Title Exceptions. Buyer acknowledges that Seller has delivered a Title Report from the Title Insurer for each of the Properties together with a survey of each of the Properties to Buyer. Buyer shall have until the last day of the Due Diligence Period to object to any exception to title appearing in the Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price. (a) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same. (b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.
Appears in 1 contract
Sources: Purchase and Sale Agreement (U S Restaurant Properties Inc)
Title Exceptions. Seller has provided Buyer with certain existing title reports in Seller’s possession regarding portions of the Real Property. Prior to the Effective Date, Buyer by letter dated October 8, 2018, requested that Seller take certain actions with respect to matters shown in those title reports (the “Initial Title Objections”). Seller responded by letter dated October 31, 2018 (the “Seller Title Objection Response”) and the Title Commitment was thereafter issued by the Title Company. If the Title Company adds or Buyer discovers, prior to Closing, any new title exceptions or requirements (a) that are Mandatory Cure Exceptions (as defined below), (b) that are caused or consented to by Seller or any of its agents or affiliates after the date of the Title Commitment, or (c) that in Buyer’s reasonable opinion are reasonably certain to materially impair Buyer’s ownership and use of the Property as a whole for Buyer’s intended use, then Buyer shall notify Seller of any such exceptions or requirements to which Buyer objects (the “Additional Title Objections”) within three (3) days of Title Company’s notification or Buyer’s discovery of such exception or requirement, and in any event no later than three (3) days prior to the Closing. All such exceptions or requirements to which Buyer does not so object shall be deemed “Permitted Exceptions”. In addition, and notwithstanding anything contained herein to the contrary, and except for exceptions that Seller expressly agreed to remove in the Seller Title Objection Response, the following shall be Permitted Exceptions: (a) the reservation to the State of Hawaii of mineral and water rights of any nature; (b) the lien of all ad valorem real property taxes and assessments, general, special and/or rollback, not yet due and payable as of the Closing Date; (c) applicable zoning and building ordinances and land use regulations, now or hereafter in effect relative to the Real Property; (d) discrepancies, conflicts in boundary lines, shortage in area, encroachments or any other matters which a correct survey, archaeological study or physical inspection of the Real Property would disclose; (e) any and all existing roadways, trails, easements, rights of way, flumes and irrigation ditches; (f) claims arising out of customary and traditional rights and practices, including without limitation those exercised for subsistence, cultural, religious, access or gathering purposes, as provided for in the Hawaii Constitution or the Hawaii Revised Statutes; (g) any exceptions caused by Buyer, its agents, representatives or employees; and (h) all exceptions contained in the Title Commitment. Buyer acknowledges that Seller has delivered a Title Report from title reports or commitments are not available for every parcel included within the Title Insurer Real Property, and the absence of such reports or commitments alone is not grounds for each Buyer to assert any title objections. Further, Buyer acknowledges that certain portions of the Properties together with a survey of each of the Properties Real Property are known to Buyer. have broken or otherwise uninsurable title, and that notwithstanding any objections Buyer shall may have until the last day of the Due Diligence Period to object to any exception to title appearing in the Title Report or survey which materially impairs marketability of title by delivering written notice anything to the contrary herein Seller (for each Property an "Objection" will not be undertaking any efforts to make title to such portions insurable, and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that all such exception portions shall be a Permitted Exception and Buyer shall be obligated to proceed with the conveyed at Closing and take title to the Properties subject to such exceptions to title by quitclaim deed without a reduction warranties of the Purchase Pricetitle.
(a) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Alexander & Baldwin, Inc.)
Title Exceptions. Buyer acknowledges that Seller (i) Within ten (10) Business Days after the date upon which Purchaser has delivered a received any draft Title Report from Commitment or Survey (the Title Insurer for each “Initial Objection Date”), Purchaser’s counsel shall notify Sellers’ counsel in writing of the Properties together with a survey of each of the Properties any title matters (subject to Buyer. Buyer shall have until the last day sentence of this Section 8.8(e)(i)) shown on such draft Title Commitment or Survey that (A) materially impair the Due Diligence Period use or value of any Owned Real Property (other than any pipeline pump stations), as applicable, and (B) are not Permitted Encumbrances (collectively referred to object as “Material Title Exceptions”). With respect to any exception to matter affecting title first appearing in the any draft update to any Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed Commitment in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt respect of such ObjectionOwned Real Property, Seller which draft update is first received by Purchaser’s counsel ten (10) Business Days prior to or on or after the Initial Objection Date, Purchaser’s counsel shall have notify the right, but not the obligation, to seek to eliminate, cure or correct Sellers’ counsel of any such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) matter that Purchaser believes constitutes Material Title Exceptions within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then such update (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above date and the Purchase Price shall be reduced by Initial Objection Date are sometimes referred to herein as the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an “Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct sameDate”). If Seller, having elected Purchaser fails to attempt give an objection notice pursuant to cure such exceptions this Section 8.8(e) with respect to title, fails so to do within such ninety any matter shown in any draft Title Commitment or Survey (90or any draft update thereto) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject with respect to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to Owned Real Property on or before the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to titleapplicable Objection Date, Seller Purchaser shall be deemed to have elected NOT irrevocably waived its right to seek object to cure samesuch matter as a Material Title Exception. Without limiting the generality of the foregoing, the Parties agree that (1) the items set forth on Schedule 8.8(e)(i), (2) any Environmental 43 Liability and (3) any regulatory or Permit matter necessary for the ownership or use of any Owned Real Property shall not be deemed to be Material Title Exceptions.
