Common use of Title/Survey Clause in Contracts

Title/Survey. No later than October 24, 2003, Seller shall deliver or cause to be delivered to Purchaser an as-built survey of the Property prepared by a surveyor licensed in the State of Oklahoma (the "Survey") certified to Purchaser, Purchaser's lender, if any, the Title Insurer and such other parties as Purchaser shall designate in writing to Seller prior to delivery of the Survey, and prepared in accordance with the Accuracy Standards and Minimum Standard Detail Requirements for ALTA-ACSM Land Title Surveys as adopted by the American Land Title Association, the American Congress on Surveying and Mapping and the National Society of Professional Surveyors in 1999, and prepared in accordance with the items set forth in the Surveyor's Certificate and other requirements attached hereto as EXHIBIT "F" and made a part hereof. Seller shall be responsible to pay for the costs of the Survey up to a total cost of $1,000. Purchaser shall pay the costs of the Survey in excess of $1,000. Notwithstanding the foregoing, if the cost of the Survey is expected to exceed the amount that Seller is obligated to pay, then, prior to ordering the same, Seller shall obtain Purchaser's prior approval of the cost thereof. Any and all references contained in this Agreement to the "Survey" and the "As-Built Survey" shall mean and refer to the Survey. No later than three (3) days after the Effective Date, Purchaser shall, at Seller's sole cost and expense, order from the Title Insurer (as defined hereinbelow) a commitment for an ALTA Owner's Title Insurance Policy (the "Title Commitment") for the Property, together with legible copies of any and all title exception documents referenced therein, issued by Chicago Title Insurance Company (the "Title Insurer") in the amount of the Purchase Price of the Property, showing Seller as owner of the Property in fee simple, subject only to the title exceptions approved or deemed approved by Purchaser pursuant to this Paragraph 5 (each a "PERMITTED EXCEPTION"), and other exceptions pertaining to liens or encumbrances of a definite or ascertainable amount (which, in the aggregate, do not exceed that portion of the Purchase Price payable to Seller on the Closing Date) which may be removed by the payment of money at closing and which Seller shall so remove, and providing for full extended coverage over all general title exceptions contained in such Title Commitment and the following special endorsements (collectively, the "SPECIAL TITLE ENDORSEMENTS"): Zoning Endorsement 3.1 (amended to include parking), owner's comprehensive, access, survey (legal description equivalency), separate tax parcel, contiguity (if applicable), waiver of creditor's rights, environmental protection lien, encroachment (if applicable), utility facility, subdivision, location, deletion of the arbitration provision, and any other endorsements required by Purchaser. No later than ten (10) days after Purchaser's receipt of all of the Title Commitment, legible copies of all documents referenced in the Title Commitment and the Survey, Purchaser may deliver to Seller a notice (the "TITLE AND SURVEY NOTICE") identifying any matters contained in or disclosed by any of the Title Commitment and/or the Survey that are not acceptable to Purchaser in its sole and absolute discretion (each, a "TITLE/SURVEY OBJECTION", and collectively, the "TITLE/SURVEY OBJECTIONS"). Any and all references in this Agreement (a) to the "New Title and Survey Notice" and the "Title and Survey Notice" shall mean and refer to the Title and Survey Notice, and (b) to a "Title/Survey Objection(s)" and/or "New Title/Survey Objection(s)" shall mean and refer to the Title/Survey Objection(s). Purchaser's failure to deliver the Title and Survey Notice as aforesaid shall be deemed Purchaser's approval and acceptance of the Title Commitment and the Survey, and all matters shown and referenced thereon and therein shall be deemed Permitted Exceptions. Additionally, Purchaser's failure to object to any matters disclosed by the Title Commitment and/or the Survey in a Title and Survey Notice shall be deemed Purchaser's acceptance of such matters, and such matters shall be deemed Permitted Exceptions. If Purchaser shall deliver the Title and Survey Notice to Seller as aforesaid, Seller shall, within five (5) days after receipt of the same, notify Purchaser, with respect to each Title/Survey Objection, whether Seller intends to either (a) cause the Title/Survey Objection to be removed, (b) have the Title