Title to the Property. (a) As a condition to the Closing, Lawyers Title Insurance Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined). (b) Purchaser shall order, at its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property. (c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above. (d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Sources: Contract of Sale (KBS Real Estate Investment Trust II, Inc.), Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Title to the Property. (a) As At Closing, Seller shall deliver to Buyer a condition special warranty deed in form and content reasonably satisfactory to Buyer’s counsel with transfer tax paid at Seller’s expense, conveying to Buyer good, indefeasible, fee simple, marketable and insurable title to the ClosingProperty, Lawyers said title to be insurable both as to fee and marketability at regular rates by the Title Insurance CorporationCompany, subject only to those matters specifically enumerated as title exceptions in the title insurance commitment obtained by Buyer that are not objected to by ▇▇▇▇▇ (by notice to Seller pursuant to Paragraph 2.4.3(c)) prior to the end of the Due Diligence Period (collectively the “Permitted Exceptions”). The title insurance policy or policies of the Title Company to be issued at Closing in connection with conveyance of the Property shall (i) provide full coverage against mechanics’ or materialmen’s liens, have full survey coverage; (ii) not take exception for parties in possession other than Buyer; (iii) not take exception for any taxes or liens other than future taxes which are not yet due and payable as of the Closing date, and (iv) shall contain such other special endorsements as Buyer’s counsel or its lender may reasonably require. Buyer shall deliver such affidavits and other documentation as may be reasonably necessary to ensure that the Title Company can issue title insurance policies providing the coverages described in (i) through (iv) in the previous sentence.
(b) The Property shall be conveyed by Seller to Buyer free and clear of all liens, encumbrances, claims, rights-of-way, easements, leases, restrictions, restrictive covenants and other matters affecting title except for the Permitted Exceptions (all of which, although permitted as exceptions to title if Closing occurs, shall be subject to the approval of Buyer, in its sole discretion, during the Due Diligence Period).
(c) If in the opinion of Buyer or ▇▇▇▇▇’s counsel, the Buyer’s title commitment or the Survey reveals anything that adversely affects the Property, or if Seller’s title to the Property fails to meet the foregoing requirements, or contains defects or exceptions not approved by Buyer, then Buyer may, by giving written notice to Seller prior to the expiration of the Due Diligence Period, either terminate this Agreement (as a Permitted Termination) or specify the title or survey defect(s). If ▇▇▇▇▇ specifies any such defect, ▇▇▇▇▇▇ agrees to notify ▇▇▇▇▇ in writing within five (5) business days after ▇▇▇▇▇▇▇▇▇’s notice of defect as to whether Seller will attempt to cure such defect(s). If Seller fails to cure such defect(s) prior to Closing, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) Buyer shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost and expense, within five (5) days following the date hereof, option (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to taking title to the Property appearing in “as is” and consummating the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery Closing of the Survey. SellerProperty, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify of extending the Closing for a reasonable period of time to enable Seller to cure such deficiency if Seller is attempting to cure same, (iii) of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title terminating this Agreement at any time on or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything prior to the contrary contained last date for Closing specified in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered thereof to Seller (in Seller, which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser Permitted Termination as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement)set forth herein, or (iiiv) accept title if the defect is a lien that can be cured by a monetary payment, of making such payment at Closing and reducing by a like amount the cash due to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) aboveSeller at Closing.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Agreement, Purchase Agreement
Title to the Property. (a) As a condition to the At Closing, Lawyers Title Insurance CorporationSeller shall convey to Purchaser by bargain and sale deed, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ with covenants against grantor’s acts (the “Title CompanyDeed”) shall have committed ), fee simple title to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price Property, insurable at regular rates by issuance of an ALTA owner’s a title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company company licensed to do business in the State of New Jersey, subject only to the following liens, easements, restrictions, conditions or other encumbrances (hereinafter referred to as the “Permitted Exceptions Encumbrances”):
(a) Such liens, easements, restrictions, conditions or other encumbrances as hereinafter defined).are listed in Exhibit C attached hereto and incorporated herein by this reference;
(b) Purchaser shall orderGeneral real estate taxes for the year of Closing which are not yet due and payable;
(c) Liens for municipal betterments which are assessed after the Effective Date and due after Closing;
(d) Zoning regulations and municipal building restrictions, at its sole cost and expenseall other laws, within five ordinances, regulations and restrictions of any duly constituted public authority enacted prior to the Closing Date provided the current use of the Property complies with same;
(5e) days following Such state of facts as an accurate survey or a physical inspection of the Property may disclose provided such facts do not render title unmarketable;
