New Exceptions in Buyer’s title policy with an endorsement acceptable to Buyer in its sole discretion; or (ii) if Seller fails to exercise its option under (i) above, Buyer may elect by written notice to Seller and Escrow Holder, to be received no later than the Closing Date, either to terminate this Agreement and, upon such election, Buyer shall receive a refund of the Deposit or to close and to acquire the Property, subject to the New Exceptions, which Seller shall have no obligation to cure. Notwithstanding the foregoing, Seller shall be obligated to remove, at or before Closing, all New Exceptions caused to appear of record by Seller. Seller’s failure to receive notice of Buyer’s election within such time period shall be deemed an election by Buyer to close and acquire the Property subject to the New Exceptions (which shall thereby become “Permitted Exceptions”).
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Title; Condition. 3.1.1 (a) Within five (5) calendar days after the Effective Date, Seller shall deliver to Buyer has obtained from the Title Company a current title commitment preliminary report for the Property (the “Preliminary Report”). During the Title Approval Period, Buyer may at ▇▇▇▇▇’s expense secure a survey of the Property prepared in accordance with the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys (the “Survey”). On or before the expiration of the Title Approval Period, Buyer shall order and have received a Title Commitment from the Title Company wherein the Title Company commits to issue the Title Policy upon the satisfaction and deletion of all requirements listed therein with no transfer of any such requirements to Schedule B and the payment of the premium therefor (the “Title Commitment”), together with copies . No later than the last day of all documents available to the Title Company referenced as recorded exceptions Approval Period, ▇▇▇▇▇ may disapprove of any of the matters reflected in the Commitment. Within ten (10) business days after Title Commitment or the Effective Date, Buyer may disapprove the Commitment Survey by delivering written notice to Seller and Escrow Holder (the “Notice of Defect”) specifying each matter shown in the Title Commitment (including, without limitation, any matters listed on Exhibit C)or Survey, if any, which is disapproved by Buyer (each a “Disapproved Exception”)) and stating the reasons for each disapproval. Seller’s failure to receive the Notice of Defect within such 10 business day period of the Buyer’s receipt of the Commitment Title Approval Period shall be conclusively deemed to constitute Buyer’s approval of the Title Commitment and Survey (if any) and satisfaction of the title condition under this conditionparagraph 3.
3.1.2 1. Buyer acknowledges that all new real estate developments at Kapalua are subjected to a covenant requiring payment to the Kapalua Resort Association of a 0.5% transfer fee on sales and resales of real estate. Buyer acknowledges that at Closing Seller shall reserve, for itself and for the benefit of the Kapalua Resort Association, an easement, in the form attached as Exhibit D, to use the Roadway Lots and the existing Kapalua Drive within the Property until such time as Buyer redevelops Kapalua Drive in accordance with its Development Plan as described below and dedicates them to the Kapalua Resort Association.
(b) Within five (5) business days after receiving a the Notice of Defect, Seller shall deliver to Buyer and Escrow Holder notice as to whether Seller will use its reasonable efforts to cure that or not cure each of the Disapproved Exception(s). Buyer’s failure to receive any notice from Seller within that five (5) business day 5‑day period shall be deemed to be notice to Buyer that Seller elected not to cure the Disapproved Exception(s). If Seller elects not to cure one or more Disapproved Exception(s), Buyer shall may terminate this Agreement prior to the expiration of the Due Diligence Period. If Buyer does not so terminate this Agreement, Buyer will be deemed to have waived its disapproval of the such Disapproved Exception(s) Seller has elected not to cure and to Buyer shall have agreed to acquire title to the Property subject to the Disapproved Exception(s) (in which event the Disapproved Exception(s) shall thereby become “Permitted Exceptions”), unless Buyer terminates this Agreement by written notice delivered to Seller and Escrow Holder within three (3) business days after Seller’s notice (or deemed notice) as provided in this Paragraph 3.1.2.
3.1.3 If Seller notifies Buyer in writing, as provided in Paragraph 3.1.2, that it would use its reasonable efforts to cure a Disapproved Exception, and then fails to cure that Disapproved Exception by no later than three (3) business days before the Closing Date, Buyer, as its only remedy for Seller having failed to cure the Disapproved Exception, may elect by written notice to Seller and Escrow Holder, to be received no later than two (2) business days before the Closing Date, either to terminate this Agreement or to close and to acquire the Property, subject to the such Disapproved Exception(s), which Seller shall have no obligation to cure. Seller’s failure to receive notice of Buyer’s election by such time shall be deemed an election by Buyer to close and to acquire the Property, subject to the Disapproved Exceptions (which shall thereby become “Permitted Exceptions”). Notwithstanding the foregoing, Seller shall take all actions necessary to remove at Closing all mortgages, deeds of trust, mechanics’ liens caused by, through or under Seller or similar liens on the Property other than the lien of taxes not yet due or payable and liens not caused by, through or under Seller (“Liens”).
