AGREEMENT TO BE
PERFORMED, OBSERVED AND COMPLIED WITH ON ITS PART PRIOR TO OR AS OF THE CLOSING
HEREUNDER.
5.4
DOCUMENTS AND DELIVERIES. ALL INSTRUMENTS AND DOCUMENTS REQUIRED ON
SELLER'S PART TO EFFECTUATE THE CLOSING, AS SET FORTH HEREIN AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE DELIVERED TO BUYER OR THE ESCROW
AGENT, AS REQUIRED HEREBY, AND SHALL BE IN FORM AND SUBSTANCE CONSISTENT WITH
THE REQUIREMENTS HEREIN.
5.5
TITLE POLICY. AT THE CLOSING, TITLE COMPANY SHALL HAVE DELIVERED TO
BUYER EITHER (A) A CLTA OWNER'S STANDARD POLICY OF TITLE INSURANCE (THE "TITLE
POLICY"), INSURING BUYER'S FEE SIMPLE TITLE TO THE PROPERTY IN THE AMOUNT OF THE
PURCHASE PRICE SUBJECT ONLY TO THE PERMITTED EXCEPTIONS, OR (B) TITLE COMPANY'S
IRREVOCABLE COMMITMENT TO ISSUE SUCH POLICY.
7
5.6
CONDITION OF PROPERTY. SUBJECT TO THE TERMS AND CONDITIONS OF
ARTICLE 9 BELOW, THE PHYSICAL CONDITION OF THE PROPERTY SHALL BE SUBSTANTIALLY
THE SAME ON THE DAY OF CLOSING AS ON THE DATE OF BUYER'S EXECUTION OF THIS
AGREEMENT, REASONABLE WEAR AND TEAR EXCEPTED.
5.7
ACCURACY OF REPRESENTATIONS. ALL OF THE REPRESENTATIONS AND
WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT SHALL HAVE BEEN TRUE AND
CORRECT IN ALL MATERIAL RESPECTS WHEN MADE, AND SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON THE DATE OF CLOSING (AS DEFINED IN SECTION 7.1 BELOW) WITH
THE SAME EFFECT AS IF MADE ON AND AS OF SUCH DATE
5.8
FAILURE OF CONDITIONS. IF ANY CONDITIONS SET FORTH IN THIS
ARTICLE 5 ARE NOT SATISFIED OR WAIVED IN WRITING BY BUYER AT OR PRIOR TO THE
TIMES PRESCRIBED THEREIN, THEN ALL RIGHTS, OBLIGATIONS AND LIABILITIES OF SELLER
AND BUYER UNDER AND PURSUANT TO THIS AGREEMENT SHALL TERMINATE (EXCEPT FOR ANY
OBLIGATIONS OR LIABILITIES UNDER THIS AGREEMENT WHICH SPECIFICALLY SET FORTH
THAT SUCH OBLIGATIONS OR LIABILITIES SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT), AND THE ESCROW AGENT SHALL, WITHOUT FURTHER NOTICE TO OR FROM ANY
PARTY, AND WITHOUT LIABILITY THEREFOR, CANCEL AND TERMINATE THE ESCROW. UPON
SUCH TERMINATION, THE DEPOSIT SHALL BE PAID TO SELLER TO THE EXTENT IT HAS
BECOME NONREFUNDABLE IN ACCORDANCE WITH THIS AGREEMENT, UNLESS THE FAILURE OF A
CONDITION IS CAUSED SOLELY BY SELLER'S BREACH OF A REPRESENTATION, WARRANTY
COVENANT OR OBLIGATION OF SELLER ARISING UNDER THIS AGREEMENT, SUBJECT TO
SECTION 10.2 BELOW (A "SELLER'S BREACH), IN WHICH EVENT THE DEPOSIT SHALL BE
REFUNDED TO BUYER.
5.9
COPIES OF REPORTS. IN THE EVENT OF TERMINATION OF THIS AGREEMENT,
BUYER SHALL PROMPTLY RETURN TO SELLER ALL DOCUMENTS DELIVERED BY SELLER TO BUYER
AND, AFTER TERMINATION OF THIS AGREEMENT FOR ANY REASON OTHER THAN AS A RESULT
OF SELLER'S DEFAULT HEREUNDER, BUYER SHALL PROVIDE COPIES TO SELLER OF ALL
REPORTS AND STUDIES OBTAINED OR DEVELOPED BY BUYER OR BUYER'S CONSULTANTS WITH
RESPECT TO THE PROPERTY AT NO COST TO SELLER, AND DELIVERY OF SUCH DOCUMENTS
SHALL BE A CONDITION TO ANY RIGHT OF BUYER TO A RETURN OF THE DEPOSIT, TO THE
EXTENT REFUNDABLE TO BUYER.
6.
CONDITIONS OF SELLER'S OBLIGATIONS. THE CLOSING AND