AND THE COMPANY AGAINST EQUITABLE OR ITS AFFILIATES WITH RESPECT TO ANY
TITLE DEFECT ATTRIBUTABLE TO THE ASSETS.
12
(E)
THE ASSERTED TITLE DEFECT AMOUNT RESULTING FROM AN ASSERTED TITLE DEFECT
SHALL BE DETERMINED AS FOLLOWS:
(I)
IF PMOG AND EQUITABLE AGREE ON THE ASSERTED TITLE DEFECT AMOUNT,
THAT AMOUNT SHALL BE THE ASSERTED TITLE DEFECT AMOUNT;
(II)
IF THE ASSERTED TITLE DEFECT IS AN ENCUMBRANCE WHICH IS
UNDISPUTED AND LIQUIDATED IN AMOUNT, THEN THE ASSERTED TITLE DEFECT AMOUNT SHALL
BE THE AMOUNT NECESSARY TO BE PAID TO REMOVE THE ASSERTED TITLE DEFECT FROM THE
AFFECTED ASSETS;
(III)
IF THE ASSERTED TITLE DEFECT REPRESENTS AN ENCUMBRANCE OF A TYPE
NOT DESCRIBED IN SUBSECTIONS (I) OR (II) ABOVE, THE ASSERTED TITLE DEFECT AMOUNT
SHALL BE DETERMINED BY TAKING INTO ACCOUNT THE VALUE OF THE ASSETS SO AFFECTED,
THE PORTION OF THE ASSETS AFFECTED BY THE ASSERTED TITLE DEFECT, THE LEGAL
EFFECT OF THE ASSERTED TITLE DEFECT, THE POTENTIAL ECONOMIC EFFECT OF THE
ASSERTED TITLE DEFECT OVER THE LIFE OF THE AFFECTED ASSETS, THE VALUES PLACED
UPON THE ASSERTED TITLE DEFECT BY PMOG AND EQUITABLE AND SUCH OTHER FACTORS AS
ARE NECESSARY TO MAKE A PROPER EVALUATION;
(IV)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARTICLE 3, EXCEPT
FOR ADJUSTMENTS REQUIRED BY SECTION 3.4 OR SECTION 3.5, THERE SHALL BE NO CASH
CONTRIBUTION ADJUSTMENT FOR ASSERTED TITLE DEFECTS UNLESS AND UNTIL THE
AGGREGATE ASSERTED TITLE DEFECT AMOUNTS FOR ALL ASSETS FOR WHICH CLAIM NOTICES
WERE TIMELY DELIVERED PURSUANT TO SECTION 3.3(A) EXCEED THREE HUNDRED FIFTY
THOUSAND DOLLARS (US$350,000.00), AND THEN ONLY TO THE EXTENT THAT THE AGGREGATE
ASSERTED TITLE DEFECT AMOUNTS EXCEED THREE HUNDRED FIFTY THOUSAND DOLLARS
(US$350,000.00);
(V)
IF AN ASSERTED TITLE DEFECT OF THE TYPE NOT DESCRIBED IN
SUBSECTIONS (I) OR (II) ABOVE IS REASONABLY SUSCEPTIBLE OF BEING CURED, THE
ASSERTED TITLE DEFECT AMOUNT DETERMINED UNDER SUBSECTIONS (III) ABOVE SHALL NOT
BE GREATER THAN THE LESSER OF (1) THE REASONABLE COST AND EXPENSE OF CURING SUCH
ASSERTED TITLE DEFECT OR (2) THE SHARE OF SUCH CURATIVE WORK COST AND EXPENSE
WHICH IS ALLOCATED TO SUCH ASSETS PURSUANT TO SUBSECTION (VI) BELOW; AND
(VI)
THE ASSERTED TITLE DEFECT AMOUNT WITH RESPECT TO AN ASSET SHALL BE
DETERMINED WITHOUT DUPLICATION OF ANY COSTS OR LOSSES (A) INCLUDED IN ANOTHER
ASSERTED TITLE DEFECT AMOUNT HEREUNDER OR (B) INCLUDED IN A CASUALTY LOSS UNDER
SECTION 3.5.
TO THE EXTENT THAT THE COST TO CURE ANY ASSERTED TITLE DEFECT WILL
RESULT IN THE CURING OF ALL OR A PART OF ONE OR MORE OTHER ASSERTED TITLE
DEFECTS, SUCH COST OF CURE SHALL BE ALLOCATED FOR PURPOSES OF SECTION
3.3(E)(V) AMONG THE ASSETS SO AFFECTED ON A FAIR AND REASONABLE BASIS.
13
(F)
EQUITABLE AND PMOG SHALL ATTEMPT TO AGREE ON ALL ASSERTED TITLE DEFECTS
AND ASSERTED TITLE DEFECT AMOUNTS BY TWO (2) BUSINESS DAYS PRIOR TO THE CLOSING
DATE.
IF EQUITABLE AND PMOG ARE UNABLE TO AGREE BY THAT DATE, THE AVERAGE OF
EQUITABLE'S AND PMOG'S ESTIMATES WITH RESPECT TO THE ASSERTED TITLE