Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions. (ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions. (iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following: (A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or (B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances. (iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior Prior to the expiration of the Inspection Period Period, Buyer shall notify Seller in writing (“Buyer’s Notice”) of any title matters disclosed in the Title Commitment or Survey to which Buyer objects (the “Initial Title Objection DeadlineCommitment Defects”). Notwithstanding Any matter disclosed in the foregoing, if an update to a Title Commitment for or Survey and not objected to by Buyer within such period or subsequently waived by Buyer in writing shall be deemed a permitted exception (“Permitted Exception”). If Buyer learns, through continuation reports, updates to the Title Commitment or other written evidence, of any Parcel received additional title defect(s) not disclosed in the Title Commitment or Survey (the “Additional Title Defects”, and together with the Title Commitment Defects, the “Title Defects”), Buyer shall have the right to object to such Additional Title Defect(s) by giving written notice thereof to Seller on or before the earlier of (x) five (5) business days after the expiration of date Buyer receives such continuation report, updated Title Commitment or other written evidence disclosing such Additional Title Defects or (y) the Inspection Period and Closing Date. Seller shall be obligated, on or prior to the Closing Date references a new exception Closing, to title that (A) is not a Permitted Encumbrancepay, (B) was not previously reflected discharge or referenced on remove of record or cause to be paid, discharged or removed of record or insured over by the Title CommitmentCompany in a manner satisfactory to Buyer in its sole discretion, any existing survey at Seller’s sole cost and expense, all of the following items: (a) Voluntary Liens (as hereinafter defined), and (b) other liens encumbering the Project (including judgments and federal, state and municipal tax liens) which (i) are in liquidated amounts and which may be satisfied solely by the payment of money (including the preparation or an updated survey delivered or made available filing of appropriate satisfaction instruments in connection therewith), excluding, however, mechanic liens which are a tenant’s responsibility to remove pursuant to the terms of the applicable Leases and which are disclosed to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (Dii) has a material adverse effect on do not exceed in the Propertyaggregate $1,000,000.00 (the “Cure Amount”). Except as set forth in this Section 4.3, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers Seller shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; Defects. The term “Voluntary Liens” as used herein shall mean all monetary liens, including mortgages which Seller has suffered or (2) deliver allowed to Westcor Land Title Insurance Companybe placed on the Project, Inc.other than Permitted Exceptions, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇excluding, ▇▇▇. ▇▇▇however, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (mechanics liens which are a tenant’s responsibility to remove pursuant to the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither terms of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers applicable Leases and which are disclosed to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period. If Seller, then after having used commercially reasonable good faith efforts (which shall include curing and removing of record all Voluntary Liens and expending money to cure all other Title Defects up to the Cure Amount), is unable to cure a Title Defect on or prior to Closing, Buyer may, at its discretion (i) elect to adjourn the Closing for a period not to exceed ten (10) business days to allow Seller to cure such Title Objections Defect, and in such event Seller shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects continue to use commercially reasonable good faith efforts to cure a Title Objection pursuant effect such cure, (ii) elect to Section 4(c)(iii)(A)(1), and such Seller is unable to cure waive in writing such Title Objection on Defect in which case it shall be deemed a Permitted Exception or before (iii) terminate this Agreement in which event Buyer shall be entitled to receive the date originally scheduled for Closing, then Sellers shall have Escrow Deposit. If an act or omission of Seller that is not reflected in the right to defer Title Commitment or any continuation thereof or in the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) Permitted Exceptions as of the Closing Date pursuant has an effect on title to this clause shall the Real Property and if Seller does not cure or cause the Closing Date Title Company to extend more than fifteen (15) days beyond the Closing Outside Date unless insure over such item in a manner satisfactory to Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B)its sole discretion, then Buyer shall have may either waive such matter or terminate this Agreement and receive the election set forth Escrow Deposit and pursue its remedies under Section 10.2. Notwithstanding anything in this Section 4(d)4.3 to the contrary, Buyer may, in its sole discretion, at any time accept such title as Seller can convey, without reduction of the Purchase Price or any credit or allowance on account thereof.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parkway Properties Inc)
Title Defects. (i) Buyer Ten (10) days after receipt by Purchaser of an original Title Commitment or any survey or Leasehold Title Commitment obtained pursuant to Section 2.04(b) hereof, Purchaser shall give Seller and the Title Company written notice of any defect(s) disclosed in such Title Commitment, survey or Leasehold Title Commitment that: (w) is (are) not included in the exceptions specifically identified on the Title Commitment or Leasehold Title Commitment; (x) is(are) not included in clauses (a)-(d) of the definition of Permitted Exceptions related to the applicable Owned Real Estate or Leased Real Estate; (y) that materially adversely affect(s) the business of the Branch situated upon such Owned Real Estate or Leased Real Estate; and (z) which Purchaser does not approve. Failure of Purchaser to provide such notice on a timely basis shall constitute a waiver by Purchaser of any matter(s) disclosed in such Title Commitment, survey or Leasehold Title Commitment and thereupon such matter(s) shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection included in Buyer’s reasonable discretion clause (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of businessb) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration definition of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised Exceptions set forth in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptionsthis Agreement.
(ii) Upon Buyer’s failure If the notice referred to in (i) above is timely deliver an Initial given by Purchaser, Seller shall, within ten (10) days of such notice, notify Purchaser and the Title Objection Notice Company as to whether Seller shall cure or a Subsequent remove any defect(s). Following Seller's notice to Purchaser and the Title Objection Notice Company that Seller elects not to cure any defect(s), Purchaser must elect, within five (5) days, as its sole remedy hereunder with respect to any encumbrance or other title exception or matter in accordance with clause (i) abovesuch defect(s), all liens, encumbrances to terminate this Agreement as to the Assets and other title exceptions or matters Liabilities attributable to the Branch situated upon the affected Owned Real Estate and/or Leased Real Estate. Purchaser's failure to make such an election shall thereafter be deemed to be a waiver of such defect(s) and such defect(s) shall be included in the Permitted Encumbrances, except for Exceptions and shown as Permitted Exceptions in the Mandatory Cure Exceptionsdeed and the title policy relating to such Owned Real Estate or Leasehold Estate.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers Seller shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as cause the Title Company requires to insure Buyer against any loss arising from such update the Title Objection (in either of which eventsCommitments and Purchaser may, such matter shall be a “Seller Cure Matter”)at its sole cost and expense, or
(B) cause the Title Company to elect neither update Leasehold Title Commitments, as of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice business day prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event that the updated Title Commitment or Leasehold Title Commitment as to any Seller is unable to cure Owned Real Estate or Leasehold Estate discloses any defect(s) not included in the original Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) Commitment, survey or Section 4(c)(iii)(A)(2) on or before Leasehold Title Commitment, the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election procedure set forth in Section 4(d)(ii) above shall apply.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Park National Corp /Oh/)
Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not No later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Effective Date of this Agreement, Purchaser shall furnish to Seller a copy of an ALTA title insurance commitment for an owner’s title insurance policy (the “Title Commitment”) and Purchaser’s survey (the “Updated Survey”), if any, together with a statement specifying its objections to any matters disclosed by the Title Commitment or Updated Survey other than the Permitted Exceptions (“Purchaser’s Statement”). Seller shall notify Purchaser within three (3) business days after receipt of Purchaser’s Statement whether Seller will cure (and in what manner Seller will cure) the defects set forth in Purchaser’s Statement, provided, however, that Seller shall agree to remove each financial encumbrance such as a mortgage, judgment, lien for delinquent real estate taxes, attachment, mechanic’s lien, or any other monetary lien or encumbrance of a definite or 141250808.5 ascertainable amount which may be removed by the payment of money (not to exceed ▇▇▇▇▇▇’s net proceeds from the Closing Dateof the HQ Parcel pursuant to the HQ AOS) which is revealed by the Title Commitment (a “Mandatory Discharge Item”) or take such other action that shall allow Title Insurer to omit the same as exceptions. If Seller fails to respond to Purchaser’s Statement within said three (3) business day period, Seller will be deemed to have elected not to remove the defects set forth in order to provide Purchaser’s Statement (other than the applicable Mandatory Discharge Items). If Seller an opportunity does not timely agree to cure any such Title Objection or defects (other than the Mandatory Discharge Items), Purchaser shall have the right, by written notice given to proceed under Section 4(c)(iii)(A)(2Seller and Escrow Agent within ten (10) (provided that days after the extension(s) first to occur of Purchaser’s receipt of Seller’s response to Purchaser’s Statement and the expiration of the Closing Date aforementioned three (3) business day response period, either to (i) waive the defects and close title without abatement or reduction of the Price (and each such waived defect shall be deemed a Permitted Exception), or (ii) terminate this Agreement. Upon such termination, all rights and obligations of the respective parties hereunder shall be null and void, except for those rights and obligations that expressly survive the termination of this Agreement. If Purchaser fails to select either option, then Purchaser shall be deemed to have elected option (i). Purchaser hereby acknowledges and agrees that TIME IS OF THE ESSENCE with respect to the timely delivery of Purchaser’s Statement and any termination notice pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)2.3.
Appears in 1 contract
Title Defects. (i) Except as otherwise expressly provided in this Section 4, Seller shall have no obligation to cause any exceptions or encumbrances which are not Permitted Encumbrances to be omitted or removed from any title insurance policies to be issued in connection with the sale of the Property.
(ii) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers Seller a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an a “Initial Title Objection Notice”) by not later than ten five (105) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer days prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers Seller shall have no obligation to remove or cure any alleged defectsdefect, objections objection or survey matters matter raised in an Initial Title Objection Notice or a Subsequent any Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure ExceptionsMonetary Liens and Voluntary Liens (defined below).
(iiiii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) within the timeframe set forth above, all liens, encumbrances and such encumbrance or other title exceptions exception or matters matter shall thereafter be deemed a Permitted EncumbrancesEncumbrance, except for the Mandatory Cure ExceptionsMonetary Liens and Voluntary Liens.
(iiiiv) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers Seller as above provided, Sellers Seller shall have the right, at their its sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within ten (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (210) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, ) to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Companyprovide OS National LLC, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Phone: ▇▇▇-▇▇▇-▇▇▇▇, ▇▇Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, events such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A4(c)(iv)(A). Failure by Sellers Seller to deliver a Title Objection Response Notice within the applicable time period set forth notice described in clause (iiiA) above within said ten (10) Business-Day period shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period), then such Title Objections Buyer shall be deemed Permitted Encumbranceshave the election set forth in Section 4(e).
