reasonably approved by Seller and Purchaser.
The Deposit (including any
interest earned thereon) shall be applied to the Purchase Price if the Closing
occurs.
In the event that the Closing does not occur by the Closing Date (as
defined below), interest on the Deposit shall be paid to the party entitled to
receive the Deposit in accordance with the terms of this Agreement.
Any taxes
due on such interest income shall be the sole responsibility of Purchaser.
Purchaser will provide to the Escrow Agent a form W-9 for the reporting of such
interest income.
4.
Title and Survey Matters.
4.1
Update of Title and Survey.
Purchaser has
performed all survey diligence that it desires to undertake, and has caused to
be issued a commitment for an owner's policy of title insurance (the "Title
Commitment"), in the amount of the Purchase Price, issued by the Escrow Agent
(the "Title Company"), a copy of which is attached hereto as Exhibit 4.1.
4.2
Approval of Title and Survey.
(A)
AS USED HEREIN, THE TERM "PERMITTED
EXCEPTIONS" MEANS: (I) ALL MATTERS SHOWN ON SCHEDULE B - SECTION 2 OF THE TITLE
COMMITMENT, EXCEPT FOR ITEMS 3 AND 4 (BUT WITH RESPECT TO ITEM 4, SUBJECT TO
CLAUSE (II) BELOW), AND ALL MATTERS THAT WOULD BE SHOWN BY AN ALTA/ACSM SURVEY
OF THE REAL PROPERTY PERFORMED AS OF THE DATE
2
HEREOF; AND (II) ALL MATTERS, WHETHER OR NOT OF RECORD, TO THE EXTENT CAUSED BY
PURCHASER OR ITS AGENTS, REPRESENTATIVES OR CONTRACTORS.
(B)
IF, AFTER THE DATE OF THIS AGREEMENT, TITLE
TO THE REAL PROPERTY BECOMES ENCUMBERED BY ANY MATTER (INCLUDING, WITHOUT
LIMITATION, AN ATTACHMENT OR LIS PENDENS) OTHER THAN A PERMITTED EXCEPTION,
SELLER SHALL USE REASONABLE EFFORTS TO CORRECT ANY SUCH ENCUMBRANCE, EXCEPT THAT
(I) SELLER SHALL IN NO EVENT BE REQUIRED TO BRING SUIT OR OTHERWISE INITIATE ANY
LEGAL PROCEEDINGS TO CLEAR ANY SUCH ENCUMBRANCE AND (II) OTHER THAN FOR ANY
SELLER ENCUMBRANCES (AS DEFINED BELOW), SELLER SHALL NOT BE REQUIRED TO EXPEND
MORE THAN A TOTAL OF TWENTY THOUSAND DOLLARS ($20,000.00) TO CURE SUCH
ENCUMBRANCES.
IF, DESPITE SUCH REASONABLE EFFORTS, SELLER DOES NOT REMOVE (BY
BONDING OR OTHERWISE) ANY SUCH ENCUMBRANCE TO THE REASONABLE SATISFACTION OF THE
TITLE COMPANY ON OR PRIOR TO THE CLOSING DATE (AS THE SAME MAY BE EXTENDED AS
SET FORTH BELOW), THEN PURCHASER SHALL HAVE THE OPTION, EXERCISABLE BY WRITTEN
NOTICE DELIVERED TO SELLER BY 10:00 A.M. ON THE CLOSING DATE, OF EITHER (Y)
ACCEPTING THE TITLE AS IT THEN IS AND CLOSING OR (Z) TERMINATING THIS AGREEMENT,
IN WHICH EVENT THE DEPOSIT SHALL BE RETURNED IMMEDIATELY TO PURCHASER AND SELLER
SHALL REIMBURSE PURCHASER FOR PURCHASER'S DOCUMENTED REASONABLE OUT-OF-POCKET
THIRD PARTY DILIGENCE EXPENSES RELATED TO THE PROPERTY NOT TO EXCEED $25,000,
AND THEREUPON, NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATION OR LIABILITIES
UNDER THIS AGREEMENT, EXCEPT AS OTHERWISE STATED HEREIN.
AS USED HEREIN, THE
TERM "SELLER ENCUMBRANCE" SHALL MEAN (1) ANY MORTGAGE OR DEED OF TRUST OR OTHER
MONETARY LIEN VOLUNTARILY GRANTED OR EXPRESSLY ASSUMED