(f) Other covenants, easements and restrictions which do not materially and adversely affect the use of the Property as permitted by zoning and related ordinances and laws on the date hereof, as well as grants to utility and/or power companies, the rights of the public in sidewalks and abutting public rights-of-way, and easements given to the public for water course maintenance, slope rights or sight rights;
(ig) a commitment for an owner’s fee Standard exceptions set forth in the form of title insurance policy of the title insurance company selected by Purchaser; and
(h) Any other matter which would constitute a Title Objection (as defined in Section 3.2) that Purchaser waives, or policies with respect is deemed to have waived, pursuant to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Propertysubsections.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Hemispherx Biopharma Inc)
Title to the Property. Title to the Property shall be good and merchantable and shall be conveyed to Purchaser free and clear of any and all liens, claims and interests of any kind or nature whatsoever except the following:
(a) easements, rights-of-way, rights, duties, obligations, covenants, conditions, restrictions, limitations and agreements of record;
(b) current real estate taxes not delinquent;
(c) zoning ordinances and other governmental restrictions affecting the Property;
(d) all legal highways and public rights-of-way; and
(e) all matters that would be disclosed by an accurate survey or inspection of the Property. (together the “Permitted Exceptions”). As evidence of such title, Seller shall, at its sole cost and expense, obtain and deliver to Purchaser within thirty (30) days hereafter, a condition to commitment (the Closing, Lawyers “Commitment”) for an ALTA Form B owner’s policy of title insurance issued by Fidelity National Title Insurance CorporationCompany, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “SurveyInsurer”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise identified as exceptions in the Commitment, in which Commitment the Title Insurer shall agree to any defects or exceptions to title insure in an amount equal to the PropertyPurchase Price that upon delivery of a general warranty deed from Seller to Purchaser, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to shall have fee simple title to the Property appearing free and clear of all liens, encumbrances, claims, and interests except for Permitted Exceptions. All exceptions identified in Schedule B-2 of the Title Commitment other than the shall be deemed Permitted Exceptions unless Purchaser has given written notice to Seller within ten (such exception(s10) being herein called, collectively, days of receipt of the Commitment of those exceptions to which it objects (the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on . If the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which Unpermitted Exceptions are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed able to be a waiver cured by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed Seller within thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice thereof from Seller of its election not to remove such Unpermitted Purchaser, or thereafter waived by Purchaser as additional Permitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event shall terminate, the Deposit ▇▇▇▇▇▇▇ Money shall be promptly returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive obligation hereunder. Seller shall cause the final owner’s policy of title insurance to be delivered to Purchaser within thirty (30) days after Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser (as and in hereinafter defined). Any closing fee charged by the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount Title Insurer shall be held paid by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) abovePurchaser.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Sources: Purchase Agreement
Title to the Property. Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "C" attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) As a condition Purchaser has obtained from United Title Company (herein referred to as "Title Company") its commitment (hereinafter referred to as the "Title Commitment") to issue to Purchaser upon the recording of the Grant Deed conveying title to the ClosingLand and Improvements from Seller to Purchaser, Lawyers the payment of the Purchase Price, and the payment to the Title Insurance CorporationCompany of the policy premium therefor, ▇▇▇ ▇an ALTA owner's policy of title insurance, in the amount of the Purchase Price, insuring good and marketable fee simple record title to the Land and Improvements to be in Purchaser without exception (including any standard exception) except for the Permitted Exceptions, which contains the following endorsements to the extent the same are available in the State of California: comprehensive, zoning, covenants and restrictions, creditor's rights, survey, and access (provided, however that Purchaser shall be solely responsible for the portion of the premium charged by the Title Company in order to upgrade the title policy from a CLTA policy to an ALTA policy and the cost of any premiums charged by Title Company in connection with any and all such endorsements). The title policy issued pursuant to the Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable. The title policy issued pursuant to the Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. The title policy issued pursuant to the Title Commitment shall not contain an exception for the state of facts which would be disclosed by a survey of the Property or an "area and boundaries" exception, and in lieu thereof, the Title Commitment shall contain an exception only for the matters shown on the current as-built survey to be provided by Seller to Purchaser in accordance with Paragraph 9(g) hereof. The title policy issued pursuant to the Title Commitment shall also contain such other special endorsements as Purchaser shall reasonably require (the "Endorsements"). Purchaser