(ivv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(14(c)(iv)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers Seller shall have the right to defer the Closing from time to time (but in no event for more than thirty twenty (3020) days after the then-originally scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(24(c)(iv)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause (A) shall not cause the Closing Date to extend more than fifteen (15) days beyond the Outside Closing Outside Date unless Buyer consents in writingDate). In the event any Seller is unable to cure any Title Objection to which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(14(c)(iv)(A)(1) or Section 4(c)(iii)(A)(24(c)(iv)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d4(e).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Title Defects. (i) Buyer Purchaser shall conduct, at its own cost and expense, such title search of the Property as it deems necessary to determine the existence of any title defects. No matter shall be deemed to have waived its right to object to any encumbrance or other construed as a defect in title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any so long as such matter (an “Initial is not construed as such under the Standards of Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”)Connecticut Bar Association, whenever applicable. Notwithstanding the foregoing, if an update Notice of any defect in title shall be given to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but Owner not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Effective Date. If Purchaser timely notifies Owner of a defect in title to the Property, Owner shall have thirty (30) days (the "Title Cure Period") after receipt of such notice during which Owner may, but shall not be obligated to, remedy the defect(s) specified in order Purchaser's notice. Upon the first to provide occur of (i) Owner's notice to Purchaser of Owner's inability to remedy such defect in title, or (ii) the applicable Seller an opportunity expiration of the Title Cure Period at a time when Owner shall have failed to cure remedy any defect in title, Purchaser shall have a period of ten (10) days to elect in writing (the "Purchaser's Election Notice") either (a) to accept that title which Owner is able to convey, or (b) to terminate this Agreement, in which event the Deposit shall be returned to Purchaser, and this Agreement shall thereafter become null and void and all parties hereto shall be released from any liability hereunder, except any liability which expressly survives such Title Objection or termination as set forth in this Agreement. If Purchaser fails to deliver to Owner the Purchaser's Election Notice during such ten (10) day period, then Purchaser shall be deemed to have elected to proceed under Section 4(c)(iii)(A)(2with its purchase of the Property.
(ii) If Purchaser notifies Owner of its election to accept title with any such defect(s) within such ten (provided that 10) day period, then the extension(s) Closing Date shall be the later of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than specified in Section 3, or fifteen (15) days beyond after Owner's receipt of the Purchaser's Election Notice.
(iii) If Owner remedies the defect specified in the Purchaser's Election Notice before the expiration of the Title Cure Period, then the Closing Outside Date unless Buyer consents in writing). In shall be the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before later of the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth Date specified in Section 4(d)3 or fifteen (15) days after Owner delivers to Purchaser written notice that such title defect has been remedied.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Homes for America Holdings Inc)
Title Defects. Seller has delivered to Buyer a copy of Seller’s owner’s title policy from Commonwealth Land Title Insurance Company (ithe "Title Company") with respect to the Premises. Buyer shall have until the end of the Inspection Period to object to any matter contained in the Title Commitment (as hereinafter defined). Any matter not objected to within such period shall be deemed a Permitted Encumbrance. The Buyer shall, at the Buyer's expense, shall obtain a commitment (the " Title Commitment") from a title insurance company of the Buyer's choice which is licensed to do business in the State of Maryland for an owner's title insurance policy on a Standard ALTA Policy. Buyer shall promptly provide a copy of the Title Commitment to Seller, at no cost to Seller. If the Title Commitment shows exceptions to title which are objectionable to Buyer, the Buyer may give the Seller notice thereof at any time prior to the end of the Inspection Period enumerating in writing the unacceptable aspects of the Title Commitment. Matters affecting title in existence on the date of the Title Commitment and not timely objected to by Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created been accepted by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) . In the event a that the Title Commitment is unacceptable to Buyer as provided above, and Buyer so notifies Seller within the aforesaid time period, Seller shall, within ten (10) days after receipt of such notice from Buyer, notify Buyer in writing either (a) that Seller is unwilling to correct such unacceptable title matters, or (b) that Seller, at its sole cost and expense, shall undertake to eliminate or modify all such unacceptable matters to the reasonable satisfaction of Buyer. In the event Seller elects to use commercially reasonable efforts not to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller unacceptable title matters or is unable to cure satisfy said objections within ten (10) days after its receipt of such Title Objection on or before notice from Buyer, except for the date originally scheduled for satisfaction of monetary liens at Closing which Seller shall be required to pay off at Closing, then Sellers the Buyer may, at its election: (i) terminate this Agreement, in which event the Deposit referred to in Paragraph 3 and all interest earned thereon shall have be promptly returned to the right Buyer and the parties shall be relieved from further obligations to defer one another under this Agreement; or (ii) accept title to the Property subject to all matters of record as of the date of the Seller’s Title Policy, without an adjustment to the Purchase Price, and proceed with Closing from time hereunder. If Buyer does not elect alternative (i) by written notice to time Seller given within ten (but in no event for more than thirty (3010) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity date of Seller's notice electing not to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) expiration of the Closing Date pursuant aforesaid ten (1) day period without Seller having successfully cured the title objections (whichever is applicable), the Buyer shall be deemed to this clause shall not cause the Closing Date to extend more than fifteen have elected alternative (15) days beyond the Closing Outside Date unless Buyer consents in writingi). In Seller covenants that it will not voluntarily create or cause or permit a lien or encumbrance to attach to the event Property between the Effective Date and Closing; any lien or encumbrance so attaching, as well as any lien or encumbrance, which is a mortgage, deed of trust, judgment lien, or similar monetary lien against the Property, shall be discharged by the Seller is unable at or prior to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Closing.
Appears in 1 contract
Title Defects. (ia) Buyer shall be deemed hereby confirms receipt of: (x) the Title Commitment, (y) copies of all documents referred to have waived its right on Schedule B of the Title Commitment as exceptions to object to any encumbrance coverage, and (z) the Survey. On or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Due Diligence Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object in writing to any title matters that appear on the Title Commitment, the Survey, and any updates thereto (whether or not such mattermatters constitute Permitted Exceptions). After the expiration of the Due Diligence Period, Buyer shall have the right to object in writing to any title matters which are not Permitted Exceptions if (i) such matters first appear on any update to the Title Commitment or Survey issued after the expiration of the Due Diligence Period, and (ii) such objection is made by delivery of a written notice Buyer within five (a “Subsequent Title Objection Notice”) to Sellers within two (25) Business Days after such updated Title Commitment or Survey is received by Buyer (but not later than but, in any event, on or prior to the then-scheduled Scheduled Closing Date) from receipt of ). Unless Buyer is entitled to and timely objects to such update title matters, all such title matters shall be deemed to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure constitute additional Permitted Exceptions.
(iib) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter If this Agreement is not terminated by Buyer in accordance with clause the provisions hereof, Seller shall, at Closing, Remove all Required Removal Exceptions. If Seller is unable to Remove any Required Removal Exceptions on or prior to the Closing, Buyer may at Closing elect to either (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of exercise Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”)'s rights under Section 9.2, or
(Bii) accept such exceptions to title and the Closing shall occur as herein provided without any reduction of or credit against the Purchase Price.
(c) With respect to any title objections that are not Required Removal Exceptions, Seller may elect neither to Remove any such exceptions to title and Seller may notify Buyer in writing within five (5) Business Days after receipt of Buyer's notice of Buyer's title objections (but, in any event, on or prior to the elections referenced in Section 4(c)(iii)(A)Scheduled Closing Date) whether Seller elects to Remove the same. Failure by Sellers of Seller to deliver a Title Objection Response Notice respond in writing within the applicable time such period set forth in clause (iii) above shall be deemed an election by Sellers Seller not to proceed under this clause (B)Remove Buyer's title objections. If any Seller makes elects or is deemed to make the have elected not to Remove one or more of Buyer's title objections, then, within five (5) Business Days after Seller's election described or deemed election (but, in this clause (B) and Buyer delivers a Continuation Notice any event, on or prior to the expiration Scheduled Closing Date), Buyer may elect in writing to either (i) terminate this Agreement, in which event the Deposit shall be paid to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of this Agreement, or (ii) waive such title objections and proceed to Closing without any reduction of or credit against the Inspection Period, then Purchase Price. Failure of Buyer to respond in writing within such Title Objections period shall be deemed an election by Buyer to waive such title objections and proceed to Closing. Any such title objection so waived (or deemed waived) by Buyer shall constitute a Permitted EncumbrancesException.
(ivd) In Seller shall be entitled to one or more extensions of the event a Scheduled Closing Date (not to exceed thirty (30) days in the aggregate) for the purpose of the Removal of any exceptions to title. Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer replace the Closing from time Title Company with another nationally recognized title insurance company reasonably satisfactory to time (but in no event for more than thirty (30) days after Buyer if the then-scheduled Closing Date) in order Title Company fails or refuses to provide the applicable Remove any exceptions to title that Seller an opportunity elects or is required to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Remove.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Title Defects. If: (i) Buyer shall be deemed the Title Commitment reflects any exceptions to have waived its right title which are not acceptable to object Buyer, in Buyer’s sole discretion; (ii) the Survey discloses any state of fact not acceptable to Buyer, in Buyer’s sole discretion; or (iii) at any encumbrance or other time prior to the Closing, title to the Property is encumbered by any exception to title not acceptable to Buyer, in Buyer’s sole discretion (with any such exception or matter pertaining unacceptable state of fact being referred to herein as a “Title Defect”); then Buyer may, on or before the Satisfaction Date (or, in the case of a Title Defect not disclosed by the Title Commitment prior to the Real Property unless Buyer shall have given Sellers a specific Satisfaction Date, within fifteen (15) days after ▇▇▇▇▇ receives notice of such Title Defect), provide Seller with written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”)Defect. Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer Seller shall have the right to object to right, but not the obligation (except as specifically set forth below), during the thirty (30) day period after receipt of such matternotice, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing, to remove such Title Defect or obtain affirmative title insurance coverage acceptable to Buyer, insuring and defending Buyer against any loss, cost, or expense arising out of or related to such Title Defect (“Affirmative Coverage”). If Seller elects to do so, then on or before the Closing Date) from receipt Date (as defined below), Seller shall provide Buyer with reasonable evidence of such update removal or provide reasonable evidence that such Title Defect will be removed or that such Affirmative Coverage will be obtained. Notwithstanding anything contained herein to a Title Commitment. Sellers the contrary, Seller shall have no obligation be obligated to remove expend whatever sums are required to cure or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except obtain Affirmative Coverage for the Mandatory Cure Exceptions.following Title Defects prior to, or at, the Closing:
(i) All mortgages, security deeds, liens, or other security instruments encumbering the Property (which are not the result of acts or omissions of Buyer);
(ii) Upon Judgments against Seller (which are not the result of acts or omissions of Buyer’s failure ) which have attached to timely deliver an Initial Title Objection Notice or and become a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for lien against the Mandatory Cure Exceptions.Property;
(iii) Should Buyer timely deliver an Initial Title Objection Notice or All past due ad valorem taxes and assessments of any kind, which constitute a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have lien against the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title ObjectionProperty; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.and
(iv) In All past due (or currently due) assessments or fees of any kind related to any easement, declaration, covenants, or similar encumbrance affecting the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Property.