(bii) If Seller elects not No later than five (5) Business Days prior to the Closing Date, Sellers shall be deemed to have removed, satisfied or cured a Material Title Exception if, in Sellers’ sole and absolute discretion, Sellers either: (A) took such actions as are commercially reasonable to remove, satisfy or cure all the Objections (of record or otherwise, as appropriate) such Material Title Exception; or (B) caused any applicable title company to remove such Material Title Exception as an exception to title on in any Property encumbered by same, Buyer may, new or updated Title Commitment or policy to be issued at its election, (x) proceed with or around the Closing (including by providing affirmative insurance). Notwithstanding anything contained herein to the contrary, Sellers shall not be required and are not obligated to bring any Legal Proceedings, convey or acquire any interest in real property, incur any expense or liability with respect to the removal or cure of Material Title Exceptions or take any other action of any kind or nature to render title to all any of the Owned Real Properties subject to such exceptions to free and clear of any title without a reduction of the Purchase Priceor survey exceptions, objections or (y) terminate this Agreement by written notice to Sellerencumbrances, in which case the Deposit shall be returned to Buyer and thereafter neither party Purchaser shall have no right of specific performance or other relief against Sellers to cause any obligation Material Title Exceptions to the other under this Agreement, provided, be satisfied or cured; provided however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer Sellers shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth cure mortgages and monetary liens in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page respect of the facsimile copy of such notice by the facsimile unit receiving sameOwned Real Properties.
Appears in 1 contract
Title Exceptions. Buyer acknowledges that Seller has delivered a Title Report from the Title Insurer for each of the Properties together with a survey of each of the Properties to Buyer. (a) Buyer shall have until the last day of the Due Diligence Period to object to any exception to title appearing in the Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take accept title to the Properties Property subject to such exceptions the Permitted Exceptions. In the event that at or prior to Closing, Buyer determines that there are title without a reduction of defects other than the Purchase Price.
(a) Upon receipt of such ObjectionPermitted Exceptions, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) so notify Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of receiving notice of such notice; title defects. Seller shall have no obligation to cure any title defects to which Buyer has objected, except that Seller shall be obligated to (i) remove by bond or otherwise any monetary liens affecting the Property which were granted by Seller pursuant to an instrument executed by Seller, and (zii) if remove by bond or otherwise any other monetary liens (including tax liens) against the Property to the extent the cost of such exceptions removal or cure does not exceed One Hundred Thousand and No/100 ($100,000.00) Dollars in the aggregate. If Seller shall desire to remove any title can only be satisfied objections raised by the payment of moneyBuyer, Seller shall be entitled to apply a portion reasonable adjournments of the Purchase Price payable on Closing for the purpose of removing any such Closing Date for such Property(ies) in order to cure or correct sametitle objections. If Seller, having elected Seller fails to attempt remove or elects not to cure such exceptions to title, fails so to do within such ninety (90) day periodremove any title defect as provided above, Buyer shall have no further obligation the right, at Buyer's election in its sole an absolute discretion, to purchase cancel this Agreement and receive a refund of the Deposit together with any accrued interest thereon, or to close title notwithstanding the title defects (x) without any credit against the Purchase Price for such title defect, or (y) a credit or credits for the amount of any monetary lien Seller is obligated but fails to remove pursuant to (i) above, and up to $100,000 for the defects which Seller is obligated to but fails to remove pursuant to (ii) above.
(b) Seller shall deliver title to the Property in accordance with the terms hereof and as any reputable title company licensed to do business in the State of New York will approve and insure at its standard rates subject only to the Permitted Exceptions. Subsequent to the Closing, Buyer shall look solely to its title insurance company for any claims arising in respect of title matters and Seller shall have no further obligation liability to sell the Properties subject to such uncured exceptions to Buyer for title unless Buyer forthwith elects to purchase such Properties subject defects which are discovered subsequent to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure sameClosing.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.
Appears in 1 contract
Sources: Purchase Agreement (Edo Corp)
Title Exceptions. Buyer acknowledges that Seller has delivered a Title Report from On or before the Title Insurer for each of the Properties together with a survey of each of the Properties to Buyer. Buyer shall have until the last day expiration of the Due Diligence Period to object to Period, Purchaser shall notify Seller in writing (“Title Objection Notice”) of any exception to title appearing exceptions identified in the preliminary title reports for the Properties (“Preliminary Title Reports”) that Purchaser disapproves in its sole and absolute discretion (“Title Objections”). Any exception shown on the Preliminary Title Reports that is not listed as a Title Objection in the Purchaser’s Title Objection Notice will be deemed approved by Purchaser and shall constitute a “Permitted Exception” hereunder. Purchaser and Seller hereby agree that all non-delinquent property taxes and assessments as of the Closing shall be deemed a Permitted Exception. If Purchaser fails to timely provide a Title Objection Notice, such failure shall be deemed an election by Purchaser to approve all title exceptions identified in the Preliminary Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections")as Permitted Exceptions. If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. a period of five (New York time) within ten (105) days after following its receipt of all Objections the Title Objection Notice within which to notify Purchaser in writing (“Title Objection Response”) of its agreement to remove, alter, modify or otherwise mitigate to the Property(ies) satisfaction of Purchaser any Title Objection. Seller’s failure to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an timely provide a Title Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall Response will be deemed to have elected NOT to seek to cure same.