Insurer issue a title endorsement insuring against damage and loss caused by any Title/Survey Objection (which endorsement shall be subject to the review and approval of Purchaser), or (c) take no further action regarding such Title/Survey Objection in which event, subject to the immediately following sentence, such Title/Survey Objection shall become a Permitted Exception. Notwithstanding the foregoing, Seller shall, at its expense, remove (or cause to be removed) or cause the Title Insurer to insure over any Title/Survey Objection appearing on the Title Commitment that is any of the following: (1) judgments against Seller, and/or (2) mortgages or monetary liens, defects, obligations or exceptions of a definite and ascertainable amount that can be satisfied solely by the payment of money (items (1) and (2) above to be hereinafter referred to collectively as "MONETARY EXCEPTIONS"). If Seller elects, or is deemed to have elected, item (c) above, then Purchaser shall have the right, by delivering notice to Seller within three (3) business days after the expiration of the aforementioned five (5) day period to either (i) terminate this Agreement in which event the ▇▇▇▇▇▇▇ Money (and any interest earned thereon) shall be immediately returned to Purchaser and thereupon neither Seller nor Purchaser shall have any further rights, duties or obligations under this Agreement, or (ii) waive its objection and accept title to the Property subject to such Title/Survey Objections, in which event this Agreement shall remain in full force and effect. Seller's failure to notify Purchaser within the aforementioned five (5) day period of which foregoing course of action Seller elects to take with respect to a Title/Survey Objection shall be deemed Seller's election of item (c) above. With respect to any Title/Survey Objection that Seller has elected or is deemed to have elected not to take any further action, Purchaser's failure to terminate this Agreement on or before the expiration of the aforementioned three (3) business day period as aforesaid shall be deemed Purchaser's waiver of its objection as provided in (ii) above. If the Title Commitment discloses judgments, bankruptcies or other matters against other persons having names the same as or similar to that of Seller, Seller, on the Title Insurer's request, shall deliver to the Title Insurer affidavits or other evidence reasonably acceptable to the Title Insurer showing and/or confirming that such judgments, bankruptcies or other matters are not against Seller, or any affiliates. If Seller has elected or, with respect to Monetary Exception is required, to cure any Title/Survey Objection as provided above (whether by removal of, or obtaining title insurance over, the same), but failed to cure any such matters prior to the Closing Date, then Purchaser, and without waiving any rights of Purchaser for a Seller default under this Agreement, may elect to either (i) terminate this Agreement in which event the ▇▇▇▇▇▇▇ Money shall be immediately returned to Purchaser and thereupon neither Seller nor Purchaser shall have any further rights, duties or obligations under this Agreement, (ii) waive its objection and accept the Property subject to such Title/Survey Objection, in which event this Agreement shall remain in full force and effect; provided, however, that if the Title/Survey Objection is a Monetary Exception, then Purchaser shall have the right to deduct from the Purchase Price the amount of such Monetary Exception, and any amount so deducted from the Purchase Price shall be paid to the appropriate party in exchange for the removal of such Monetary Exceptions; or (iii) ▇▇▇ Seller for specific performance. Notwithstanding anything in this Section or Agreement to the contrary, Seller may elect to not pay off any mechanic's or materialman's lien filed against the Property in connection with the construction provided Seller bonds any such lien to the reasonable satisfaction of Purchaser and the Title Insurer and further provided that the Title Insurer issues, at Seller's cost, an endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to Section 10(c) below insuring against any loss or damage arising on account of such lien. Seller shall have one (1) year from the Closing Date to finalize and cause the release of any mechanic's or materialman's lien filed against the Property in connection with Seller's work to construct, complete and/or to perform warranty work on the Improvements pursuant to Section 15(3) below. This provision shall survive the Closing."