Appears in 1 contract
Sources: Real Estate Purchase Agreement
Title Defects. (i) Buyer The Premises shall be deemed conveyed by standard warranty deed, subject to have waived its right easements and restrictions now of record, the rights of the public in all streets and roads abutting the Premises, liens for unpaid property taxes first coming due and payable after the Commencement Date, and zoning and such other matters created by Tenant or arising out of Tenant's use and occupancy of the Premises (the "Permitted Exceptions"), but free and clear of the lien of any mortgage, deed of trust, or security interest created by or resulting from acts of the Landlord, any successor of Landlord, any party claiming through Landlord, or any other person, without the express consent of Tenant. Landlord shall, within fifteen (15) days after delivery of the Purchase Option Notice to object Landlord or delivery of the Sale Option Notice to any encumbrance or other Tenant, whichever is applicable, obtain and deliver to Tenant a commitment for an ALTA owners form of title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable insurance, without standard exceptions, in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration amount of the Inspection Period Purchase Price. Within fifteen (the “Initial Title Objection Deadline”)15) days thereafter, Tenant shall notify Landlord in writing of any claimed defect in title. Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than Within thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity receipt of such notice, Landlord shall notify Tenant of Landlord's election whether or not to cure any or all of such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing)defects. In the event any Seller is that Landlord shall be unable or unwilling to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B)claimed defects, then Buyer Tenant shall have the election set forth option to (i) accept title to the Premises subject to such claimed defects, with a credit against the Purchase Price in Section 4(d)an amount necessary to discharge any lien against the premises, the amount of which is liquidated as of closing, (including interest and penalties thereon accrued to the date of closing) which is not a Permitted Exception, or (ii) terminate and rescind the exercise of the Purchase Option or the Sale Option, whichever is applicable, without any liability to Landlord, and Tenant's right to exercise such Purchase Option and Landlord's right to exercise such Sale Option thereafter shall be terminated.
Appears in 1 contract
Title Defects. (ia) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to hereby confirms receipt of: (y) Seller’s Title Policy and (z) the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”)Survey. Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received From and after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted EncumbranceEffective Date, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object in writing to any title and/or survey matters which are not Permitted Exceptions and which materially adversely affect title to or the marketability of the Real Property (as reasonably determined by Buyer in good faith) if such matter, objection is made to Seller by delivery of a written notice from Buyer within five (a “Subsequent Title Objection Notice”) to Sellers within two (25) Business Days after Buyer becomes aware of such matters (but not later than but, in any event, prior to the then-scheduled Scheduled Closing Date) from receipt of (each such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (eachwritten notice, a “Title ObjectionBuyer Objection Notice” and each such matter to which Buyer objects in writing, an “Objectionable Matter”). Unless Buyer is entitled to and timely objects to such title matters (other than Required Removal Exceptions), except for the Mandatory Cure all such title matters shall be deemed to constitute additional Permitted Exceptions.
(b) If this Agreement is not terminated by Buyer in accordance with the provisions hereof, Seller shall, at Closing, Remove all Required Removal Exceptions. If Seller is unable to Remove any Required Removal Exceptions prior to the Closing, Buyer may at Closing elect to either (i) exercise Buyer’s rights under Section 9.2, or (ii) Upon Buyer’s failure accept such exceptions to timely deliver an Initial Title Objection Notice title and the Closing shall occur as herein provided without any reduction of or a Subsequent Title Objection Notice with credit against the Purchase Price.
(c) With respect to any encumbrance or other title exception or matter Objectionable Matter that is not a Required Removal Exception, Seller may elect to Remove such Objectionable Matter and Seller may notify Buyer in accordance with clause writing within five (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (25) Business Days of after receipt of Buyer’s Subsequent Title a Buyer Objection Notice listing any such Objectionable Matters (and but, in any event, prior to the then-scheduled Scheduled Closing Date shall be automatically extended Date) whether Seller elects to allow for such response period, if necessary), if any, to elect either of Remove the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A)same. Failure by Sellers of Seller to deliver a Title Objection Response Notice respond in writing within the applicable time such period set forth in clause (iii) above shall be deemed an election by Sellers Seller not to proceed under this clause (B)Remove Buyer’s Objectionable Matters. If any Seller makes elects or is deemed to make the have elected not to Remove one or more of such Objectionable Matters, then, within five (5) Business Days after Seller’s election described or deemed election (but, in this clause (B) and Buyer delivers a Continuation Notice any event, prior to the expiration Scheduled Closing Date), Buyer may elect in writing to either (i) terminate this Agreement, in which event the Deposit shall be paid to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of this Agreement, or (ii) waive such Objectionable Matters and proceed to Closing without any reduction of or credit against the Inspection Period, then Purchase Price. Failure of Buyer to respond in writing within such Title Objections period shall be deemed an election by Buyer to waive such Objectionable Matters and proceed to Closing. Any such Objectionable Matter so waived (or deemed waived) by Buyer shall constitute a Permitted EncumbrancesException.
(ivd) In Seller shall be entitled to one or more extensions of the event a Scheduled Closing Date (not to exceed forty-five (45) days in the aggregate) with all other extensions of the Scheduled Closing Date contained herein) for the purpose of the Removal of any Objectionable Matter. Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer replace the Closing from time Title Company with another nationally recognized title insurance company reasonably satisfactory to time (but in no event for more than thirty (30) days after Buyer if the then-scheduled Closing Date) in order Title Company fails or refuses to provide the applicable Remove any Objectionable Matter that Seller an opportunity elects or is required to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Remove.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital New York City REIT, Inc.)
Title Defects. (i) Except as otherwise expressly provided in this Section 4, Seller shall have no obligation to cause any exceptions or encumbrances which are not Permitted Encumbrances to be omitted or removed from any title insurance policies to be issued in connection with the sale of the Property.
(ii) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers Seller a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an a “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection DeadlineDate”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers Seller shall have no obligation to remove or cure any alleged defectsdefect, objections objection or survey matters matter raised in an Initial Title Objection Notice or a Subsequent any Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure ExceptionsMonetary Liens and Voluntary Liens (defined below).
(iiiii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) within the timeframe set forth above, all liens, encumbrances and such encumbrance or other title exceptions exception or matters matter shall thereafter be deemed a Permitted EncumbrancesEncumbrance, except for the Mandatory Cure ExceptionsMonetary Liens and Voluntary Liens.
(iiiiv) In the event that any matters of title first occur or arise following the Title Objection Date, then Buyer shall have the right to give a Title Objection Notice at any time prior to Closing solely with respect to the title matters that first occur or arise following the Title Objection Date and the provisions of this Section 4(c) shall apply.
(v) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers Seller as above provided, Sellers Seller shall have the right, at their its sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within ten (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (210) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, ) to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Companyprovide OS National LLC, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Phone: ▇▇▇-▇▇▇-▇▇▇▇, ▇▇Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, events such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A4(c)(iv)(A). Failure by Sellers Seller to deliver a Title Objection Response Notice within the applicable time period set forth notice described in clause (iiiA) above within said ten (10) Business-Day period shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period), then such Title Objections Buyer shall be deemed Permitted Encumbranceshave the election set forth in Section 4(e).
(ivvi) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(14(c)(iv)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers Seller shall have the right to defer the Closing from time to time (but in no event for more than thirty twenty (3020) days after the then-originally scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(24(c)(iv)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause (A) shall not cause the Closing Date to extend more than fifteen (15) days beyond the Outside Closing Outside Date unless Buyer consents in writingDate). In the event any Seller is unable to cure any Title Objection to which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(14(c)(iv)(A)(1) or Section 4(c)(iii)(A)(24(c)(iv)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d4(e).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in 4.2.1 Buyer’s reasonable discretion Objections to Title; Seller’s Obligations and Rights.
(based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of businessa) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior Prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Due Diligence Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object in writing to any title matters that appear on the Title Commitment, the Survey, and any supplemental title reports or updates to the Title Commitment (whether or not such matters constitute Permitted Exceptions). In addition, after the expiration of the Due Diligence Period, Buyer shall have the right to object in writing to any title matters which are not Permitted Exceptions that may first appear on any supplemental title reports or updates to the Title Commitment or Survey issued after the expiration of the Due Diligence Period so long as such objection is made by Buyer within five (5) business days after Buyer becomes aware of the same (but, in any event, prior to the Closing Date). Unless Buyer is entitled to and timely objects to such mattertitle matters, by delivery of a written notice (a “Subsequent Title Objection Notice”) all such title matters shall be deemed to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure constitute additional Permitted Exceptions.
(iib) Upon Buyer’s failure to timely deliver an Initial To the extent that any Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause Objections do not constitute Required Exceptions, Seller may elect (i) above, all liens, encumbrances and other title exceptions or matters but shall thereafter not be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”obligated) to Remove or cause to be Removed any such Title Objections and Seller shall notify Buyer in writing within five (x5) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of business days after receipt of Buyer’s Initial notice of Title Objection NoticeObjections (but, if anyin any event, or (yprior to the Closing Date) with respect whether Seller elects to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and Remove the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A)same. Failure by Sellers of Seller to deliver a Title Objection Response Notice respond in writing within the applicable time such period set forth in clause (iii) above shall be deemed an election by Sellers Seller not to proceed under this clause (B)Remove such Title Objections. Any Title Objection that Seller elects in writing to Remove shall be deemed a Required Exception. If Seller elects not to Remove one or more Title Objections, then, within five (5) business days after Seller’s election (but, in any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice event, prior to the expiration Closing Date), Buyer may elect in writing to either (i) terminate this Agreement, in which event the Deposit shall be paid to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of the Inspection Periodthis Agreement, then or (ii) waive such Title Objections and proceed to Closing. Failure of Buyer to respond in writing within such period shall be deemed an election by Buyer to waive such Title Objections and proceed to Closing. Any such Title Objection so waived (or deemed waived) by Buyer shall be deemed to constitute a Permitted EncumbrancesException and the Closing shall occur as herein provided without any reduction of or credit against the Purchase Price.