(b) If an election by Seller elects not to cure all the Title Objections prior to title on the Closing. In the event that Seller is not willing to remove, alter, modify or otherwise mitigate to the satisfaction of Purchaser any Property encumbered by sameTitle Objection, Buyer mayPurchaser shall elect, at its election, (x) proceed with prior to the Closing and take title to all expiration of the Properties subject Due Diligence Period, to either (i) waive its disapproval of such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Sellerexception, in which case such exception shall then be deemed to be a Permitted Exception, or (ii) terminate its obligation to purchase the Assigned Interests and Direct Sale Properties. Purchaser’s failure to give such notice shall be deemed an election to waive its disapproval of such exception and to accept such disapproved exception as a Permitted Exception. In the event Purchaser elects to terminate its obligation to purchase the Assigned Interests and Direct Sale Properties in accordance with this Section, the Deposit shall be returned immediately refunded by Escrow Agent to Buyer Purchaser without the need for any additional instructions from the parties, and thereafter Purchaser’s obligation to purchase, and Seller’s obligation to sell, the Assigned Interests and Direct Sale Properties shall terminate, and neither party Party shall have any further obligation to the other under except as otherwise provided in this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Title Exceptions. (a) Buyer acknowledges that Seller has delivered a Title Report from Buyer will review during the Due Diligence Period: Sellers' existing title insurance policies; the Title Insurer for Reports issued by the Title Company with respect to each of the Properties together Properties; documents and information pertaining to the exceptions to title listed in the Title Reports; and ALTA/ATSM surveys with a survey of respect to each of the Properties to BuyerProperties. Buyer shall have until the last day of may secure during the Due Diligence Period any additional title report or survey updates desired by Buyer. Any title exceptions or issues disclosed by title or survey updates, disclosed by Sellers to object Buyer or otherwise identified by Buyer which are not within the definition of Permitted Exceptions shall be referred to any exception as "Additional Exceptions." Sellers, moreover, shall exercise reasonable efforts to cause Title Company to honor Title Company's undertaking to issue to Buyer title appearing insurance policies substantially in the Title Report form of Sellers' existing policies with modification to reflect intervening title matters, provided that Sellers make no representation or survey which materially impairs marketability of title by delivering written notice covenant as to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that enforceability or performance of such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase PriceTitle Company undertaking.
(ab) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then (x) Seller shall have the right to adjourn deliver a written notice to Sellers identifying any Additional Exceptions on or prior to the Closing for such Property(ies) for such periodDue Diligence Completion Date and with respect to any Additional Exceptions of which Buyer first becomes aware after the Due Diligence Completion Date, not to exceed ninety within five (905) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion after becoming aware of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected Buyer's failure to attempt to cure deliver any such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction notice in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller timely fashion shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on an approval of any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned Additional Exceptions disclosed to Buyer and thereafter neither party shall have in any obligation title or survey updates, disclosed to Buyer by Sellers in writing or otherwise discovered by Buyer during the Due Diligence Period with respect to any Additional Exceptions of which it is aware on or prior to the other under this AgreementDue Diligence Completion Date, providedand with respect to any Additional Exceptions of which Buyer first becomes aware after the Due Diligence Completion Date, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten within five (105) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page becoming aware of the facsimile copy of such notice by the facsimile unit receiving same.
Appears in 1 contract
Title Exceptions. Buyer acknowledges (a) Acquiror has secured and may continue to secure, at Acquiror's expense, during the Confirmation Period any additional title report or survey updates desired by Acquiror. Any title exceptions or issues disclosed by title or survey updates, disclosed by Contributor to Acquiror or otherwise identified by Acquiror, and which are not within the definition of Permitted Exceptions, shall be referred to as "Additional Exceptions." Acquiror, in any event, shall endeavor in good faith to cause the Title Company to delete or insure over any Additional Exceptions prior to Acquiror's expression of such matters in an Additional Exception Notice (as hereinafter defined).