Title/Survey. No later than October 24November 21, 2003, Seller shall deliver or cause to be delivered to Purchaser an as-built survey of the Property prepared by a surveyor licensed in the State of Oklahoma (the "Survey") certified to Purchaser, Purchaser's lender, if any, the Title Insurer and such other parties as Purchaser shall designate in writing to Seller prior to delivery of the Survey, and prepared in accordance with the Accuracy Standards and Minimum Standard Detail Requirements for ALTA-ACSM Land Title Surveys as adopted by the American Land Title Association, the American Congress on Surveying and Mapping and the National Society of Professional Surveyors in 1999, and prepared in accordance with the items set forth in the Surveyor's Certificate and other requirements attached hereto as EXHIBIT "F" and made a part hereof. Seller shall be responsible to pay for the costs of the Survey up to a total cost of $1,000. Purchaser shall pay the costs of the Survey in excess of $1,000. Notwithstanding the foregoing, if the cost of the Survey is expected to exceed the amount that Seller is obligated to pay, then, prior to ordering the same, Seller shall obtain Purchaser's prior approval of the cost thereof. Any and all references contained in this Agreement to the "Survey" and the "As-Built Survey" shall mean and refer to the Survey. No later than three (3) days after the Effective Date, Purchaser shall, at Seller's sole cost and expense, order from the Title Insurer (as defined hereinbelow) a commitment for an ALTA Owner's Title Insurance Policy (the "Title Commitment") for the Property, together with legible copies of any and all title exception documents referenced therein, issued by Chicago Title Insurance Company (the "Title Insurer") in the amount of the Purchase Price of the Property, showing Seller as owner of the Property in fee simple, subject only to the title exceptions approved or deemed approved by Purchaser pursuant to this Paragraph 5 (each a "PERMITTED EXCEPTION"), and other exceptions pertaining to liens or encumbrances of a definite or ascertainable amount (which, in the aggregate, do not exceed that portion of the Purchase Price payable to Seller on the Closing Date) which may be removed by the payment of money at closing and which Seller shall so remove, and providing for full extended coverage over all general title exceptions contained in such Title Commitment and the following special endorsements (collectively, the "SPECIAL TITLE ENDORSEMENTS"): Zoning Endorsement 3.1 (amended to include parking), owner's comprehensive, access, survey (legal description equivalency), separate tax parcel, contiguity (if applicable), waiver of creditor's rights, environmental protection lien, encroachment (if applicable), utility facility, subdivision, location, deletion of the arbitration provision, and any other endorsements required by Purchaser. No later than ten (10) days after Purchaser's receipt of all of the Title Commitment, legible copies of all documents referenced in the Title Commitment and the Survey, Purchaser may deliver to Seller a notice (the "TITLE AND SURVEY NOTICE") identifying any matters contained in or disclosed by any of the Title Commitment and/or the Survey that are not acceptable to Purchaser in its sole and absolute discretion (each, a "TITLE/SURVEY OBJECTION", and collectively, the "TITLE/SURVEY OBJECTIONS"). Any and all references in this Agreement (a) to the "New Title and Survey Notice" and the "Title and Survey Notice" shall mean and refer to the Title and Survey Notice, and (b) to a "Title/Survey Objection(s)" and/or "New Title/Survey Objection(s)" shall mean and refer to the Title/Survey Objection(s). Purchaser's failure to deliver the Title and Survey Notice as aforesaid shall be deemed Purchaser's approval and acceptance of the Title Commitment and the Survey, and all matters shown and referenced thereon and therein shall be deemed Permitted Exceptions. Additionally, Purchaser's failure to object to any matters disclosed by the Title Commitment and/or the Survey in a Title and Survey Notice shall be deemed Purchaser's acceptance of such matters, and such matters shall be deemed Permitted Exceptions. If Purchaser shall deliver the Title and Survey Notice to Seller as aforesaid, Seller shall, within five (5) days after receipt of the same, notify Purchaser, with respect to each Title/Survey Objection, whether Seller intends to either (a) cause the Title/Survey Objection to be removed, (b) have the Title Insurer issue a