(ivc) In If this Agreement is not terminated by Buyer in accordance with the event a provisions hereof, Seller elects shall, at Closing, Remove or cause to be Removed any Required Exceptions. Seller may use commercially reasonable efforts any portion of the Purchase Price to cure a satisfy any Required Exceptions that exist as of the Closing Date, provided Seller shall cause the Title Objection pursuant Company to Section 4(c)(iii)(A)(1), and such Remove the same. If Seller is unable to cure such Title Objection on or before Remove any Required Exceptions prior to the date originally scheduled for Closing, then Sellers Buyer may at Closing elect to either (a) terminate this Agreement, in which event the Deposit shall be paid to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of this Agreement, or (b) accept such exceptions to title and the Closing shall occur as herein provided without any reduction of or credit against the Purchase Price. Seller shall have the right to defer replace the Closing from time Title Company with another nationally recognized title insurance company if the Title Company fails or refuses to time Remove any exceptions to title that Seller elects or is required to Remove.
(but in no event for more than thirty (30d) days after the then-scheduled Closing Date) in order Seller shall be entitled to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) a reasonable adjournment of the Closing Date pursuant (not to this clause shall not cause the Closing Date to extend more than exceed fifteen (15) days beyond days) for the Closing Outside Date unless Buyer consents in writing). In purpose of the event Removal of any Seller is unable exceptions to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)title.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Title Defects. Purchaser acknowledges receipt of current title commitments (iindividually a "Title Commitment" and collectively the "Title Commitments") Buyer from the Title Company and all back-up documents in connection therewith (the "Title Documents"). On or prior to the date which is ten (10) days before the expiration of the Inspection Period, Purchaser shall submit to Sellers a written notice from Purchaser ("Title Notice") specifying any alleged defects in or objections to the title to the Real Property and Improvements which do not constitute Permitted Encumbrances. Purchaser shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to objection existing of record at the Real Property time of the Title Notice unless Buyer Purchaser shall have timely given to Sellers a specific written notice of its the Title Notice which specified Purchaser’s objection in Buyer’s reasonable discretion (based solely on a unless such encumbrance or other title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) objection was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to listed in a Title Commitment. Sellers Each Seller shall cause any lien, including any existing financing, voluntarily created by such Seller (as distinguished from, for example, a mechanic’s lien asserted against the interest of a tenant in the Real Property and Improvements to be paid at Closing. No Seller shall have no any obligation to remove or cure any other alleged defects, objections defect or survey matters objection raised in an Initial the Title Objection Notice or a Subsequent Notice. Sellers shall, within five (5) business days following receipt of the Title Objection Notice Notice, notify Purchaser of their intent to (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(iiA) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to remove any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed objection which is not a Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, Encumbrance or (yB) with respect to a response to a Subsequent provide the Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) Company such assurances as the Title Company requires to insure Buyer Purchaser against any loss arising from such Title Objection encumbrances or other title objections or (in either of which events, such matter shall be a “Seller Cure Matter”), or
C) elect to do neither (BA) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause nor (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to Purchaser shall then have until the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event Period to either waive any title objection a Seller elects to use commercially reasonable efforts has not agreed to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to terminate this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Agreement.
Appears in 1 contract
Sources: Real Estate Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Title Defects. (ia) Buyer shall be deemed obtain as soon as reasonably practicable and deliver a copy to have waived its right Seller: (x) the Title Commitment, (y) copies of all documents referred to object on Schedule B of the Title Commitment as exceptions to any encumbrance or other title exception or matter pertaining to coverage, and (z) the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior Survey. Prior to the expiration of the Inspection Period Due Diligence Period, Buyer shall have the right, it its sole discretion, to object in writing to any title matters that appear on the Title Commitment, the Survey, and any updates thereto (the “Initial Title Objection Deadline”whether or not such matters constitute Permitted Exceptions). Notwithstanding After the foregoingexpiration of the Due Diligence Period, Buyer shall have the right, in Buyer’s sole discretion, to object in writing to any title matters which are not Permitted Exceptions if an (i) such matters first appear on any update to a the Title Commitment for any Parcel received or Survey issued after the expiration of the Inspection Period Due Diligence Period, and (ii) such objection is made by Buyer within five (5) Business Days after such updated Title Commitment or Survey is received by Buyer (but, in any event, prior to the applicable Scheduled Closing Date references a new exception Date). Unless Buyer is entitled to and timely objects to such title that (A) matters, all such title matters shall be deemed to constitute additional Permitted Exceptions. If this Agreement is not a Permitted Encumbranceterminated by Buyer in accordance with the provisions hereof, (B) was not previously reflected or referenced on Seller shall, at the Title Commitmentapplicable Closing, Remove all Required Removal Exceptions. If Seller is unable to Remove any existing survey or an updated survey delivered or made available to Buyer Required Removal Exceptions prior to the expiration of applicable Closing, Buyer may at the Inspection Periodapplicable Closing elect to either (i) exercise Buyer’s rights under Section 9.2, or (Cii) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies accept such exceptions to title and the Companion Propertyapplicable Closing shall occur as herein provided without any reduction of or credit against the Purchase Price.
(b) With respect to any title objections that are not Required Removal Exceptions, as a whole, then Seller may elect to Remove any such exceptions to title and Seller may notify Buyer shall have the right to object to such matter, by delivery of a written notice in writing within five (a “Subsequent Title Objection Notice”) to Sellers within two (25) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of after receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt notice of Buyer’s Subsequent Title Objection Notice title objections (and but, in any event, prior to the then-scheduled applicable Scheduled Closing Date shall be automatically extended Date) whether Seller elects to allow for such response period, if necessary), if any, to elect either of Remove the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A)same. Failure by Sellers of Seller to deliver a Title Objection Response Notice respond in writing within the applicable time such period set forth in clause (iii) above shall be deemed an election by Sellers Seller not to proceed under this clause (B)Remove Buyer’s title objections. Any title objection that Seller elects in writing to Remove shall be deemed a Required Removal Exception. If any Seller makes elects or is deemed to have elected not to Remove one or more of Buyer’s title objections (provided Seller shall not have the right to make the this election described with respect to any Required Removal Exception), then, within five (5) Business Days after Seller’s election or deemed election (but, in this clause (B) and Buyer delivers a Continuation Notice any event, prior to the expiration applicable Scheduled Closing Date), Buyer may elect in writing to either (i) terminate this Agreement, in which event the Deposit shall be paid to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of this Agreement, or (ii) waive such title objections and proceed to applicable Closing without any reduction of or credit against the Inspection Period, then Purchase Price. Failure of Buyer to respond in writing within such Title Objections period shall be deemed an election by Buyer to waive such title objections and proceed to the applicable Closing. Any such title objection so waived (or deemed waived) by Buyer shall constitute a Permitted EncumbrancesException.
(ivc) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer replace the Closing from time Title Company with another nationally recognized title insurance company reasonably satisfactory to time (but in no event for more than thirty (30) days after Buyer if the then-scheduled Closing Date) in order Title Company fails or refuses to provide the applicable Remove any exceptions to title that Seller an opportunity elects or is required to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Remove.
Appears in 1 contract
Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not Not later than ten (10) Business Days days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration end of the Inspection Period, Buyer shall furnish to Seller a statement specifying any defects in title and/or the survey which are not Permitted Exceptions (C“Buyer’s Statement”); provided, however, that each financial encumbrance such as a mortgage or judgment, lien for delinquent real estate taxes, attachment, lien claim or other lien or encumbrance of a definite or ascertainable amount which may be removed by the payment of money that is revealed by the title report shall automatically, and without requirement that same be specified in Buyer’s Statement, be deemed an unpermitted exception. Seller shall notify Buyer within five (5) was not created by Buyer business days after receipt of Buyer’s Statement or Buyer Parties and Buyer’s Additional Statement (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Propertydefined below), as a wholethe case may be, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to whether Seller will remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice insure over with respect to prior liens and encumbrances, and in the event of an encroachment by any encumbrance improvement, affirmatively insure against compulsory removal which will include a commitment by the Title Company to provide the same coverage in a future policy. If Seller does not agree, or other title exception or matter in accordance with clause (i) aboveis unable, all liensto remove any such defects, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written by notice given to Seller and Escrow Agent within five (each, a “Title Objection Response Notice”5) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of business days after receipt of BuyerSeller’s Initial Title Objection Noticenotice, if anyeither to (i) waive the defect and close title without abatement or reduction of the Purchase Price, or (yii) with respect to terminate this Agreement and obtain a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either refund of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇Money Deposit. In the event Buyer chooses to terminate this agreement pursuant to the foregoing sentence, ▇▇▇neither party shall have any further liability to the other hereunder except as otherwise expressly provided in this Agreement. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (Nothing contained in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above this Agreement shall be deemed an election by Sellers to proceed under require Seller to take or bring any action or proceeding or any other steps to remove any defect in title or expend monies therefor, nor shall Buyer have any right of action against Seller therefor, at law, or in equity, for damages or specific performance for Seller’s inability to convey title in accordance with the provisions of this clause (B). If any Agreement, except defects that Seller makes agrees to remove or is deemed insure over pursuant to make the election described in this clause (BSection 6(c) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use but does not exercise commercially reasonable efforts to cure a Title Objection pursuant remove or insure over prior to Section 4(c)(iii)(A)(1)Closing. Notwithstanding the foregoing, and such Seller is unable prior to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers Buyer shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the thenorder an update or a date-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) down of the Closing Date pursuant Title Commitment and/or the survey, and, other than Permitted Exceptions, shall have the right to make an objection to any new lien or title defect regarding the Premises which (i) is first revealed or disclosed thereon, and (ii) and is not acceptable to Buyer (a “Buyer’s Additional Statement”); whereupon Seller shall be obligated to satisfy, cure or remove any such lien or defect at or prior to Closing. Notwithstanding the provisions of this clause shall not cause Section to the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents contrary, in writing). In the event any that Seller is unable to remove any new lien or title defect referenced in Buyer’s Additional Statement within the five (5) business day period following Seller’s receipt thereof, Seller may extend the Closing Date for an additional period of ten (10) business days by providing written notice thereof to Buyer and Escrow Agent; provided that Seller shall be obligated to satisfy, cure or remove any Title Objection which such Seller elected lien or defect at or prior to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Closing.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Contract (Global Income Trust, Inc.)