(b) Acquiror shall have the right to deliver a notice to Contributor identifying any Additional Exceptions ("Additional Exception Notice") (i) on or prior to the expiration of the Confirmation Period, and (ii) on or prior to the Closing Date solely with respect to matters that Seller has delivered a (A) are set forth in an update to the Title Report from first received by Acquiror after the Title Insurer for each expiration of the Properties together with Confirmation Period which materially and adversely affect the Property or Acquiror's rights in the Property, or (B) arise as a survey result of each an act or omission of Contributor, its partners, employees or agents and materially and adversely affect the Property or Acquiror's rights in the Property. Acquiror's failure to deliver any such notice in timely fashion shall be deemed an approval of the Properties applicable Additional Exceptions disclosed to Buyer. Buyer shall have until the last day of the Due Diligence Period to object to any exception to title appearing Acquiror in the Title Report or any title or survey which materially impairs marketability updates, or disclosed to Acquiror by Contributor in writing or otherwise discovered by Acquiror during the Confirmation Period. Except as set forth above, Acquiror shall have no right to deliver an Additional Exception Notice following the close of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections")Confirmation Period. If Buyer fails Acquiror delivers an Additional Exception Notice within such period, Acquiror and Contributor shall promptly attempt to object as prescribed in this section then agree upon the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure method or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek cost to cure or correct sameremove such Additional Exception or, then (x) Seller if not susceptible to cure or removal such Additional Exception shall be deemed to be an Adverse Matter and shall be resolved in accordance with the procedures set forth in SECTION 3.2. Notwithstanding the foregoing, Acquiror shall not have the right to adjourn the Closing for such Property(ies) for such period, not object to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) any Additional Exception if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated Company is willing to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether affirmatively insure or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of endorse over such notice by the facsimile unit receiving sameAdditional Exception at Contributor's expense.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (CBL & Associates Properties Inc)
Title Exceptions. (a) Buyer acknowledges that Seller has delivered a Title Report from prior to the date hereof, Transferors have provided to Buyer access to copies of the Title Insurer for each Policies, as well as copies of the Properties together with a survey of each exception documents referred to in the Title Policies and copies of the Properties Surveys of the Properties, to Buyerthe extent such exceptions are in Transferors' immediate possession. Buyer also acknowledges that Transferors have requested Title Company to deliver to Buyer updated title reports to the Title Policies, as well as copies of any exception documents relating to exceptions that are reflected in such updates that have not otherwise been provided to Buyer prior to the date hereof; provided that Transferors shall have no liability hereunder if Buyer is unable to obtain copies of any such documents and Buyer shall have until no rights hereunder with respect thereto. Buyer may continue to secure during the last day Confirmation Period any additional title or survey updates desired by Buyer (and will use reasonable efforts to provide the copies of such updates to Transferors promptly after receipt of same by Buyer). As used herein, the Due Diligence Period term "Additional Exceptions" shall mean (i) any title exceptions or survey exceptions or qualifications identified by Title Company that are not within the definition of Permitted Exceptions, (ii) the items listed on Exhibit G-2 to object the extent they materially and adversely affect the use, occupancy or value of a Property, provided that such items shall not be deemed to materially and adversely affect the use, occupancy and value of a Property to the extent Buyer has approved (or is deemed to have approved) exceptions on such Property or other Properties which are substantially similar in all material respects, (iii) matters shown on surveys described in the Exhibit G Title Policies (as defined in Exhibit G) or, if such surveys cannot be located or otherwise obtained, on new surveys obtained by Buyer, for the Properties identified on Exhibit G-2 which were not shown on the surveys for such Properties delivered or made available to Buyer, if applicable, and which materially and adversely affect the use, occupancy or value of a Property, provided that such items shall not be deemed to materially and adversely affect the use, occupancy and value of a Property to the extent Buyer has approved (or is deemed to have approved) such matters on such Property or other Properties which are substantially similar in all material respects, and (iv) with respect to any exception Property as to title appearing in which the Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the right, but Company will not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within agree at least ten (10) business days after receipt of all Objections prior to the Property(iesend of the Confirmation Period to issue a survey endorsement referring to the same survey as is referenced in Transferors' most recent Exhibit G Title Policy (for such Property), any variance established by Buyer from the legal descriptions insured in Transferors' most recent Exhibit G Title Policies to the surveys described in such Title Policies (other than variances actually known to Buyer as of the date hereof). Buyer, in any event, shall endeavor in good faith (but at no out-of-pocket cost to Buyer) to seek cause the Title Company to cure delete or correct same, then (x) Seller shall have the right insure over any Additional Exceptions to adjourn the Closing for such Property(ies) for such period, not Buyer's reasonable satisfaction prior to exceed ninety (90) days as shall, in SellerBuyer's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days expression of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) matters in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.an
Appears in 1 contract