has delivered to Seller a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent survey of the Property prepared by Dubron & Associates, dated September 24, 1999, last revised August 7, 2000, which shows that the Property contains 893 parking spaces. From time to time, Purchaser may request an update to the effective date of such Title Commitment or may update the date of the survey and give notice to Seller of all defects or objections appearing subsequent to the effective date of the Title Commitment (or previous update thereof) or survey, as the case may be (including any reduction of parking spaces). Seller agrees to cause the satisfaction and release of the monetary encumbrances on the Property in favor of Fremont Investment and Loan and South ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇Investment Corporation. All matters disclosed by an updated Title Commitment and/or survey and not objected to by Purchaser within five (5) days after receipt of such updates shall be deemed to be additional "Permitted Exceptions"; provided, ▇▇▇▇▇ ▇▇▇▇however, ▇▇▇ ▇▇▇▇▇▇▇encumbrances created by Seller in violation of this Agreement, ▇▇▇taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances shall in no event be deemed to be Permitted Exceptions. Seller shall have five (5) days after receipt of such notice of title defects or objections from Purchaser to advise Purchaser in writing which of such title defects or objections Seller does not intend to satisfy or cure; provided, however. Seller hereby agrees that Seller shall satisfy or cure prior to Closing any such defects or objections consisting of encumbrances created by Seller in violation of this Agreement, any taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances. In the event Seller fails to give such written advice to Purchaser within such five (5) day period, Seller shall be deemed to have agreed to satisfy or cure all such defects or objections set forth in Purchaser's notice. If Seller shall advise Purchaser in writing that Seller does not intend to satisfy or cure any specific encumbrances which Seller is not obligated to satisfy or cure under the second preceding sentence, Purchaser may elect either (a) to terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇ ▇▇▇▇▇Money shall be immediately refunded to Purchaser and this Agreement shall be of no further force or effect and Purchaser and Seller shall have no further rights, Title Officer: obligations or liabilities hereunder, except for the obligations hereunder which expressly survive termination, or (b) to accept title subject to such specific encumbrances, in which case such specific encumbrances shall become additional "Permitted Exceptions". Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. In the event Seller fails or refuses to cure any defects and objections which are required herein to be satisfied or cured by Seller prior to the Closing, then (i) Purchaser may terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇Money shall be immediately refunded to Purchaser, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) and this Agreement shall have committed to insure Purchaser as the fee owner be of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) no further force and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost effect and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have no further rights, obligations or liabilities hereunder, except for the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property obligations which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) abovetermination.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Title to the Property. Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant Deed and leasehold title shall be conveyed by the free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "C" attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) As a condition Purchaser has obtained from New Century Title Company (herein referred to as "Title Company") its commitment (hereinafter referred to as the "Title Commitment") to issue to Purchaser upon the recording of both the Grant Deed conveying title to the Land and Improvements from Seller to Purchaser and the assignment of the Ground Leases, the payment of the Purchase Price, and the payment to the Title Company of the policy premium therefor, an ALTA owner's policy of title insurance, in the amount of the Purchase Price, insuring good and marketable fee simple record title to the Land and Improvements and leasehold interest in the Ground Leases to be in Purchaser without exception (including any standard exception) except for the Permitted Exceptions, which contains the following endorsements to the extent the same are available in the State of California: comprehensive, zoning, covenants and restrictions, creditor's rights, survey, and access (provided, however that Purchaser shall be solely responsible for the portion of the premium charged by the Title Company in order to upgrade the title policy from a CLTA policy to an ALTA policy and the cost of any premiums charged by Title Company in connection with any and all such endorsements). The title policy issued pursuant to the Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable. The title policy issued pursuant to the Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. The title policy issued pursuant to the Title Commitment shall also contain such other special endorsements as Purchaser shall reasonably require (the "Endorsements"). Purchaser has delivered to Seller a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent surveys of the Property. From time to time, Purchaser may request an update to the effective date of such Title Commitment or may update the date of the survey and give notice to Seller of all defects or objections appearing subsequent to the effective date of the Title Commitment (or previous update thereof) or survey, as the case may be (including any reduction of parking spaces). Seller agrees to cause the satisfaction and release of the monetary encumbrances on the Property in favor of Istar Financial. All