3.1.4 (c) If Buyer properly elects to terminate terminates this Agreement as provided in this Paragraph paragraph 3.1, this Agreement shall terminate and the Initial Deposit shall be returned to Buyer as provided in Paragraph 6.2paragraph 7.3.
3.1.5 (d) A Disapproved Exception shall be considered to have been cured by Seller if the Title Company agrees to issue the Title Policy (including any applicable endorsement approved by Buyer in its reasonable discretion) to Buyer either without that Disapproved Exception being reflected as an exception to coverage under the Title Policy or with noting such Disapproved Exception reflected but insured over via exception and providing an endorsement approved insuring over such noted exception. The cost of such endorsement shall be borne by Buyer in its sole discretionSeller.
3.1.6 For purposes of this Paragraph 3.1, “reasonable efforts” shall not include any obligation of Seller to incur any expense whatsoever in connection with correcting any Disapproved Exception, nor shall Seller’s notice to Buyer regarding any of those items obligate Seller to incur any expense, except to the extent required to remove any Lien or to the extent expressly stated otherwise in the notice. Nothing in this Paragraph 3.1 shall obligate Buyer to expend any funds to cure a Disapproved Exception(s).
3.1.7 If new title exceptions (collectively, the “New Exceptions”e) encumbering the Property are raised by the Title Company after the expiration of the Due Diligence Period and prior to the date of Closing, Seller shall notify Buyer of any New Exceptions upon becoming aware of same and so long as such New Exceptions are not a result of the actions of Buyer or its agents, employees or contractors, and if the New Exceptions are not acceptable to Buyer, either: (i) Seller, at its option, will arrange for the Title Company to remove from or endorse over the New Exceptions in Buyer’s title policy with an endorsement acceptable to Buyer in its sole discretion; or (ii) if Seller fails to exercise its option under (i) above, Buyer may elect by written notice to Seller and Escrow Holder, to be received no later than the Closing Date, either to terminate this Agreement and, upon such election, Buyer shall receive a refund of the Deposit or to close and to acquire the Property, subject to the New Exceptions, which Seller shall have no obligation to cure. Notwithstanding the foregoing, Seller shall be obligated to removedischarge any mortgages, at or before Closing, all New Exceptions caused to appear of record by Seller. Seller’s failure to receive notice and other monetary liens affecting the Property (other than governmental liens such as taxes and assessments not yet due) which are not the result of Buyer’s election within such time period shall be deemed an election by Buyer to close and acquire the Property subject to the New Exceptions (which shall thereby become “Permitted Exceptions”)conduct or actions.
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Sources: Purchase and Sale Agreement (Maui Land & Pineapple Co Inc)
Title; Condition. 3.1.1 As soon as reasonably practicable after the Opening of Escrow, Buyer has obtained shall request and obtain from the Title Company a current title commitment CLTA coverage preliminary report for the Property (the “Commitment”"Preliminary Report"), together with copies of all documents available to the Title Company company referenced as recorded exceptions in the CommitmentPreliminary Report. Within ten (10) business days after No later than the Effective Datelast day of the Due Diligence Period, Buyer may disapprove the Commitment Preliminary Report by delivering written notice to Seller and Escrow Holder (the “"Notice of Defect”") specifying each matter shown in the Commitment (including, without limitation, any matters listed on Exhibit C)Preliminary Report, if any, which is disapproved by Buyer (each a “"Disapproved Exception”"). Seller’s 's failure to receive the Notice of Defect within such 10 business day period of the Buyer’s receipt of the Commitment Due Diligence Period shall be conclusively deemed to constitute Buyer’s approval 's disapproval of the Commitment and satisfaction Preliminary Report as if Buyer had delivered a Notice of this conditionDefect disapproving each matter shown in the Preliminary Report.