Title Exceptions. (a) Buyer acknowledges that Seller has delivered a Title Report from prior to the date hereof, Transferors have provided to Buyer access to copies of the Title Insurer for each Policies, as well as copies of the Properties together with a survey of each exception documents referred to in the Title Policies and copies of the Properties Surveys of the Properties, to Buyerthe extent such exceptions are in Transferors' immediate possession. Buyer also acknowledges that Transferors have requested Title Company to deliver to Buyer updated title reports to the Title Policies, as well as copies of any exception documents relating to exceptions that are reflected in such updates that have not otherwise been provided to Buyer prior to the date hereof; provided that Transferors shall have no liability hereunder if Buyer is unable to obtain copies of any such documents and Buyer shall have until no rights hereunder with respect thereto. Buyer may continue to secure during the last day Confirmation Period any additional title or survey updates desired by Buyer (and will use reasonable efforts to provide the copies of such updates to Transferors promptly after receipt of same by Buyer). As used herein, the Due Diligence Period term "Additional Exceptions" shall mean (i) any title exceptions or survey exceptions or qualifications identified by Title Company that are not within the definition of Permitted Exceptions, (ii) the items listed on Exhibit G-2 to object the extent they materially and adversely affect the use, occupancy or value of a Property, provided that such items shall not be deemed to materially and adversely affect the use, occupancy and value of a Property to the extent Buyer has approved (or is deemed to have approved) exceptions on such Property or other Properties which are substantially similar in all material respects, (iii) matters shown on surveys described in the Exhibit G Title Policies (as defined in Exhibit G) or, if such surveys cannot be located or otherwise obtained, on new surveys obtained by Buyer, for the Properties identified on Exhibit G-2 which were not shown on the surveys for such Properties delivered or made available to Buyer, if applicable, and which materially and adversely affect the use, occupancy or value of a Property, provided that such items shall not be deemed to materially and adversely affect the use, occupancy and value of a Property to the extent Buyer has approved (or is deemed to have approved) such matters on such Property or other Properties which are substantially similar in all material respects, and (iv) with respect to any exception Property as to title appearing in which the Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the right, but Company will not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within agree at least ten (10) business days after receipt of all Objections prior to the Property(iesend of the Confirmation Period to issue a survey endorsement referring to the same survey as is referenced in Transferors' most recent Exhibit G Title Policy (for such Property), any variance established by Buyer from the legal descriptions insured in Transferors' most recent Exhibit G Title Policies to the surveys described in such Title Policies (other than variances relating to the Palm Aire Additional Parcel (as such term is defined in Exhibit A) as previously disclosed to Buyer or otherwise actually known to Buyer as of the date hereof). Buyer, in any event, shall endeavor in good faith (but at no out-of-pocket cost to Buyer) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on cause the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.Company to
Appears in 1 contract
Title Exceptions. Buyer acknowledges that Seller has delivered a 5.3.1. At any time prior to the expiration of the thirty (30) days following Buyer’s receipt of the Preliminary Title Report from the Title Insurer for each of the Properties together with a survey of each of the Properties to Buyer. and Underlying Documents, Buyer shall have until notify Seller and Escrow Holder in writing of any title exceptions identified in the last day Preliminary Title Report which Buyer disapproves. Any exceptions shown on the Preliminary Title Report which are not disapproved in writing on or before the expiration of the Due Diligence Period to object to any exception to title appearing in the Title Report or survey which materially impairs marketability of title shall be deemed approved by delivering written notice to the Buyer and shall constitute “Permitted Exceptions” hereunder. Buyer and Seller (for each Property an "Objection" hereby agrees that all non-delinquent property taxes and collectively "Objections")assessments shall be deemed Permitted Exceptions.
5.3.2. If Buyer fails disapproves any exceptions reflected in the Preliminary Title Report (“Disapproved Exceptions”), Seller shall have a period of ten (10) business days, commencing at the time of such disapproval, within which to object as prescribed in this section then remove, cure, obtain endorsements against, or otherwise provide assurances satisfactory to Buyer and the Buyer acknowledges and agrees that Title Company with respect to any such exception to title. Seller’s failure to timely respond to Buyer’s notice of Disapproved Exceptions shall be a Permitted Exception deemed Seller’s election not to eliminate the Disapproved Exceptions. All monetary liens shall be deemed Disapproved Exceptions and Buyer Seller shall be obligated to proceed with eliminate them before or at the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase PriceDate.
(a) Upon receipt 5.3.3. If a cure satisfactory to Buyer of such ObjectionDisapproved Exceptions is not effected within said ten (10)-business day period, Buyer shall elect, in writing delivered to Seller shall have the rightand Escrow Holder, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections thereafter, to the Property(ieseither (i) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days waive its disapproval of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Sellerexceptions, in which case the Deposit such exceptions shall then be returned deemed to Buyer and thereafter neither party shall have any obligation to the other under be Permitted Exceptions, (ii) terminate this Agreement, providedor (iii) agree, howeverin writing, that with Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not extend Buyer’s time to cure.
5.3.4. To be effective, each notice delivered by In the event Buyer elects to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent terminate this Agreement in accordance with clause 5.3.3(ii) above, the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given Deposit, plus all interest accrued thereon while in a timely manner Escrow, shall be resolved by reference immediately refunded to Buyer, less any amounts due to Escrow Holder from Buyer pursuant to Section 4.5.1 of this Agreement. Escrow Holder shall immediately return all other documents, instruments and moneys to the date and time stamped on Party that deposited the first page of the facsimile copy of such notice by the facsimile unit receiving same.
5.3.5. In the event that Escrow Holder or Seller agrees that it shall remove, cure, or endorse against any Disapproved Exception, such removal, cure, or endorsement shall be a condition precedent to the Close of Escrow.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Title Exceptions. Buyer acknowledges (a) Acquiror has secured and may continue to secure, at Acquiror's expense, during the Confirmation Period any additional title report or survey updates desired by Acquiror. Any title exceptions or issues disclosed by title or survey updates, disclosed by Meridian to Acquiror or otherwise identified by Acquiror, and which are not within the definition of Permitted Exceptions, shall be referred to as "Additional Exceptions." Acquiror, in any event, shall endeavor in good faith to cause the Title Company to delete or insure over any Additional Exceptions prior to Acquiror's expression of such matters in an Additional Exception Notice (as hereinafter defined).