matters disclosed by an updated Title Commitment and/or survey and not objected to by Purchaser within five (5) days after receipt of such updates shall be deemed to be additional "Permitted Exceptions"; provided, however, encumbrances created by Seller in violation of this Agreement, taxes due and payable prior to Closing, Lawyers Title Insurance Corporationand any mortgages, ▇▇▇ ▇deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances shall in no event be deemed to be Permitted Exceptions. Seller shall have five (5) days after receipt of such notice of title defects or objections from Purchaser to advise Purchaser in writing which of such title defects or objections Seller does not intend to satisfy or cure; provided, however, Seller hereby agrees that Seller shall satisfy or cure prior to Closing any such defects or objections consisting of encumbrances created by Seller in violation of this Agreement, any taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances. In the event Seller fails to give such written advice to Purchaser within such five (5) day period, Seller shall be deemed to have agreed to satisfy or cure all such defects or objections set forth in Purchaser's notice. If Seller shall advise Purchaser in writing that Seller does not intend to satisfy or cure any specific encumbrances which Seller is not obligated to satisfy or cure under the second preceding sentence, Purchaser may elect either (a) to terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇Money shall be immediately refunded to Purchaser and this Agreement shall be of no further force or effect and Purchaser and Seller shall have no further rights, ▇▇▇▇▇ ▇▇▇▇obligations or liabilities hereunder, ▇▇▇ ▇▇▇▇▇▇▇except for the obligations hereunder which expressly survive termination, ▇▇▇or (b) to accept title subject to such specific encumbrances, in which case such specific encumbrances shall become additional "Permitted Exceptions". Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. In the event Seller fails or refuses to cure any defects and objections which are required herein to be satisfied or cured by Seller prior to the Closing, then (i) Purchaser may terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇ ▇▇▇▇▇Money shall be immediately refunded to Purchaser, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) and this Agreement shall have committed to insure Purchaser as the fee owner be of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) no further force and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost effect and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have no further rights, obligations or liabilities hereunder, except for the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property obligations which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) abovetermination.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Title to the Property. (a) As a condition to the Closing, Lawyers Title Insurance Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) shall have committed to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions objections only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Twenty Five Thousand Dollars ($50,00025,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 100,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Sources: Contract of Sale (KBS Real Estate Investment Trust II, Inc.)
Title to the Property. Good and marketable fee simple record title to the Land and Improvements shall be conveyed by Seller to Purchaser by Grant Deed, free and clear of all liens, easements, restrictions, and encumbrances whatsoever, excepting only the matters set forth on Exhibit "C" attached hereto (hereinafter referred to as the "Permitted Exceptions").
(a) As a condition Purchaser has obtained from United Title Company (herein referred to as "Title Company") its commitment (hereinafter referred to as the "Title Commitment") to issue to Purchaser upon the recording of the Grant Deed conveying title to the ClosingLand and Improvements from Seller to Purchaser, Lawyers the payment of the Purchase Price, and the payment to the Title Insurance CorporationCompany of the policy premium therefor, ▇▇▇ ▇an ALTA owner's policy of title insurance, in the amount of the Purchase Price, insuring good and marketable fee simple record title to the Land and Improvements to be in Purchaser without exception (including any standard exception) except for the Permitted Exceptions, which contains the following endorsements to the extent the same are available in the State of California: comprehensive, zoning, covenants and restrictions, creditor's rights, survey, and access (provided, however that Purchaser shall be solely responsible for the portion of the premium charged by the Title Company in order to upgrade the title policy from a CLTA policy to an ALTA policy and the cost of any premiums charged by Title Company in connection with any and all such endorsements). The title policy issued pursuant to the Title Commitment shall not contain any exception for mechanic's or materialmen's liens or any exception for unpaid taxes other than an exception for taxes for 2004 and subsequent years not yet due or payable. The title policy issued pursuant to the Title Commitment shall not contain any exception for rights of parties in possession other than an exception for the rights of the Tenants (as hereinafter defined), as tenants only, under the Leases. The title policy issued pursuant to the Title Commitment shall not contain an exception for the state of facts which would be disclosed by a survey of the Property or an "area and boundaries" exception, and in lieu thereof, the Title Commitment shall contain an exception only for the matters shown on the current as-built survey to be provided by Seller to Purchaser in accordance with Paragraph 9(g) hereof. The title policy issued pursuant to the Title Commitment shall also contain such other special endorsements as Purchaser shall reasonably require (the "Endorsements"). Purchaser has delivered to Seller a true and complete copy of the Title Commitment.