Title Defects. If: (i) Buyer shall be deemed the Title Commitment reflects any exceptions to have waived its right title which are not acceptable to object Buyer, in Buyer’s sole discretion; (ii) the Survey discloses any state of fact not acceptable to Buyer, in Buyer’s sole discretion; or (iii) at any encumbrance or other time prior to the Closing, title to the Property is encumbered by any exception to title not acceptable to Buyer, in Buyer’s sole discretion (with any such exception or matter pertaining unacceptable state of fact being referred to herein as a “Title Defect”); then Buyer may, on or before the Satisfaction Date (or, in the case of a Title Defect not disclosed by the Title Commitment prior to the Real Property unless Satisfaction Date, within fifteen (15) days after Buyer shall have given Sellers a specific receives notice of such Title Defect), provide Seller with written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”)Defect. Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer Seller shall have the right to object to right, but not the obligation (except as specifically set forth below), during the thirty (30) day period after receipt of such matternotice, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing, to remove such Title Defect or obtain affirmative title insurance coverage acceptable to Buyer, insuring and defending Buyer against any loss, cost, or expense arising out of or related to such Title Defect (“Affirmative Coverage”). If Seller elects to do so, then on or before the Closing Date) from receipt Date (as defined below), Seller shall provide Buyer with reasonable evidence of such update removal or provide reasonable evidence that such Title Defect will be removed or that such Affirmative Coverage will be obtained. Notwithstanding anything contained herein to a Title Commitment. Sellers the contrary, Seller shall have no obligation be obligated to remove expend whatever sums are required to cure or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except obtain Affirmative Coverage for the Mandatory Cure Exceptions.following Title Defects prior to, or at, the Closing:
(i) All mortgages, security deeds, liens, or other security instruments encumbering the Property (which are not the result of acts or omissions of Buyer);
(ii) Upon Judgments against Seller (which are not the result of acts or omissions of Buyer’s failure ) which have attached to timely deliver an Initial Title Objection Notice or and become a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for lien against the Mandatory Cure Exceptions.Property;
(iii) Should Buyer timely deliver an Initial Title Objection Notice or All past due ad valorem taxes and assessments of any kind, which constitute a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have lien against the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title ObjectionProperty; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.and
(iv) In All past due (or currently due) assessments or fees of any kind related to any easement, declaration, covenants, or similar encumbrance affecting the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Property.
Appears in 1 contract
Sources: Real Estate Purchase Agreement
Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior Prior to the expiration of the Inspection Period Period, Buyer shall notify Seller in writing (“Buyer’s Notice”) of any title matters disclosed in the Title Commitment or Survey to which Buyer objects (the “Initial Title Objection DeadlineCommitment Defects”). Notwithstanding Any matter disclosed in the foregoing, if an update to a Title Commitment for or Survey and not objected to by Buyer within such period or subsequently waived by Buyer in writing shall be deemed a permitted exception, including, without limitation, the Loan Documents (“Permitted Exception”). If Buyer learns, through continuation reports, updates to the Title Commitment or Survey or other written evidence, of any Parcel received additional title or survey defect(s) not disclosed in the Title Commitment or Survey (the “Additional Title Defects”, and together with the Title Commitment Defects, the “Title Defects”), Buyer shall have the right to object to such Additional Title Defect(s) by giving written notice thereof to Seller on or before the earlier of (x) five (5) business days after the expiration of date Buyer receives such continuation report, updated Title Commitment or other written evidence disclosing such Additional Title Defects or (y) the Inspection Period and Closing Date. Seller shall be obligated, on or prior to the Closing Date references a new exception Closing, to title that (A) is not a Permitted Encumbrancepay, (B) was not previously reflected discharge or referenced on remove of record or cause to be paid, discharged or removed of record or insured over by the Title Commitment, any existing survey or an updated survey delivered or made available Company in a manner satisfactory to Buyer in its sole discretion, at Seller’s sole cost and expense, all of the following items: (a) Voluntary Liens (as hereinafter defined), and (b) other liens encumbering the Project (including judgments and federal, state and municipal tax liens) which (i) are in liquidated amounts and which may be satisfied solely by the payment of money (including the preparation or filing of appropriate satisfaction instruments in connection therewith), excluding, however, mechanic liens which are a tenant’s responsibility to remove pursuant to the terms of the applicable Leases and which are disclosed to Buyer in writing prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (Dii) has a material adverse effect on do not exceed in the Propertyaggregate $500,000 (the “Cure Amount”). Except as set forth in this Section 4.3, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers Seller shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; Defects. The term “Voluntary Liens” as used herein shall mean all monetary liens, including mortgages which Seller has suffered or (2) deliver allowed to Westcor Land Title Insurance Companybe placed on the Project, Inc.other than Permitted Exceptions, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇excluding, ▇▇▇. ▇▇▇however, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (any liens associated with the “Title Company”) such assurances as Existing Indebtedness to be assumed by Buyer and mechanics liens which are a tenant’s responsibility to remove pursuant to the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither terms of the elections referenced applicable Leases and which are disclosed to Buyer in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice writing prior to the expiration of the Inspection Period. If Seller, then after having used commercially reasonable good faith efforts (which shall include curing and removing of record all Voluntary Liens and expending money to cure all other Title Defects up to the Cure Amount), is unable to cure a Title Defect on or prior to Closing, Buyer may, at its discretion (i) elect to adjourn the Closing for a period not to exceed ten (10) business days to allow Seller to cure such Title Objections Defect, and in such event Seller shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects continue to use commercially reasonable good faith efforts to cure a Title Objection pursuant effect such cure, (ii) elect to Section 4(c)(iii)(A)(1), and such Seller is unable to cure waive in writing such Title Objection on Defect in which case it shall be deemed a Permitted Exception or before (iii) terminate this Agreement in which event Buyer shall be entitled to receive the date originally scheduled for Closing, then Sellers shall have Escrow Deposit. If an act or omission of Seller that is not reflected in the right to defer Title Commitment or Survey or any continuation thereof or in the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) Permitted Exceptions as of the Closing Date pursuant has an effect on title to this clause shall the Real Property and if Seller does not cure or cause the Closing Date Title Company to extend more than fifteen (15) days beyond the Closing Outside Date unless insure over such item in a manner satisfactory to Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B)its sole discretion, then Buyer shall have may either waive such matter or terminate this Agreement and receive the election set forth Escrow Deposit and pursue its remedies under Section 10.2. Notwithstanding anything in this Section 4(d)4.3 to the contrary, Buyer may, in its sole discretion, at any time accept such title as Seller can convey, without reduction of the Purchase Price or any credit or allowance on account thereof.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Parkway Properties Inc)
Title Defects. Buyer shall order a title commitment (the "Title Commitment") for the Property from Escrow Agent promptly after the Effective Date. If the Title Commitment discloses exceptions to title which Buyer finds to be objectionable, Buyer shall provide Seller with written notice of its objection to any such title exception (each, an "Objection") prior to the expiration of the Due Diligence Period, and Seller shall have five (5) business days from the date of such notice to agree to have each Objection removed prior to Closing, or to have the title insurer commit to insure over such Objection or to correct each such other matter. If Seller does not commit to remove or cure such Objection as aforesaid, Buyer may elect as its sole and exclusive remedy in such event, to either (i) terminate this Agreement, in which case the E▇▇▇▇▇▇ Money shall be returned to Buyer, whereupon this Agreement shall be null and void and of no further force and effect, or (ii) elect to accept title to the Property subject to such unresolved or uncured Objection, whereupon such Objection shall be deemed an additional Permitted Exception. If Buyer fails to make either such election, Buyer shall be deemed to have waived its right elected to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers terminate this Agreement and receive a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration return of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇E▇▇▇▇▇▇ ▇▇▇▇Money. After the expiration of the Due Diligence Period, ▇▇▇if any new exception to title not revealed in the Title Commitment is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing, Buyer shall have until the earlier of (i) ten (10) days after the Buyer's receipt of the updated, revised Title Commitment showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller with written notice of its new Objection. ▇▇▇If Seller does not commit to remove or cure such Objection as aforesaid, ▇▇Buyer may elect as its sole and exclusive remedy in such event, to either (i) terminate this Agreement, in which case the E▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter Money shall be a “Seller Cure Matter”)returned to Buyer, or
(B) to elect and neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period party shall have any further obligation hereunder, except as otherwise expressly set forth in clause herein, or (iiiii) above elect to accept title to the Property subject to such unresolved or uncured new Objection, whereupon such new Objection shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed additional Permitted EncumbrancesException.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Realty Capital Trust III, Inc.)