(b) Acquiror shall have the right to deliver a notice to Meridian identifying any Additional Exceptions ("Additional Exception Notice") (i) on or prior to the expiration of the Confirmation Period, and (ii) on or prior to the Closing Date solely with respect to matters that Seller has delivered a (A) are set forth in an update to the Title Report from first received by Acquiror after the Title Insurer for each expiration of the Properties together with Confirmation Period which materially and adversely affect the Property or Acquiror's rights in the Property, or (B) arise as a survey result of each an act or omission of Meridian or any of its members, employees or agents and materially and adversely affect the Property or Acquiror's rights in the Property. Acquiror's failure to deliver any such notice in timely fashion shall be deemed an approval of the Properties applicable Additional Exceptions disclosed to Buyer. Buyer shall have until the last day of the Due Diligence Period to object to any exception to title appearing Acquiror in the Title Report or any title or survey which materially impairs marketability updates, or disclosed to Acquiror by Meridian in writing or otherwise discovered by Acquiror during the Confirmation Period. Except as set forth above, Acquiror shall have no right to deliver an Additional Exception Notice following the close of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections")Confirmation Period. If Buyer fails Acquiror delivers an Additional Exception Notice within such period, Acquiror and Meridian shall promptly attempt to object as prescribed in this section then agree upon the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure method or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek cost to cure or correct sameremove such Additional Exception or, then (x) Seller if not susceptible to cure or removal such Additional Exception shall be deemed to be an Adverse Matter and shall be resolved in accordance with the procedures set forth in SECTION 3.2. Notwithstanding the foregoing, Acquiror shall not have the right to adjourn the Closing for such Property(ies) for such period, not object to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) any Additional Exception if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated Company is willing to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether affirmatively insure or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of endorse over such notice by the facsimile unit receiving sameAdditional Exception at Meridian's expense.
Appears in 1 contract
Sources: Contribution, Exchange and Sale Agreement (CBL & Associates Properties Inc)
Title Exceptions. Buyer acknowledges that Seller has delivered provided access to current title insurance commitments (“Title Commitments”) and copies of all exception documents for each Site issued by or on behalf of First American Title Insurance Company in a form sufficient to comply with the requirements of Section 6.4(a). Surveys (“Surveys”) for certain Sites have been provided by the Seller on the same basis (the “Title Report from Commitments and Surveys shall be referred to together as the “Title Documents”). Purchaser shall have twenty-five (25) days following the Execution Date (the “Title Review Period”) within which to examine the Title Insurer Documents and give written notice to Seller, within the Title Review Period, specifying the title defects and/or objectionable exceptions (the “Title Defects”). Current taxes not delinquent, restrictions of record in favor of BP Products North America, Inc., its affiliates, successor or assigns as described on Schedule 1.4(c) (the “BP Restrictions”), Sale Contracts to the extent the Site is a Site Under Contract for each Sale, matters of title which do not unreasonably interfere with the continued operation of the Properties together Business at the Sites or any of the Assets, matters that would be disclosed by a survey (other than the Surveys) and any exception in the Title Documents that could be removed by providing the title company with a survey of each of (other than the Properties to Buyer. Buyer shall have until the last day of the Due Diligence Period to object to any exception to title appearing in the Title Report Surveys), monetary liens encumbering Leased Sites which were not created or survey which materially impairs marketability of title caused by delivering written notice to the Seller (for each Property an "Objection" Seller’s actions, and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without that Purchaser does not object to during the Title Review Period shall be “Permitted Liens” and shall not constitute Title Defects. Any mortgage lien or other financing document of record in favor of ▇▇▇▇▇ Fargo Bank, N.A., or any other lender, will be discharged at Closing and shall not be considered a reduction Title Defect (“Mortgage Debt Liens”). In the event that Purchaser notifies Seller within the Title Review Period of the Purchase Price.
(a) Upon receipt of such Objectionany Title Defects, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. fifteen (New York time) within ten (1015) days after following receipt of all Objections to the Property(iesPurchaser’s notice (“Title Defects Cure Period”) to seek attempt to cure or correct sameremove the Title Defects. Seller shall use commercially reasonable and good faith efforts to cure or remove all of the Title Defects but Seller shall not be required to initiate litigation to do so. If Seller fails to cure any of the Title Defects within the Title Defects Cure Period and Purchaser does not waive such uncured Title Defects, then (xi) each applicable Site shall be designated as a Rejected Site, (ii) Purchaser and Seller shall have the right proceed to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected remaining Sites (subject to as provided Section 1.4(a) above and Sections 1.8(c) and 5.2 below) as scheduled, (iii) the Purchase Price shall be reduced by the consideration attributable amount allocated to the affected Property(ies) as shown each such Rejected Site on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property1.3(a), according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (ziv) if a prorated portion of the ▇▇▇▇▇▇▇ Money applicable to each such exceptions Rejected Site (determined by reference to title can only Schedule 1.3(a)) shall be satisfied retained by the payment of moneyEscrow Closing Agent. In regard to each such Rejected Sites, Seller the parties shall be entitled deemed to apply a have agreed to defer the Closing of this Agreement with respect to each such Rejected Site until the Seller has cured the Title Defect applicable to such Rejected Site, provided that if any such Title Defect is not cured within twelve (12) months after Closing, this Agreement shall be terminated with respect to each such Rejected Site and the portion of the Purchase Price payable allocated to each such Rejected Site on such Closing Date for such Property(iesSchedule 1.3(a) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without constitute a reduction of the Purchase Price, or (y) terminate this Agreement by written notice Price and that portion of the ▇▇▇▇▇▇▇ Money applicable to Seller, in which case the Deposit each such Rejected Site shall be returned to Buyer and thereafter neither party shall have any obligation refunded to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving samePurchaser.