3.1.2 Within five (5) business days after receiving a Notice of Defect or after the end of the Due Diligence Period if Buyer failed to deliver the Notice of Defect, Seller shall deliver to Buyer and Escrow Holder notice as to whether Seller will use its reasonable efforts to cure that the Disapproved Exception(s). Buyer’s 's failure to receive any notice from Seller within that five (5) business day period shall be deemed to be notice to Buyer that Seller elected not to cure the Disapproved Exception(s). Buyer shall be deemed to have waived terminated this Agreement under Paragraph 6.3 unless Buyer waives its disapproval of the Disapproved Exception(s) and to have agreed agrees to acquire title to the Property subject to the Disapproved Exception(s) (in which event the Disapproved Exception(s) shall thereby become “Permitted Exceptions”), unless Buyer terminates this Agreement by written notice delivered to Seller and Escrow Holder within three (3) business days after Seller’s 's notice (or deemed notice) as provided in this Paragraph 3.1.23.
3.1.3 If Seller notifies Buyer in writing, as provided in Paragraph 3.1.2, that it would use its reasonable efforts to cure a Disapproved Exception, and then fails to cure that Disapproved Exception by no later than three (3) business days before the Closing Date, Buyer, as its only remedy for Seller having failed to cure the Disapproved Exception, may elect by written notice to Seller and Escrow Holder, to be received no later than two (2) business days before the Closing Date, either to terminate this Agreement or to close Close Escrow and to acquire the Property, subject to the Disapproved Exception(s), which Seller shall have no obligation to cure. Seller’s 's failure to receive notice of Buyer’s 's election by such time shall be deemed an election by Buyer to close and to acquire the Property, subject to the Disapproved Exceptions (which shall thereby become “Permitted Exceptions”). Notwithstanding the foregoing, Seller shall take all actions necessary to remove at Closing all mortgages, deeds of trust, mechanics’ liens caused by, through or under Seller or similar liens on the Property other than the lien of taxes not yet due or payable and liens not caused by, through or under Seller (“Liens”)terminate this Agreement.
3.1.4 If Buyer properly elects to terminate this Agreement as provided in this Paragraph 3.1, or if this Agreement is deemed to be terminated as provided in this Paragraph 3.1, this Agreement shall terminate and the Deposit shall be returned to Buyer as provided in Paragraph 6.26.3. Additionally, if Seller fails to use reasonable efforts to cure a Disapproved Exception after notifying Buyer of Seller's intention to do so, and if Buyer terminates this Agreement because of the Disapproved Exception which Seller failed to use reasonable efforts to cure, Seller shall pay Buyer's reasonable out-of-pocket expenses incurred in connection with this transaction (not to exceed $40,000.00 in any event) during the period between the date on which Buyer received notice from Seller that Seller would use reasonable efforts to cure such exception and the date of such termination.
3.1.5 A Disapproved Exception shall be considered to have been cured if the Title Company agrees to issue the Title Policy to Buyer without that Disapproved Exception being reflected as an exception to coverage under the Title Policy or with such Disapproved Exception reflected but insured over via an endorsement approved by Buyer in its sole discretionacceptable to Buyer.
3.1.6 For purposes of this Paragraph 3.1, “"reasonable efforts” " shall not include any obligation of Seller to incur any expense whatsoever in connection with correcting any Disapproved ExceptionException (except with respect to Seller's own financing or other security transactions), nor shall Seller’s 's notice to Buyer regarding any of those items obligate Seller to incur any expense, except to the extent required to remove any Lien or to the extent expressly stated otherwise in the notice. Nothing in this Paragraph 3.1 shall obligate Buyer to expend any funds to cure a Disapproved Exception(s).
3.1.7 If new title exceptions (collectively, the “New Exceptions”) encumbering the Property are raised by the Title Company after the expiration of the Due Diligence Period and prior to the date of Closing, Seller shall notify Buyer of any New Exceptions upon becoming aware of same and so long as such New Exceptions are not a result of the actions of Buyer or its agents, employees or contractors, and if the New Exceptions are not acceptable to Buyer, either: (i) Seller, at its option, will arrange for the Title Company to remove from or endorse over the New Exceptions in Buyer’s title policy with an endorsement acceptable to Buyer in its sole discretion; or (ii) if Seller fails to exercise its option under (i) above, Buyer may elect by written notice to Seller and Escrow Holder, to be received no later than the Closing Date, either to terminate this Agreement and, upon such election, Buyer shall receive a refund of the Deposit or to close and to acquire the Property, subject to the New Exceptions, which Seller shall have no obligation to cure. Notwithstanding the foregoing, Seller shall be obligated to remove, at or before Closing, all New Exceptions caused to appear of record by Seller. Seller’s failure to receive notice of Buyer’s election within such time period shall be deemed an election by Buyer to close and acquire the Property subject to the New Exceptions (which shall thereby become “Permitted Exceptions”).
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