(b) Purchaser has also received Seller's most recent survey of the Property prepared by Dubron & Associates, dated September 24, 1999, last revised August 7, 2000, which shows that the Property contains 893 parking spaces. From time to time, Purchaser may request an update to the effective date of such Title Commitment or may update the date of the survey and give notice to Seller of all defects or objections appearing subsequent to the effective date of the Title Commitment (or previous update thereof) or survey, as the case may be (including any reduction of parking spaces). Seller agrees to cause the satisfaction and release of the monetary encumbrances on the Property in favor of Fremont Investment and Loan and South ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇Investment Corporation. All matters disclosed by an updated Title Commitment and/or survey and not objected to by Purchaser within five (5) days after receipt of such updates shall be deemed to be additional "Permitted Exceptions"; provided, ▇▇▇▇▇ ▇▇▇▇however, ▇▇▇ ▇▇▇▇▇▇▇encumbrances created by Seller in violation of this Agreement, ▇▇▇taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances shall in no event be deemed to be Permitted Exceptions. Seller shall have five (5) days after receipt of such notice of title defects or objections from Purchaser to advise Purchaser in writing which of such title defects or objections Seller does not intend to satisfy or cure; provided, however, Seller hereby agrees that Seller shall satisfy or cure prior to Closing any such defects or objections consisting of encumbrances created by Seller in violation of this Agreement, any taxes due and payable prior to Closing, and any mortgages, deeds of trust, mechanic's or materialmen's liens and other such monetary encumbrances. In the event Seller fails to give such written advice to Purchaser within such five (5) day period, Seller shall be deemed to have agreed to satisfy or cure all such defects or objections set forth in Purchaser's notice. If Seller shall advise Purchaser in writing that Seller does not intend to satisfy or cure any specific encumbrances which Seller is not obligated to satisfy or cure under the second preceding sentence, Purchaser may elect either (a) to terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇ ▇▇▇▇▇Money shall be immediately refunded to Purchaser and this Agreement shall be of no further force or effect and Purchaser and Seller shall have no further rights, Title Officer: obligations or liabilities hereunder, except for the obligations hereunder which expressly survive termination, or (b) to accept title subject to such specific encumbrances, in which case such specific encumbrances shall become additional "Permitted Exceptions". Seller shall have until Closing to satisfy or cure all such defects and objections which Seller agreed (or is deemed to have agreed) to satisfy or cure as provided above. In the event Seller fails or refuses to cure any defects and objections which are required herein to be satisfied or cured by Seller prior to the Closing, then (i) Purchaser may terminate this Agreement by written notice to Seller, in which event the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇Money shall be immediately refunded to Purchaser, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (the “Title Company”) and this Agreement shall have committed to insure Purchaser as the fee owner be of the Property in the amount of the Purchase Price by issuance of an ALTA owner’s title insurance policy (the “Owner’s Policy”) no further force and in the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost effect and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have no further rights, obligations or liabilities hereunder, except for the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property obligations which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) abovetermination.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Title to the Property. (a) As a condition to At the Closing, Lawyers Title Insurance Corporationall the Owned Real Property and its appurtenances shall be free and clear of all Liens, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇Claims, ▇▇▇▇▇ ▇▇▇▇rights-of-way and leases, ▇▇▇ ▇▇▇▇▇▇▇other than the Permitted Encumbrances and the following:
(i) rights-of-way of streets, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇so long as they do not prevent, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (interfere or adversely affect the “Title Company”) shall have committed to insure Purchaser as the fee owner use of the Property in property for the amount same purposes as used and operated as of the Purchase Price Closing Date;
(ii) public utility easements, easements with respect to gas or oil transmission lines and rights-of-way and oil and gas leases, each in customary form, so long as they do not prevent, interfere or adversely affect the use of the property for the same purposes as used and operated as of the Closing Date;
(iii) ad valorem or real property taxes not yet due and payable; and
(iv) zoning and building laws and ordinances of the city, town, county, village, state or municipality in which the Owned Real Property lies which are not violated by issuance existing structures and which are not violated by or do not prevent, interfere with or adversely affect the continued use and operation of an ALTA owner’s title insurance policy (the “Owner’s Policy”) Owned Real Property for the same purposes as used and in operated as of the standard form issued by the Title Company in the State of New Jersey, subject only to the Permitted Exceptions (as hereinafter defined)Closing Date.
(b) Purchaser shall orderPrior to the Closing, at its sole cost if, in the opinion of Buyer's counsel, after Seller's and expenseMacedon's opportunity to cure provided in Section 5.6, within five (5) days following the date hereof, (i) a commitment for an owner’s fee Buyer is not able to obtain title insurance policy or policies acceptable to Buyer (including any endorsements required by Buyer from the Title Company with respect to the Owned Real Property) (collectively, the "Title Policies"), the cost of which shall be paid by Buyer, Buyer shall have the option of (i) accepting the condition of the Owned Real Property (title "AS IS", and consummating the “Title Commitment”) from the Title Company and Closing without waiving any rights of Buyer under Article 11, or (ii) a survey of terminating this Agreement pursuant to Section 8.1(b)(iv) without liability by Buyer to Seller, Macedon or the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to Company. Notwithstanding any defects or exceptions to title other provision contained herein to the Propertycontrary, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, if any exception to title, survey or zoning matters title disclosed in any Title Commitment which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception includingmay include, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted a Disapproved Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)than a Permitted Encumbrance), Seller shall notify Purchaser that it elects not to remove the samecan be cured by a monetary payment, in which event Purchaser Buyer shall have the right, as its sole remedy for such election in addition to any other rights of adjustment hereunder, of reducing by a like amount the Purchase Price due to Seller at the Closing, provided that, without the prior consent of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same Buyer shall not be deemed to be Unpermitted Exceptionsmake any such monetary payment in excess of $10,000.