Appears in 1 contract
Title Exceptions. Buyer acknowledges that Seller has delivered a Title Report from the Title Insurer for each of the Properties together with a survey of each of the Properties to Buyer. Buyer shall have until the last day of the Due Diligence Period to object to any exception to (i) Any title appearing matters disclosed in the Title Report Commitments (or survey which any update thereto) that materially impairs marketability impair the current use, operation or value of title by delivering written notice a Property and are not Permitted Liens or Permitted Encumbrances are referred to collectively herein as “Material Title Exceptions”; provided, that without limiting the Seller (for each Property an "Objection" and collectively "Objections")generality of the foregoing, the items set forth on Section 3.04(c) of the Parent Disclosure Schedule shall not be deemed to be Material Title Exceptions. If Buyer fails to object Except as prescribed expressly provided in this section then Agreement, the Buyer acknowledges and agrees that such exception existence of any Material Title Exception shall not give rise to any right of Acquiror to exclude any assets required to be a Permitted Exception and Buyer shall be obligated purchased hereunder or to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Priceterminate this Agreement.
(aii) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within Within ten (10) Business Days following the receipt by Acquiror of the Title Commitments but in any event no later than thirty (30) days after the date hereof, Acquiror shall notify Parent in writing as to which Material Title Exceptions, if any, disclosed in a Title Commitment are not acceptable to Acquiror (the “Acquiror’s Title Notice”).
(A) If any Material Title Exception(s) identified in the Acquiror’s Title Notices collectively would reasonably be expected to have an effect on the value of the Transferred Equity Interests that relate to the applicable Property, as reasonably determined by Parent in good faith and notified to Acquiror in writing following Parent’s receipt of the Acquiror’s Title Notice (the “Title Exception Adjustment Amount”) that, individually or in the aggregate with all Objections to other Title Exception Adjustment Amounts, exceeds two percent (2%) of the Property(ies) Base Purchase Price, Parent may, but shall not be required to, use such measures as Parent may deem appropriate to seek to cure satisfy or correct sameeliminate any such Material Title Exceptions at Parent’s sole cost and expense, and Acquiror shall reasonably cooperate with Parent in connection therewith. If Parent does not cause any Material Title Exception identified in the Acquiror’s Title Notice to be eliminated as an exception to, or insured through an endorsement to, the title policy issued with respect to the applicable Property at or prior to the Closing (an “Uninsured Exception”), then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable corresponding Title Exception Adjustment Amount for such Uninsured Exception, but solely to the affected Property(iesextent that the Title Exception Adjustment Amounts corresponding to all Uninsured Exceptions, in the aggregate, exceed two percent (2%) as shown on Schedule 1; of the Base Purchase Price (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days amount of such notice; and (z) if excess, the “Excess Title Exception Amount”). In addition, Parent may at any time determine to exclude from the Transferred Assets any Property affected by a Material Title Exception identified in Acquiror’s Title Notice, in which event such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller Property shall be deemed to have elected NOT be an Excluded Property and the Purchase Price shall be adjusted with regard to seek to cure samesuch Property as provided in Section 2.06(c), and not, for the avoidance of doubt, as provided in Section 2.06(c)(iii).
(bB) If Seller elects not If, as of the date that is two (2) Business Days prior to cure all the Objections expected Closing Date, the aggregate Title Exception Adjustment Amounts with respect to title on Material Title Exception(s) identified in the Acquiror’s Title Notice exceeds ten percent (10%) of the Base Purchase Price (for the avoidance of doubt, excluding any Property encumbered by sameMaterial Title Exception that has been satisfied or eliminated and any Material Title Exceptions with respect to Excluded Properties), Buyer mayParent shall notify Acquiror of the same and Acquiror may elect, at its electionany time prior to the Closing, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written delivering notice to SellerParent of such election, in which case the Deposit whereupon this Agreement shall be returned terminated (and the other provisions of ARTICLE IX of this Agreement shall govern).
(C) Notwithstanding anything to Buyer and thereafter neither party the contrary contained herein, (1) Parent shall have any no obligation to incur, or to cause to be incurred, any expense or liability to satisfy or eliminate any Material Title Exception or other item or matter affecting title to the Properties, whether or not revealed by a Title Commitment, and (2) no failure by Parent or any Affiliate to satisfy or eliminate (or to cause any Third-Party GP or other third party to satisfy or eliminate) any Material Title Exception or other item or matter affecting title to the Properties shall constitute a breach of or default under this Agreement, provided, however, that Buyer nor shall provide any such written notice failure give rise to a liability of termination Parent hereunder or entitle Acquiror to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not any recourse to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether equitable relief or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date other remedy against Parent and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving sameits Affiliates.
Appears in 1 contract
Sources: Purchase Agreement (American International Group, Inc.)
Title Exceptions. Buyer acknowledges that Seller has delivered a Title Report from the Title Insurer for each of the Properties together with a survey of each of the Properties to Buyer. Buyer shall have until the last day of the Due Diligence Period to object to any exception to title appearing in the Title Report or survey which materially impairs marketability of title by delivering written notice to the Seller (for each Property an "Objection" and collectively "Objections"). If Buyer fails to object as prescribed in this section then the Buyer acknowledges and agrees that such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties Properties, subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the right, but not the obligation, to seek to eliminate, cure or correct such exceptions to title. If such exceptions to title in Seller's sole and exclusive judgment can be cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety (90) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek to cure such exceptions to title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all the Objections to title on any Property encumbered by same, Buyer may, at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase Price, or (y) terminate this Agreement by written notice to Seller, in which case the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation to the other under this Agreement, provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer shall be obligated to purchase all the Properties as provided herein, subject to the Permitted Exceptions as well as the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving same.