title endorsement insuring against damage and loss caused by any Title/Survey Objection (which endorsement shall be subject to the review and approval of Purchaser), or (c) take no further action regarding such Title/Survey Objection in which event, subject to the immediately following sentence, such Title/Survey Objection shall become a Permitted Exception. Notwithstanding the foregoing, Seller shall, at its expense, remove (or cause to be removed) or cause the Title Insurer to insure over any Title/Survey Objection appearing on the Title Commitment that is any of the following: (1) judgments against Seller, and/or (2) mortgages or monetary liens, defects, obligations or exceptions of a definite and ascertainable amount that can be satisfied solely by the payment of money (items (1) and (2) above to be hereinafter referred to collectively as "MONETARY EXCEPTIONS"). If Seller elects, or is deemed to have elected, item (c) above, then Purchaser shall have the right, by delivering notice to Seller within three (3) business days after the expiration of the aforementioned five (5) day period to either (i) terminate this Agreement in which event the ▇▇▇▇▇▇▇ Money (and any interest earned thereon) shall be immediately returned to Purchaser and thereupon neither Seller nor Purchaser shall have any further rights, duties or obligations under this Agreement, or (ii) waive its objection and accept title to the Property subject to such Title/Survey Objections, in which event this Agreement shall remain in full force and effect. Seller's failure to notify Purchaser within the aforementioned five (5) day period of which foregoing course of action Seller elects to take with respect to a Title/Survey Objection shall be deemed Seller's election of item (c) above. With respect to any Title/Survey Objection that Seller has elected or is deemed to have elected not to take any further action, Purchaser's failure to terminate this Agreement on or before the expiration of the aforementioned three (3) business day period as aforesaid shall be deemed Purchaser's waiver of its objection as provided in (ii) above. If the Title Commitment discloses judgments, bankruptcies or other matters against other persons having names the same as or similar to that of Seller, Seller, on the Title Insurer's request, shall deliver to the Title Insurer affidavits or other evidence reasonably acceptable to the Title Insurer showing and/or confirming that such judgments, bankruptcies or other matters are not against Seller, or any affiliates. If Seller has elected or, with respect to Monetary Exception is required, to cure any Title/Survey Objection as provided above (whether by removal of, or obtaining title insurance over, the same), but failed to cure any such matters prior to the Closing Date, then Purchaser, and without waiving any rights of Purchaser for a Seller default under this Agreement, may elect to either (i) terminate this Agreement in which event the ▇▇▇▇▇▇▇ Money shall be immediately returned to Purchaser and thereupon neither Seller nor Purchaser shall have any further rights, duties or obligations under this Agreement, (ii) waive its objection and accept the Property subject to such Title/Survey Objection, in which event this Agreement shall remain in full force and effect; provided, however, that if the Title/Survey Objection is a Monetary Exception, then Purchaser shall have the right to deduct from the Purchase Price the amount of such Monetary Exception, and any amount so deducted from the Purchase Price shall be paid to the appropriate party in exchange for the removal of such Monetary Exceptions; or (iii) ▇▇▇ Seller for specific performance. Notwithstanding anything in this Section or Agreement to the contrary, Seller may elect to not pay off any mechanic's or materialman's lien filed against the Property in connection with the construction provided Seller bonds any such lien to the reasonable satisfaction of Purchaser and the Title Insurer and further provided that the Title Insurer issues, at Seller's cost, an endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to Section 10(c) below insuring against any loss or damage arising on account of such lien. Seller shall have one (1) year from the Closing Date to finalize and cause the release of any mechanic's or materialman's lien filed against the Property in connection with Seller's work to construct, complete and/or to perform warranty work on the Improvements pursuant to Section 15(3) below. This provision shall survive the Closing.",