Appears in 1 contract
Sources: Stock Purchase Agreement (Iesi Corp)
Title to the Property. At the Closing, Owner shall deliver to Highwoods a special warranty deed in form and content satisfactory to Highwoods' counsel and customarily used in South Carolina for transactions of the type described herein with recording fees paid at Highwoods' expense (and documentary stamps paid by Owner), conveying to Highwoods a good, indefeasible, fee simple and insurable title to the Land, its appurtenances and Improvements, said title to be insurable both as to fee at regular rates by a title insurance company of Highwoods' choice (the "Title Company"), subject only to those matters specifically enumerated in (a) As a condition to through (f) of this Section 6.01 ("Permitted Exceptions"); provided, any real property shown on the Closing, Lawyers Title Insurance Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ (Surveys within the “Title Company”) shall have committed to insure Purchaser as the fee owner boundary lines of the Property Land not described in the amount deeds of conveyance to Owner shall be conveyed by Owner to Highwoods by quitclaim deed rather than the special warranty deed descried above. Within fifteen (15) days of the Purchase Price by issuance of an ALTA owner’s date hereof, Highwoods shall obtain a current title insurance policy (commitment for the “Owner’s Policy”) and in the standard form Land issued by the Title Company in (which shall be selected by Highwoods) showing the State condition of New Jersey, subject only to title of the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall order, at its sole cost and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property Land (the “"Title Commitment”) from the Title Company and (ii) a survey Report"). If Highwoods disapproves of the Property prepared by a surveyor registered in the State any matter of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing contained in the Title Commitment other Report, Highwoods may then elect to provide, no later than the Permitted Exceptions fifth (such exception(s5th) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in business day after its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date receipt of the Title CommitmentReport, and (ii) Purchaser shall notify Seller written notice of Highwoods' disapproval of the same within five to Owner (5) days following the date the exception is first those disapproved title matters as so identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein Highwoods are hereafter called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted "Disapproved Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions."
Appears in 1 contract
Sources: Contract of Sale and Purchase (Yager Kuester Public Fund 1986 Limited Partnership)
Title to the Property. (a) As a condition to At the Closing, Lawyers title to the Land shall be insurable both as to fee and marketability at regular rates by Chicago Title Insurance Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ Company (the “Title Company”), subject only to those matters enumerated in Section 4(b)(i)-(vi) shall have committed below (“Permitted Exceptions”). Prior to insure Purchaser as the fee owner end of the Property in the amount of the Purchase Price by issuance of an ALTA ownerReview Period, G-T Gateway shall procure from HPI Title Agency, LLC at G-T Gateway’s cost, a current title commitment for title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company in showing the State condition of New Jersey, subject only title to the Permitted Exceptions (as hereinafter defined).
(b) Purchaser shall orderLand, at its sole cost appurtenances and expense, within five (5) days following the date hereof, (i) a commitment for an owner’s fee title insurance policy or policies with respect to the Property Improvements (the “Title CommitmentReport”) from ). If, prior to the Title Company and (ii) a survey end of the Property prepared by a surveyor registered in the State Review Period, G-T Gateway disapproves of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements any matter of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing contained in the Title Commitment other than Report, G-T Gateway may then elect to provide written notice of G-T Gateway’s disapproval of the Permitted Exceptions same to WSI (such exception(s) being herein called, collectively, those disapproved title matters as so identified by G-T Gateway are hereinafter called the “Unpermitted Disapproved Exceptions”). WSI agrees to commit its commercially reasonable efforts to remove any Disapproved Exception, provided the cost thereof does not exceed Twenty-Five Thousand and No/100 Dollars ($25,000). However, in the event that as provided in Section 3(a) above, G-T Gateway proceeds to and consummates the Closing subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters)a Disapproved Exception, such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser Disapproved Exception shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall then be deemed to be a waiver by Purchaser of its right to raise Permitted Exception. Any expenses incurred in obtaining such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty insurance commitment (30) days in the aggregate (such period of time being herein called the “Extension Period”), provided that Seller shall notify Purchaser, in writing, within ten (10) days after receipt by Seller of the Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, those incurred by an attorney in conducting the necessary title search) shall be borne by G-T