Title Defects. (i) Buyer Seller shall convey and Purchaser shall accept such title as any Title Company shall be deemed willing to have waived insure in accordance with its right to object to any encumbrance or other standard form of title exception or matter pertaining policy approved by the New York State Department of Financial Services, free of all encumbrances, exceptions and liens, except as otherwise stated herein and subject to the Real Property unless Buyer standard, pre-printed exceptions contained in the Title Company's report. Prior to Closing, Seller shall cause all historical designations set forth on the Town of Islip Department of Planning Development Building Division Certificate and any certificate of occupancy to be removed and shall obtain an updated Building Division Certificate without any such historical designation. Seller shall have given Sellers a specific the option, at its sole discretion, to satisfy Purchaser's timely objections to title, other than the Permitted Encumbrances, prior to Closing. If Seller elects not to satisfy such objections, then Seller must deliver written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel such election to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than Purchaser within ten (10) Business Days prior days of receiving the Title Report, and Purchaser must within thirty (30) days of receipt of Seller's notice to the expiration objections either: (i) waive the objections and accept such title as Seller is able to convey (other than items arising after the date of the Inspection Period Title Report) without reduction in the Purchase Price, or (ii) terminate this Contract by giving written notice to Seller on or before the “Initial Title Objection Deadline”)thirtieth (30th) day following receipt of Seller's notice that it will not satisfy the objections, in which event the Downpayment shall be returned to Purchaser and the parties hereto shall be released of any further liability hereunder. If Seller elects to satisfy such objections, the Seller shall, at Seller's option, be entitled to an adjournment, if necessary, not to exceed 60 days in the aggregate from the date set for the Closing, for the purpose of removing such defect, lien or encumbrance. However, any action taken by the Seller to remove such defect, lien or encumbrance shall not, in and of itself, be deemed an admission on Seller's part that such defect, lien or encumbrance is one which would give the Purchaser the right to cancel this Contract, notwithstanding that the same may still be a valid title objection hereunder. Notwithstanding the foregoing, if an update to a Title Commitment for Seller shall be obligated to: (i) remove any Parcel received after the expiration of the Inspection Period and matters prior to the Closing Date references a new exception which it has agreed to title that remove, and shall satisfy: (Aa) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties all judgments against Seller and (Db) has a material adverse effect on the Property, the Acquired Companies all mortgages and the Companion Property, as a whole, then Buyer shall have the right other monetary liens or violations (other than those attributable to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”Purchaser), except for the Mandatory Cure Exceptions.
and, (ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for arising after the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial date of the Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within Report: (x) with respect to a response to remove any voluntary liens or encumbrances ("voluntary" meaning an Initial Title Objection Noticeinstrument executed by Seller), eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or and (y) with respect to remove any involuntary liens or encumbrances caused by Seller's acts or omissions up to a response maximum amount of $150,000.00, and Purchaser shall be entitled to a Subsequent Title Objection Notice, two (2) Business Days credit against the Purchase Price for any involuntary liens in excess of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove $150,0000 amount which are not removed or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇cured by Seller. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such that the Seller is unable to cure eliminate the title objections and convey the Premises despite the use of commercially reasonable efforts, subject to and in accordance with this Contract on the date set for the delivery of the Deed, or on any adjourned date permitted hereunder, and provided that Seller is not otherwise in default hereunder, Seller's sole obligation shall be to refund to the Purchaser the Downpayment with interest thereon, together with Purchaser's reasonable out-of-pocket expenses in connection with the Title Report; and upon the payment thereof or tender of said payment, this Contract shall terminate and come to an end, and neither party shall have any claim for damages against the other. However, Purchaser may, if Purchaser shall so elect in Purchaser's sole discretion, accept such title as Seller is able to convey and shall pay the full Purchase Price. Notwithstanding anything to the contrary set forth herein, no lien or encumbrance against the Premises arising out of any action or inaction of Purchaser, or any of its agents, contractors, subcontractors, vendors, assignees, employees or invitees shall be deemed to be an objection to title or to render title uninsurable and Purchaser shall purchase the Premises subject to same without reduction in the Purchase Price. Purchaser shall cause the Title Objection Company to update the Title Report on or before about the date originally scheduled for ClosingApproval Date, then Sellers shall have the right as same may be extended pursuant to defer the Closing this Contract, and from time to time (but in no event for more than thirty (30) days after prior to the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) date of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing)Closing. In the event any Seller is unable to cure any Title Objection title or survey defects, exceptions, encumbrances or liens which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before are not Permitted Encumbrances arise from and after the date scheduled for Closing (of the original Title Report, such title defects shall be deemed title defects as if such date may be extended as title defects were set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B)in the original Title Report, then Buyer and the parties shall have the election same rights and obligations with respect to such new title defects as if such defects were set forth in Section 4(d)the original Title Report.
Appears in 1 contract
Sources: Contract of Sale
Title Defects. Upon receipt of the last to be received of the Title Commitments, the Surveys and all Schedule B documents referenced in the Title Commitments and the Surveys, Wintrust will have a period of ten (10) days to examine the Title Commitments and notify the Company in writing (the “Title Defect Notice”) of (i) Buyer shall be deemed to have waived its right to object to any encumbrance defects or other objections materially affecting the marketability of the title exception or matter pertaining to the Real Property unless Buyer which are not included in the Permitted Encumbrances (the “Title Defects”) and (ii) any endorsements (“Title Endorsements”) to the Title Policies (as defined below) reasonably required by Wintrust. Without limiting the generality of the foregoing, the Title Endorsements shall include an extended coverage endorsement deleting or insuring over all general or standard exceptions to title customarily contained in such Title Policies and a 3.1 zoning endorsement (with parking coverage). Upon its receipt of the Title Defect Notice, the Company will have given Sellers a specific until the Closing Date to cure the Title Defects and obtain the Title Endorsements at the Company’s sole expense. If the Company fails or elects not to cure the Title Defects or obtain the Title Endorsements by the Closing Date and such Title Defects either materially interfere with the use or operation of the Real Property, or materially affect the fair market value of the Real Property, in either case as determined by Wintrust in its sole reasonable discretion, Wintrust will have the option in its sole discretion to: (x) terminate this Agreement by giving written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior termination to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, Company; or (y) accept title to the Real Property with respect the Title Defects and without the Title Endorsements, subject to a response reduction in the Merger Consideration equal to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (an amount to be mutually agreed upon in good faith by Wintrust and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).
Appears in 1 contract
Title Defects. (ia) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior Prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Due Diligence Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object in writing to any title matters that appear on the Title Commitment, the Survey, and any updates thereto (whether or not such mattermatters constitute Permitted Exceptions). After the expiration of the Due Diligence Period, Buyer shall have the right to object in writing to any title matters which are not Permitted Exceptions and which materially adversely affect Buyer’s title to the Real Property (as reasonably determined by delivery Buyer in good faith) if (i) such matters first appear on any update to the Title Commitment or Survey issued after the expiration of a written notice the Due Diligence Period, and (a “Subsequent Title Objection Notice”ii) to Sellers such objection is made by Buyer within two five (25) Business Days after such updated Title Commitment or Survey is received by Buyer (but not later than but, in any event, prior to the then-scheduled Scheduled Closing Date) from receipt of ). Unless Buyer is entitled to and timely objects to such update title matters, all such title matters shall be deemed to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure constitute additional Permitted Exceptions.
(iib) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with With respect to any encumbrance or other title exception or matter objections that are not Required Removal Exceptions, Seller may elect to Remove any such exceptions to title and Seller may notify Buyer in accordance with clause writing within five (i5) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of after receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt notice of Buyer’s Subsequent Title Objection Notice title objections (and but, in any event, prior to the then-scheduled Scheduled Closing Date shall be automatically extended Date) whether Seller elects to allow for such response period, if necessary), if any, to elect either of Remove the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A)same. Failure by Sellers of Seller to deliver a Title Objection Response Notice respond in writing within the applicable time such period set forth in clause (iii) above shall be deemed an election by Sellers Seller not to proceed under this clause (B)Remove Buyer’s title objections. If any Seller makes elects or is deemed to make the have elected not to Remove one or more of Buyer’s title objections, then, within five (5) Business Days after Seller’s election described or deemed election (but, in this clause (B) and Buyer delivers a Continuation Notice any event, prior to the expiration Scheduled Closing Date), Buyer may elect in writing to either (i) terminate this Agreement, in which event the Deposit (except for the Non-Refundable Deposit, which shall be paid to Seller) shall be paid to Buyer and, thereafter, the parties shall have no further rights or obligations hereunder except for obligations which expressly survive the termination of this Agreement, or (ii) waive such title objections and proceed to Closing without any reduction of or credit against the Inspection Period, then Purchase Price. Failure of Buyer to respond in writing within such Title Objections period shall be deemed an election by Buyer to waive such title objections and proceed to Closing. Any such title objection so waived (or deemed waived) by Buyer shall constitute a Permitted EncumbrancesException.
(ivc) In If this Agreement is not terminated by Buyer in accordance with the event a provisions hereof, Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1)shall, and such at Closing, Remove all Required Removal Exceptions. If Seller is unable to cure Remove any Required Removal Exceptions prior to the Closing (as extended as provided in Section 3.1(d)), Buyer may at Closing elect to either (i) exercise Buyer’s rights under Section 9.2, or (ii) accept such Title Objection on exceptions to title and the Closing shall occur as herein provided without any reduction of or before credit against the date originally scheduled Purchase Price.
(d) Seller shall be entitled to one or more extensions of the Scheduled Closing Date (not to exceed fifteen (15) days in the aggregate) to allow additional time for Closing, then Sellers Seller to Remove any exceptions to title. Seller shall have the right to defer replace the Closing from time Title Company with another nationally recognized title insurance company reasonably satisfactory to time (but in no event for more than thirty (30) days after Buyer if the then-scheduled Closing Date) in order Title Company fails or refuses to provide the applicable Remove any exceptions to title that Seller an opportunity elects or is required to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (Remove, provided that Buyer approves, acting reasonably the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event title commitment and pro forma owner’s title insurance policy issued by any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).replacement title insurance company
Appears in 1 contract
Sources: Purchase and Sale Agreement (Preferred Apartment Communities Inc)
Title Defects. (i) Buyer If, on the Closing Date, the Title Company shall be deemed unwilling to have waived its right issue the Title Policy in accordance with the provisions of this Agreement, Transferors shall be entitled, but shall not be obligated, to object adjourn the Closing for one or more periods not to exceed 60 days in the aggregate (concurrent with any encumbrance or other adjournments taken by Transferors hereunder) for the purpose of causing title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel Mall to not be rentable placed in the ordinary course condition called for by this Agreement. If on the Closing Date, as the same may be adjourned as above provided, the Title Company shall be unwilling to issue the Title Policy in accordance with the terms of business) this Agreement, Transferees may terminate this Agreement by notice to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and Transferors delivered on or prior to the Closing Date references Date, as the same may have been extended, in which event this Agreement shall be terminated and of no further effect and neither party shall have any obligations of any nature to the other hereunder or by reason hereof, except as to those obligations hereunder that are specifically stated to survive such termination, and the Deposit shall be returned to Transferees by Escrow Agent (and in such circumstances Transferors shall join with Transferees in a new written instruction to Escrow Agent to pay the Deposit to Transferees in the manner set forth in Section 3.02). Transferors shall be under no obligation to take any steps or to institute or prosecute any action or proceedings, or expend any sums of money, to remove from title to the Mall any defect, encumbrance or objection to title; provided, however, that Transferors shall be responsible for discharging or causing the Title Company affirmatively to insure over any liens (including judgment liens against either Transferor or the Joint Venture), mortgages or deeds of trust which do not constitute Permitted Encumbrances, which secure liquidated amounts, which can be discharged solely by the payment of a fixed and determined sum of money and which arise on account of obligations undertaken or actions performed, or actions required to be performed under the terms of this Agreement and not so performed, by Transferors or the Joint Venture. Except for Transferors' failure to discharge or cause the Title Company affirmatively to insure over such liens or encumbrances as aforesaid, Transferors shall not be deemed in default of this Agreement, and Transferees shall not be entitled to damages of any kind, if Transferors shall be unable to satisfy the conditions set forth herein pertaining to the state of title to the Mall, nor shall Transferees in such circumstances be entitled to specific performance of this Agreement; provided, however, that the foregoing provisions of this sentence shall not apply in respect of any exception to title that (A) which is created as a result of the intentional act or omission of Transferors or the Joint Venture between the date hereof and the Closing Date and is not permitted under the terms of Article XI. In no event shall Transferors be obligated to discharge any mechanic's or similar lien created by a Tenant in occupancy or an Adjoining Owner to the extent the same shall constitute a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitmentbut Transferors shall, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection PeriodClosing, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove cause such Tenant or cure any Title Objection; or (2) deliver Adjoining Owner to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇do so.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).
