OF THE TITLE
BENEFIT, (II) THE UNITS, WARRANTY WELLS OR OTHER ASSETS IN EXHIBIT A-1 AFFECTED,
(III) THE ALLOCATED VALUES OF THE UNITS, WARRANTY WELLS OR OTHER ASSETS IN
EXHIBIT A-1 SUBJECT TO SUCH TITLE BENEFIT AND (IV) THE AMOUNT BY WHICH SELLER
REASONABLY BELIEVES THE ALLOCATED VALUE OF THOSE UNITS, WARRANTY WELLS OR OTHER
ASSETS IS INCREASED BY THE TITLE BENEFIT, AND THE COMPUTATIONS AND INFORMATION
UPON WHICH SELLER'S BELIEF IS BASED. SELLER
11
SHALL BE DEEMED TO HAVE WAIVED ALL TITLE BENEFITS OF WHICH IT HAS NOT GIVEN
NOTICE TO PURCHASER ON OR BEFORE THE TITLE CLAIM DATE.
(C)
SELLER SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO ATTEMPT,
AT ITS SOLE COST, TO CURE OR REMOVE AT ANY TIME PRIOR TO CLOSING (THE "CURE
PERIOD"), UNLESS THE PARTIES OTHERWISE AGREE, ANY TITLE DEFECTS OF WHICH IT HAS
BEEN ADVISED IN WRITING BY PURCHASER.
(D)
REMEDIES FOR TITLE DEFECTS.
In the event that any Title Defect is not waived by Purchaser or cured on or
before Closing, Purchaser and Seller shall mutually elect to have one of the
following remedies apply:
(I)
SUBJECT TO THE INDIVIDUAL TITLE
DEDUCTIBLE AND THE AGGREGATE DEFECT DEDUCTIBLE, HAVE THE PURCHASE PRICE REDUCED
BY AN AMOUNT AGREED UPON ("TITLE DEFECT AMOUNT") PURSUANT TO SECTION 3.4(G) OR
SECTION 3.4(I) BY PURCHASER AND SELLER AS BEING THE VALUE OF SUCH TITLE DEFECT,
TAKING INTO CONSIDERATION THE ALLOCATED VALUE OF THE PROPERTY SUBJECT TO SUCH
TITLE DEFECT, THE PORTION OF THE PROPERTY SUBJECT TO SUCH TITLE DEFECT AND THE
LEGAL EFFECT OF SUCH TITLE DEFECT ON THE PROPERTY AFFECTED THEREBY; PROVIDED,
HOWEVER, THAT THE METHODOLOGY, TERMS AND CONDITIONS OF SECTION 3.4(G) SHALL
CONTROL ANY SUCH DETERMINATION;
(II)
INDEMNIFY PURCHASER AGAINST ALL LIABILITY,
LOSS, COST AND EXPENSE RESULTING FROM SUCH TITLE DEFECT PURSUANT TO AN INDEMNITY
AGREEMENT (THE "INDEMNITY AGREEMENT") IN THE FORM ATTACHED HERETO AS EXHIBIT C;
OR
(III)
HAVE SELLER RETAIN THE ENTIRETY OF THE
PROPERTY THAT IS SUBJECT TO SUCH TITLE DEFECT, TOGETHER WITH ALL ASSOCIATED
ASSETS, IN WHICH EVENT THE PURCHASE PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO
THE ALLOCATED VALUE OF SUCH PROPERTY.
In the event that Purchaser and Seller cannot mutually agree upon one of the
foregoing remedies with respect to a Title Defect asserted by Purchaser pursuant
to Section 3.4(a) prior to Closing, then Seller shall, at its sole election,
select the remedy set forth in subsection (i) or (iii) above as the remedy for
such Title Defect.
(E)
WITH RESPECT TO EACH UNIT, WARRANTY WELL OR OTHER ASSET IN EXHIBIT
A-1 AFFECTED BY TITLE BENEFITS REPORTED UNDER SECTION 3.4(B), SUBJECT TO THE
INDIVIDUAL BENEFIT DEDUCTIBLE AND THE AGGREGATE DEFECT DEDUCTIBLE, THE PURCHASE
PRICE SHALL BE INCREASED BY AN AMOUNT (THE "TITLE BENEFIT AMOUNT") EQUAL TO THE
INCREASE IN THE ALLOCATED VALUE FOR SUCH UNIT, WARRANTY WELL OR OTHER ASSET IN
EXHIBIT A-1 CAUSED BY SUCH TITLE BENEFITS, AS DETERMINED PURSUANT TO SECTION
3.4(H).
(F)
SECTION 3.4(D) SHALL BE THE EXCLUSIVE RIGHT AND REMEDY OF
PURCHASER