Gateway. The title insurance premium for the title insurance policy issued by the Title Company pursuant to bring the title commitment (the “Title Policy”) shall be borne by G-T Gateway. The Title Policy shall provide full coverage against mechanics’ or materialmen’s liens, shall commit full survey coverage (if G-T Gateway procures a Survey of the Land) and such other coverages and endorsements as shall be reasonably required by G-T Gateway. If G-T Gateway requests any endorsements to the Title Policy, G-T Gateway will be responsible for the cost attributable thereto. G-T Gateway may, at or prior to Closing, notify WSI in writing (the “Gap Notice”) of any objections to title raised by G-T Gateway’s Counsel or the Title Company between the issuance of the Title Report and the Closing, which did not exist as of the date of the issuance of the Title Report (“New Encumbrances”). If G-T Gateway sends a Gap Notice to WSI, but the New Encumbrance is the result of some act that is beyond the control of WSI, then G-T Gateway and WSI shall have the same rights and obligations with respect to such notice as apply to a Disapproved Exception under Sections 4(a) and 4(b) hereof. However, in the event the New Encumbrance results from any action or proceedingomission of WSI (with the exception of New Encumbrances which can be cured by a monetary payment which G-T Gateway has, and shall have, the absolute right of making such payment and reducing the Purchase Price by a like amount), G-T Gateway shall be entitled to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception againstterminate this Agreement, or collection receive a refund of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by SellerBinder Deposit, and (y) use commercially reasonable efforts reimbursement from WSI of the costs, fees and expenses incurred by G-T Gateway related to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount this Agreement and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Highwoods Properties Inc)
Title to the Property. (a) As a condition to the At Closing, Lawyers Title Insurance CorporationSeller shall convey to Purchaser by bargain and sale deed, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Title Officer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telephone (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier (▇▇▇) ▇▇▇-▇▇▇▇ with covenants against grantor’s acts (the “Title CompanyDeed”) shall have committed ), fee simple title to insure Purchaser as the fee owner of the Property in the amount of the Purchase Price Property, insurable at regular rates by issuance of an ALTA owner’s a title insurance policy (the “Owner’s Policy”) and in the standard form issued by the Title Company company licensed to do business in the State of New Jersey, subject only to the following liens, easements, restrictions, conditions or other encumbrances (hereinafter referred to as the “Permitted Exceptions Encumbrances”):
(a) Such liens, easements, restrictions, conditions or other encumbrances as hereinafter defined).are listed in Exhibit C attached hereto and incorporated herein by this reference;
(b) Purchaser shall orderGeneral real estate taxes for the year of Closing which are not yet due and payable (subject to adjustment provided in Section 4.1);
(c) Liens for municipal betterments which are assessed after the Effective Date;
(d) Zoning regulations and municipal building restrictions, at its sole cost and expenseall other laws, within five ordinances, regulations and restrictions of any duly constituted public authority enacted prior to the Closing Date provided the current use of the Property complies with same;
(5e) days following Such state of facts as an accurate survey or a physical inspection of the Property may disclose provided such facts do not render title unmarketable;
(f) Other covenants, easements and restrictions which do not materially and adversely affect the use of the Property as permitted by zoning and related ordinances and laws on the date hereof, as well as grants to utility and/or power companies, the rights of the public in sidewalks and abutting public rights-of-way, and easements given to the public for water course maintenance, slope rights or sight rights;
(ig) a commitment for an owner’s fee Standard exceptions set forth in the form of title insurance policy or policies with respect of the title insurance company selected by Purchaser; and
(h) Any other matter which would constitute a Title Objection (as defined in Section 3.2) that Purchaser does not waive pursuant to the Property (the “Title Commitment”) from the Title Company and (ii) a survey of the Property prepared by a surveyor registered in the State of New Jersey, certified by said surveyor to Purchaser and Seller as having been prepared in accordance with the minimum detail requirements of the ALTA land survey requirements (the “Survey”), and shall cause the Title Commitment, together with true, legible and complete copies of all instruments giving rise to any defects or exceptions to title to the Property, and the Survey to be delivered to Seller’s attorneys concurrently with the delivery thereof to Purchaser or Purchaser’s attorneys. Attached hereto as Exhibit E is a notice (the “Title Objection Notice”) identifying those exceptions(s) to title to the Property appearing in the Title Commitment other than the Permitted Exceptions (such exception(s) being herein called, collectively, the “Unpermitted Exceptions”), subject to which Purchaser is unwilling to accept title, including (y) those matters reflected on the Survey that Purchaser has disapproved of, and (z) zoning matters that were only ascertainable upon delivery of the Survey. Seller, in its sole and absolute discretion, may undertake to eliminate the same subject to the terms and conditions of this Section 4.1. Purchaser hereby waives any right Purchaser may have to advance, as objections to title or as grounds for Purchaser’s refusal to close this transaction, any exception to title, survey or zoning matters which are not identified in the Title Objection Notice unless (i) with respect to title exceptions only (as opposed to survey or zoning matters), such exception was first raised by the Title Company subsequent to the date of the Title Commitment, and (ii) Purchaser shall notify Seller of the same within five (5) days following the date the exception is first identified by the Title Company (failure to so notify Seller shall be deemed to be a waiver by Purchaser of its right to raise such Unpermitted Exception as an objection to title or as a ground for Purchaser’s refusal to close the transaction contemplated by this Agreement). Notwithstanding anything to the contrary contained in this Agreement, Seller, in its sole discretion, shall have the right to adjourn the Closing for a period not to exceed thirty (30) days in the aggregate (such period of time being herein called the “Extension Period”)subsections, provided that Seller shall notify Purchaser, a nationally recognized title insurance company authorized to do business in writing, within ten New Jersey agrees (10either at normal rates to be paid by Purchaser or at a special rate to be paid by Seller) days after receipt by Seller that it will insure title free of the such Title Objection Notice, whether or not it will endeavor to eliminate such Unpermitted Exceptions. Notwithstanding with affirmative insurance against the foregoing or anything to the contrary set forth in this Agreement, Seller shall not under any circumstance be required or obligated to cause the cure or removal of any Unpermitted Exception including, without limitation, to bring any action or proceeding, to make any payments or otherwise to incur any expense in order to eliminate any Unpermitted Exception or to arrange for title insurance insuring against enforcement of such Unpermitted Exception against, or collection of the same out of, the Property, notwithstanding that Seller may have attempted to do so, or may have adjourned the Scheduled Closing Date for such purpose; provided, however, Seller shall (x) satisfy any mortgage or deed of trust placed on the Property by Seller or expressly assumed by Seller, and (y) use commercially reasonable efforts to cause the removal (by bonding or otherwise) of other monetary liens encumbering the Property which are of an ascertainable amount and do not exceed Fifty Thousand Dollars ($50,000) in the aggregate and are not the responsibility of any tenant of Title Objection against the Property.
(c) In the event that Seller is unable, or elects not, to eliminate all Unpermitted Exceptions in accordance with the provisions of this Section 4.1.1, or to arrange for title insurance, without special premium to Purchaser, insuring against enforcement of such Unpermitted Exceptions against, or collection of the same out of, the Property, and to convey title to the Property in accordance with the terms of this Agreement on or before the Closing Date (whether or not the Closing is adjourned as provided in Section 4.1.1(b)), Seller shall notify Purchaser that it elects not to remove the same, in which event Purchaser shall have the right, as its sole remedy for such election of Seller, by delivery of written notice to Seller within three (3) Business Days following receipt of notice from Seller of its election not to remove such Unpermitted Exceptions, to either (i) terminate this Agreement by written notice delivered to Seller (in which event the Deposit shall be returned to Purchaser and no party hereto shall have any further obligations in connection herewith except under those provisions that expressly survive the Closing or a termination of this Agreement; provided, however, that if Seller has notified Purchaser as and in the manner provided by Section 3.1 of this Agreement, Escrowee shall release the Deposit to Purchaser, less the Pre-Closing Breach Amount, which Pre-Closing Breach Amount shall be held by Escrowee until the same is to be released as and in the manner provided by Section 3.1 of this Agreement), or (ii) accept title to the Property subject to such Unpermitted Exception(s) without a reduction in, abatement of, or credit against, the Purchase Price. The failure of Purchaser to deliver timely any written notice of election under this Section 4.1.1(c) shall be conclusively deemed to be an election under clause (ii) above.
(d) If, on the Closing Date, there are any liens or encumbrances that Seller is obligated to discharge under this Agreement, Seller shall have the right (but not the obligation), as to liens and/or encumbrances of an ascertainable amount not to exceed $250,000 in the aggregate, to either (i) arrange, at Seller’s cost and expense, for affirmative title insurance or special endorsements reasonably acceptable to Purchaser insuring against enforcement of such liens or encumbrances against, or collection of the same out of, the Property, or (ii) use any portion of the Purchase Price to pay and discharge the same, either by way of payment or by alternative manner reasonably satisfactory to the Title Company, and the same shall not be deemed to be Unpermitted Exceptions.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hemispherx Biopharma Inc)