Appears in 1 contract
Sources: Contribution and Exchange Agreement (General Growth Properties Inc)
Title Defects. If: (i) Buyer shall be deemed the Title Commitment reflects any exceptions to have waived its right title which are not acceptable to object Buyer, in Buyer’s sole discretion; (ii) the Survey discloses any state of fact not acceptable to Buyer, in Buyer’s sole discretion; or (iii) at any encumbrance or other time prior to the Closing, title to the Property is encumbered by any exception to title not acceptable to Buyer, in Buyer’s sole discretion (with any such exception or matter pertaining unacceptable state of fact being referred to herein as a “Title Defect”); then ▇▇▇▇▇ may, on or before the Satisfaction Date (or, in the case of a Title Defect not disclosed by the Title Commitment prior to the Real Property unless Buyer shall have given Sellers a specific Satisfaction Date, within fifteen (15) days after ▇▇▇▇▇ receives notice of such Title Defect), provide Seller with written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”)Defect. Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer Seller shall have the right to object to right, but not the obligation (except as specifically set forth below), during the thirty (30) day period after receipt of such matternotice, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing, to remove such Title Defect or obtain affirmative title insurance coverage acceptable to Buyer, insuring and defending Buyer against any loss, cost, or expense arising out of or related to such Title Defect (“Affirmative Coverage”). If Seller elects to do so, then on or before the Closing Date) from receipt Date (as defined below), Seller shall provide Buyer with reasonable evidence of such update removal or provide reasonable evidence that such Title Defect will be removed or that such Affirmative Coverage will be obtained. Notwithstanding anything contained herein to a Title Commitment. Sellers the contrary, Seller shall have no obligation be obligated to remove expend whatever sums are required to cure or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except obtain Affirmative Coverage for the Mandatory Cure Exceptions.following Title Defects prior to, or at, the Closing:
(i) All mortgages, security deeds, liens, or other security instruments encumbering the Property (which are not the result of acts or omissions of Buyer);
(ii) Upon Judgments against Seller (which are not the result of acts or omissions of Buyer’s failure ) which have attached to timely deliver an Initial Title Objection Notice or and become a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for lien against the Mandatory Cure Exceptions.Property;
(iii) Should Buyer timely deliver an Initial Title Objection Notice or All past due ad valorem taxes and assessments of any kind, which constitute a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have lien against the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title ObjectionProperty; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.and
(iv) In All past due (or currently due) assessments or fees of any kind related to any easement, declaration, covenants, or similar encumbrance affecting the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Property.
Appears in 1 contract
Sources: Real Estate Purchase Agreement
Title Defects. If any Title Commitment or Survey discloses any (i) Buyer shall be deemed to have waived its right to object to any encumbrance mortgages, deeds of trust, financing statements, judgments, mechanic's liens, materialmen's liens, tax liens, or similar monetary liens, (ii) material encroachments, or (iii) other title exception exceptions or matter pertaining defects that materially and adversely affect the future use or operation of a Property as a Sears brand retail store, including, without limitation, the sale of consumables and transactional merchandise (a "MATERIAL TITLE DEFECT"), Purchaser shall use commercially reasonable efforts to the Real Property unless Buyer shall have given Sellers a specific written notice notify Seller in writing of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Material Title Objection Notice”) by not later than Defect within ten (10) Business Days prior days after Purchaser's receipt of a Title Commitment and Survey for a Property, but in no event later than forty five (45) days after the Effective Date (the "TITLE REVIEW PERIOD"), and Seller shall have ten (10) days from the receipt of Purchaser's notice ("SELLER'S TITLE CURE ELECTION PERIOD") to elect whether to have the Material Title Defect removed or cured (or to commit to do the same), to the reasonable satisfaction of Purchaser. In the event Seller elects, within Seller's Title Cure Election Period, not to remove or cure such Material Title Defect, Purchaser shall have the option, within ten (10) days after the expiration of Seller's Title Cure Election Period, to either (i) waive such Material Title Defect and proceed to Closing for such Property in accordance with this Agreement, or (ii) elect not to acquire such Property and related Transferred Assets, in which event the Inspection Period Property Termination Procedure shall apply. In the event Seller elects, within Seller's Title Cure Election Period, to remove or cure such Material Title Defect, Seller shall be entitled to a period ending on the later of (1) 30 days after the “Initial expiration of Seller's Title Objection Deadline”Cure Election Period, or (2) the Closing Date with respect to such Property, to remove or cure such Material Title Defect, upon which removal or cure the parties shall proceed to Closing for such Property in accordance with this Agreement. Any liens, encumbrances, title defects or other title exceptions disclosed in any Title Commitment or Survey and which do not constitute Material Title Defects (and any Material Title Defects which Purchaser elects to waive pursuant to this Section 6.2), shall be referred to herein as the "PERMITTED EXCEPTIONS". Notwithstanding the foregoing, if an update Seller shall cause to a Title Commitment for any Parcel received after the expiration be removed and discharged of the Inspection Period and record prior to Closing (i) any lien encumbering the Closing Date references Property and securing money borrowed by Seller, and (ii) any mechanic's lien, judgment lien or other lien securing a new exception liquidated sum relating to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected work performed by or referenced on the Title Commitment, any existing survey behalf of Seller or an updated survey delivered or made available otherwise required to Buyer prior be removed by Seller pursuant to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the applicable Lease for such Property, the Acquired Companies and the Companion Property, as a whole, then Buyer provided that Seller shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation be required to remove or cure discharge at Closing any alleged defectsbona fide mechanic's liens, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance judgment liens or other title exception or matter in accordance with clause liens (iexcluding judgment liens relating to non-appealable judgments) above, all liens, encumbrances encumbering the Property and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (Bii) and Buyer delivers a Continuation Notice prior to if the expiration aggregate amount of such liens exceeds five percent (5%) of the Inspection PeriodPurchase Price allocated to such Property, and if Seller so elects not to remove and discharge such liens at Closing pursuant to this proviso, then such Title Objections Purchaser shall be deemed Permitted Encumbrances.
have the same rights (ivas set forth in the second sentence of this Section 6.2) In the event a as if Seller elects to use commercially reasonable efforts shall have elected not to cure a Material Title Objection pursuant Defect, except that if Purchaser elects to Section 4(c)(iii)(A)(1), waive such Material Title Defect and such Seller is unable to cure such Title Objection on or before the date originally scheduled for proceed to Closing, then Sellers the Purchase Price allocated to such Property shall have the right to defer the Closing from time to time be reduced by five percent (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d5%).
Appears in 1 contract
Title Defects. If any Title Commitment or Survey discloses any (i) Buyer mortgages, deeds of trust, financing statements, judgments, mechanic's liens, materialmen's liens, tax liens, or similar monetary liens, other than those listed on Schedule 6.6 hereto, or (ii) other title exceptions or defects that materially and adversely affect the Contemplated Business of a Property or can be cured or removed by the payment of a liquidated sum of money (not to exceed $5,000,000) (collectively, "MATERIAL TITLE DEFECTS"), Empire shall notify Transferor in writing of such Material Title Defect within ten (10) business days after Empire's receipt of a Title Commitment and Survey for a Property (the "TITLE REVIEW PERIOD"), and Transferor shall have ten (10) days from the receipt of Empire's notice ("TRANSFEROR'S TITLE CURE ELECTION PERIOD") to elect whether to have the Material Title Defect removed or cured, to the reasonable satisfaction of Empire. In the event Transferor fails to make such election, Transferor shall be deemed to have waived its right elected not to object cure the Material Title Defects. In the event Transferor elects, within Transferor's Title Cure Election Period, not to any encumbrance remove or other title exception or matter pertaining to the Real Property unless Buyer cure such Material Title Defect, Empire shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than option, within ten (10) Business Days prior to days after the expiration of Transferor's Title Cure Election Period, to either (i) waive such Material Title Defect and proceed to Closing for the Inspection Period Properties in accordance with this Agreement, or (ii) elect not to acquire the “Initial Properties and terminate this Agreement. If Empire fails to so elect, Empire shall be deemed to waive the Material Title Objection Deadline”Defects. In the event Transferor elects, within Transferor's Title Cure Election Period, to remove or cure such Material Title Defect, Transferor shall be entitled to a period ending on the later of (1) 45 days after the expiration of Transferor's Title Cure Election Period, or (2) the 10 days prior to Closing Date, to remove or cure such Material Title Defect, upon which removal or cure the parties shall proceed to Closing in accordance with this Agreement. Such cure or removal shall be a condition to Empire's obligation to proceed to Closing. Any liens, encumbrances, title defects or other title exceptions disclosed in any Title Commitment or Survey and which do not constitute Material Title Defects (and any Material Title Defects which Empire elects to waive pursuant to this SECTION 6.3), shall be deemed to be Permitted Exceptions. Notwithstanding the foregoing, if an update Transferor shall cause to a Title Commitment for any Parcel received after the expiration be removed and discharged of the Inspection Period and record (including by bonding) prior to Closing (i) any Lien encumbering the Closing Date references Properties securing money borrowed by Transferor or removable by the payment of a new exception to title that (A) is not a Permitted Encumbranceliquidated monetary sum, other than the Empire Payment Obligations, (Bii) was any judgment lien or other lien securing a liquidated sum, provided that Transferor shall not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation be required to remove or cure discharge at Closing any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance judgment liens or other title exception or matter in accordance with clause liens (iexcluding judgment liens relating to non-appealable judgments) above, all liens, encumbrances encumbering the Properties and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (Bii) if the aggregate amount of such Liens exceeds $5,000,000, and Buyer delivers a Continuation Notice prior if Transferor so elects not to the expiration of the Inspection Periodremove and discharge such Liens at Closing pursuant to this proviso, then such Title Objections Empire shall be deemed Permitted Encumbrances.
have the same rights (ivas set forth in the second sentence of this SECTION 6.3) In the event a Seller elects to use commercially reasonable efforts as if Transferor shall have elected not to cure a Material Title Objection pursuant Defect. Such cure or removal shall be a condition to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or Empire's obligation to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Closing.