Appears in 1 contract
Sources: Purchase and Sale Agreement (U S Restaurant Properties Inc)
Title Exceptions. Buyer acknowledges that Seller has delivered a Title Report from If the Survey or the Title Insurer for each Commitment show exceptions to title or matters affecting the immovable property aspects of the Properties together with a survey of each of Premises which are objectionable to Tenant (other than those expressly consented to or waived by Tenant in writing and the Properties to Buyer. Buyer standard printed exceptions, which shall have until the last day of the Due Diligence Period to object to any exception to title appearing be modified in the Title Report or survey Policy as specified in Section 13.11(b)), Tenant shall, within fifteen (15) days after its receipt of the last of the Survey, the Title Commitment, and true and accurate copies of all documents attendant thereto, deliver to Landlord written objections thereto. Landlord shall have fifteen (15) days after the date of delivery by Tenant to Landlord of such objections to cure such defects and to present a revised Survey and a revised Title Commitment on the basis of which materially impairs marketability of title by delivering written notice the Closing may occur as provided herein, and the Closing shall be extended to the Seller such extent as may be necessary for Landlord to cure such defects (for each Property an "Objection" and collectively "Objections"but not more than fifteen (15) days unless Tenant agrees otherwise). If Buyer fails Landlord shall use commercially reasonable efforts and all due diligence to object as prescribed in this section then the Buyer acknowledges and agrees that cure such exception shall be a Permitted Exception and Buyer shall be obligated to proceed with the Closing and take title to the Properties subject to such exceptions to title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have the rightdefects, but shall not the obligation, be required to seek incur unreasonable costs to eliminate, cure or correct such exceptions to titledo so. If such exceptions to title in Seller's sole and exclusive judgment can be defects have not been cured or corrected and if Seller notifies Buyer not later than 5:00 p.m. (New York time) within ten (10) days after receipt of all Objections to the Property(ies) to seek to cure or correct same, then (x) Seller shall have the right to adjourn the Closing for such Property(ies) for such period, not to exceed ninety (90) days as shall, in Seller's discretion reasonably exercised, be required in order to cure such exceptions to title and Buyer shall be obligated to purchase on the Closing Date all Properties not objected to as provided above and the Purchase Price shall be reduced by the consideration attributable to the affected Property(ies) as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the correction of an Objection for each Property and Buyer shall purchase such Property, according to the terms hereof, on a mutually agreeable closing date within ten (10) days of such notice; and (z) if such exceptions to title can only be satisfied by the payment of money, Seller shall be entitled to apply a portion of the Purchase Price payable on such Closing Date for such Property(ies) in order to cure or correct same. If Seller, having elected to attempt to cure such exceptions to title, fails so to do within such ninety fifteen (9015) day period, Buyer shall have no further obligation to purchase and Seller shall have no further obligation to sell Tenant may (a) extend the Properties subject to such uncured exceptions to title unless Buyer forthwith elects to purchase such Properties subject to the unrectified matters with no reduction in the Purchase Price. If Seller fails to notify Buyer of its election to seek time for Landlord to cure such exceptions to titledefects, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to undertake the cure all of such defects on behalf and in the Objections to title on any Property encumbered by same, Buyer may, name of Landlord but at its election, (x) proceed with the Closing and take title to all of the Properties subject to such exceptions to title without a reduction of the Purchase PriceTenant's expense, or (yc) terminate this Agreement revoke its exercise of the Option. If requested by written notice Tenant, Landlord covenants and agrees to Sellerexecute a separate power of attorney in recordable form pursuant to which Landlord shall grant Tenant the power to act for Landlord as set forth above. All title exceptions at any time expressly consented to or waived in writing by Tenant, in which case together with the Deposit shall be returned to Buyer and thereafter neither party shall have any obligation standard printed exceptions to the other under this AgreementTitle Policy as modified as specified in Section 13.11(b), provided, however, that Buyer shall provide such written notice of termination to Seller no later than the close of business ten (10) days after receipt of Seller's notice electing not to cure title exceptions (constitute the "Title Notice Day"). If Buyer fails to provide such notice by 5:00 p.m. (New York time) on Permitted Encumbrances." Landlord agrees that neither the Title Notice Day, Buyer shall be obligated to purchase all SouthTrust Mortgage nor the Properties as provided herein, subject City Mortgage nor any other deed of trust lien or mortgage now or hereafter encumbering its fee title to the Premises shall constitute a Permitted Exceptions as well as Encumbrance, and Landlord will cause all such mortgages and deed of trust liens to be fully discharged and released at or before the title exceptions that Seller elected not to cure. To be effective, each notice delivered by Buyer to Seller hereunder must be sent by facsimile transmission to the FAX numbers set forth in Section 17 with an original hard copy thereof sent in accordance with the requirements of Section 17. Any dispute as to whether or not a notice regarding removal of a Property from the Agreement has been given in a timely manner shall be resolved by reference to the date and time stamped on the first page of the facsimile copy of such notice by the facsimile unit receiving sameClosing.
Appears in 1 contract
Sources: Lease Agreement (Six Flags Inc)