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Title Defects. (i) Buyer shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers Seller a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, Companion Property, the Acquired Companies (as defined in the Companion Contract) and the Fee Owner (as defined in the Companion PropertyContract), as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers Seller within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers Seller shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers Seller as above provided, Sellers Seller shall have the right, at their its sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if any, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers Seller to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers Seller to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers Seller shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect Seller elects or are is deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).
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Sources: Purchase and Sale Agreement (Vinebrook Homes Trust, Inc.)
Title Defects. If, upon review of the Title Documents, Purchaser asserts the existence of any encumbrance, encroachment, defect in or other matter affecting title which, in Purchaser's opinion, renders title to the Property, unmarketable or otherwise unacceptable, and which Purchaser does not waive (i) Buyer any of the foregoing shall be deemed to have waived its right to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific "Title Defect"), Purchaser will give Seller written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of businesssuch Title Defect(s) to any such matter (an “Initial Title Objection Notice”) by not later than within ten (10) Business Days prior to business days after Purchaser's discovery of each such Title Defect and, in any case, on or before the expiration date of the Inspection Period (the “Initial Title Objection Deadline”)Closing. Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer shall have the right to object to such matter, by delivery of a written notice (a “Subsequent Title Objection Notice”) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from After receipt of such update to a Title Commitment. Sellers notice, Seller shall have no obligation use such efforts and expend such amount as are reasonable to remove or cure any alleged defects, objections or survey matters raised in an Initial such Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure Defects prior to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect to any encumbrance or other title exception or matter in accordance with clause (i) above, all liens, encumbrances and other title exceptions or matters shall thereafter be deemed Permitted Encumbrances, except for the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers Closing. Seller shall have the rightno obligation, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessary), if anyhowever, to elect either of the following:
(A) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B)Defect. If Seller elects, in its sole discretion, to cure any Title Defect, Seller makes or is deemed may, by written notice to make the Purchaser within five (5) days of such election described but, in this clause (B) and Buyer delivers a Continuation Notice any event, prior to the expiration date of the Inspection PeriodClosing, then such Title Objections shall be deemed Permitted Encumbrances.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before extend the date originally scheduled of Closing for Closing, then Sellers shall have the right a period up to defer the Closing from time to time (but in no event for more than thirty (30) days after (the then-scheduled Closing Date"Title Defect Extension") in order to provide the applicable Seller an opportunity attempt to cure such Title Objection Defect. If Seller elects to invoke the Title Defect Extension, Seller shall give written notice to Purchaser when any Title Defect is cured and Closing shall occur on the tenth (10th) business day following the giving of such notice or such other date to proceed under Section 4(c)(iii)(A)(2) (provided that which the extension(s) parties may agree which shall be, in any event, prior to the end of the Closing Date pursuant to this clause shall thirty (30) day time period referenced above for Title Defect extension. If Seller does not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller or is unable to so remove or cure all such Title Defects prior to Closing, Purchaser may: (i) waive all such uncured Title Defects and accept such title as Seller is able to convey as of Closing; or (ii) terminate this Agreement and all parties shall be relieved of any further obligations hereunder. Seller shall be entitled to use and rely on the net proceeds from Closing otherwise due to the Seller in order to cure or remove any Title Objection Defect which such may be removed by payment of an ascertainable amount of money and for which the title policy will delete or affirmatively insure over the Title Defect so cured in conjunction with, and at the time of, the Closing. Purchaser agrees that any Title Defect shall be deemed cured if Seller elected shall cause the Title Defect to attempt be deleted from the Title Commitment and the "Title Policy" as defined below, or if Seller obtains affirmative title insurance protection inuring to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on the purchaser with respect thereto at or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d)Closing.
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Title Defects. If (1) the Title Commitment shows that Seller does not have recordable, marketable, and indefeasible title to the Property in fee simple subject only to the Permitted Exceptions; or if (2) the Title Commitment or the Survey shows that the Property is subject to any title defects, liens, encumbrances, easements, rights-of-way, covenants, reservations or restrictions other than Permitted Exceptions and mortgages or other monetary liens which Seller agrees Seller will cause to be discharged or canceled at the time of Closing; or if (3) the Survey discloses conditions which are not in conformity with the criteria set forth in the preceding paragraph; or if (4) Purchaser determines that any utility easements or other matters will have an adverse affect upon the ability to fully use the Property for the Project (all of the foregoing being collectively called “Title Defects” or individually, a “Title Defect”), then Purchaser shall give Seller written notice thereof on or prior to the forty-fifth (45th) day after the date of this Agreement. On or before ten (10) days after Seller’s receipt of written notice of any Title Defect, Seller shall notify Purchaser in writing whether or not Seller intends to cure such Title Defect. If Seller notifies Purchaser in writing that Seller intends to cure any Title Defect, then Seller shall do so at its expense prior to Closing. If Seller notifies Purchaser in writing that Seller is unwilling or unable to remove any Title Defect, then Purchaser may, at its option, (i) Buyer agree to waive such defects and proceed to close the purchase of the Property as-is; or (ii) terminate this Agreement, such notice to be given in writing within five (5) days after expiration of said ten (10) day period. If Seller fails to respond to the Title Defect in writing within the specified time period, then Seller shall be deemed to have waived its right notified Purchaser that it is unwilling or unable to object to any encumbrance or other title exception or matter pertaining to the Real Property unless Buyer shall have given Sellers a specific written notice of its objection in Buyer’s reasonable discretion (based solely on a title or survey matter that would cause the applicable Parcel to not be rentable in the ordinary course of business) to any such matter (an “Initial Title Objection Notice”) by not later than ten (10) Business Days prior to the expiration of the Inspection Period (the “Initial Title Objection Deadline”). Notwithstanding the foregoing, if an update to a Title Commitment for any Parcel received after the expiration of the Inspection Period and prior to the Closing Date references a new exception to title that (A) is not a Permitted Encumbrance, (B) was not previously reflected or referenced on cure the Title Commitment, any existing survey or an updated survey delivered or made available to Buyer prior to the expiration of the Inspection Period, (C) was not created by Buyer or Buyer Parties Defect and (D) has a material adverse effect on the Property, the Acquired Companies and the Companion Property, as a whole, then Buyer Purchaser shall have the right to object to such matter, by delivery of a written notice same options described in the immediately preceding sentence. Purchaser shall elect option (a “Subsequent Title Objection Notice”i) to Sellers within two (2) Business Days (but not later than the then-scheduled Closing Date) from receipt of such update to a Title Commitment. Sellers shall have no obligation to remove or cure any alleged defects, objections or survey matters raised in an Initial Title Objection Notice or a Subsequent Title Objection Notice (each, a “Title Objection”), except for the Mandatory Cure Exceptions.
(ii) Upon Buyer’s failure above by written notice to timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice with respect Seller. If Purchaser fails to any encumbrance or other title exception or matter in accordance with clause elect either option as provided herein, Purchaser shall be deemed to have elected option (i) above). If Purchaser terminates this Agreement pursuant to provisions of this sub-paragraph, all liens, encumbrances and other title exceptions or matters Seller shall thereafter be deemed Permitted Encumbrances, except for refund the Mandatory Cure Exceptions.
(iii) Should Buyer timely deliver an Initial Title Objection Notice or a Subsequent Title Objection Notice to Sellers as above provided, Sellers shall have the right, at their sole option, upon written notice (each, a “Title Objection Response Notice”) to Buyer within (x) with respect to a response to an Initial Title Objection Notice, eight (8) Business Days of receipt of Buyer’s Initial Title Objection Notice, if any, or (y) with respect to a response to a Subsequent Title Objection Notice, two (2) Business Days of receipt of Buyer’s Subsequent Title Objection Notice Refundable Deposit (and the then-scheduled Closing Date shall be automatically extended to allow for such response period, if necessaryExtension Fee (hereafter defined), if any, to elect either of the following:
(Aapplicable) to (1) use commercially reasonable efforts to remove or cure any Title Objection; or (2) deliver to Westcor Land Title Insurance CompanyPurchaser free and clear of all claims of Seller, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ (the “Title Company”) such assurances as the Title Company requires to insure Buyer against any loss arising from such Title Objection (in either of which events, such matter and both parties shall be a “Seller Cure Matter”), or
(B) to elect neither of the elections referenced in Section 4(c)(iii)(A). Failure by Sellers to deliver a Title Objection Response Notice within the applicable time period set forth in clause (iii) above shall be deemed an election by Sellers to proceed under this clause (B). If any Seller makes or is deemed to make the election described in this clause (B) and Buyer delivers a Continuation Notice prior to the expiration of the Inspection Period, then such Title Objections shall be deemed Permitted Encumbrancesreleased from all further obligations hereunder.
(iv) In the event a Seller elects to use commercially reasonable efforts to cure a Title Objection pursuant to Section 4(c)(iii)(A)(1), and such Seller is unable to cure such Title Objection on or before the date originally scheduled for Closing, then Sellers shall have the right to defer the Closing from time to time (but in no event for more than thirty (30) days after the then-scheduled Closing Date) in order to provide the applicable Seller an opportunity to cure such Title Objection or to proceed under Section 4(c)(iii)(A)(2) (provided that the extension(s) of the Closing Date pursuant to this clause shall not cause the Closing Date to extend more than fifteen (15) days beyond the Closing Outside Date unless Buyer consents in writing). In the event any Seller is unable to cure any Title Objection which such Seller elected to attempt to cure pursuant to Section 4(c)(iii)(A)(1) or Section 4(c)(iii)(A)(2) on or before the date scheduled for Closing (as such date may be extended as set forth above) or Sellers elect or are deemed to elect to proceed under Section 4(c)(iii)(B), then Buyer shall have the election set forth in Section 4(d).
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