IF BUYER
HAS A MERITORIOUS CLAIM UNDER ITS TITLE INSURANCE POLICY AND THE SUBJECT MATTER
OF THAT CLAIM ALSO CONSTITUTES A BREACH OF ANY WARRANTY MADE BY SELLER IN THIS
AGREEMENT OR THE DEED, BUYER AGREES THAT IT WILL LOOK FIRST TO ITS TITLE
INSURANCE POLICY FOR RECOVERY ON SUCH CLAIM, AND BUYER SHALL NOT ASSERT ANY
CLAIM AGAINST SELLER FOR A BREACH OF A REPRESENTATION, WARRANTY OR COVENANT WITH
RESPECT TO SUCH CLAIM UNLESS AND UNTIL BUYER HAS PURSUED ITS REMEDIES AGAINST
THE TITLE COMPANY TO FINAL JUDGMENT AND HAS NOT BEEN MADE WHOLE; PROVIDED,
HOWEVER, THAT BUYER SHALL HAVE THE RIGHT TO FILE AN ACTION AGAINST SELLER PRIOR
TO SUCH FINAL JUDGMENT IF AND TO THE EXTENT NECESSARY TO PREVENT THE EXPIRATION
OF THE SURVIVAL PERIOD (AS DEFINED IN PARAGRAPH 22(C) BELOW) APPLICABLE TO THE
WARRANTY THAT HAS BEEN BREACHED. THE PROVISIONS OF THIS SUBPARAGRAPH (D) SHALL
SURVIVE CLOSING AND DELIVERY OF THE DEED.
(E)
INTENTIONALLY OMITTED.
4
(F)
UPDATED TITLE REPORT AND UPDATED SURVEY.
AT ANY TIME PRIOR TO CLOSING,
BUYER MAY REQUEST THE TITLE COMPANY TO ISSUE UPDATES OR SUPPLEMENTS TO THE TITLE
REPORT.
IF ANY NEW ENCUMBRANCE OR NEW TITLE EXCEPTION IS FIRST REFLECTED ON ANY
UPDATED SURVEY OR ON ANY UPDATE OR SUPPLEMENT TO THE TITLE REPORT (EACH A "TITLE
UPDATE"), BUYER SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO OBJECT TO SUCH NEW
ENCUMBRANCE OR TITLE EXCEPTION UNLESS BUYER SHALL HAVE GIVEN A TITLE NOTICE TO
SELLER WITH RESPECT THERETO ON OR BEFORE THE EARLIER TO OCCUR OF (X) THE
EXPIRATION OF FIVE (5) BUSINESS DAYS AFTER THE RECEIPT BY BUYER OF SUCH TITLE
UPDATE, AND (Y) TWO (2) BUSINESS DAYS PRIOR TO THE CLOSING.
NOTWITHSTANDING THE
FOREGOING OR ANYTHING IN THIS AGREEMENT THAT MAY BE CONSTRUED TO THE CONTRARY,
UNLESS BUYER TERMINATES THIS AGREEMENT PURSUANT TO PARAGRAPH 19(C) HEREOF, BUYER
SHALL BE DEEMED TO HAVE APPROVED ALL MATTERS WHICH WERE DISCLOSED ON THE UPDATED
SURVEY OR WHICH WOULD HAVE BEEN DISCLOSED ON THE UPDATED SURVEY HAD BUYER
OBTAINED AN ACCURATE UPDATED SURVEY PRIOR TO THE EXPIRATION OF THE INSPECTION
PERIOD.
5.
ASSIGNMENT OF
EXISTING AGREEMENTS.
(A)
INTENTIONALLY OMITTED.
(B)
EXISTING AGREEMENTS.
AT CLOSING, PURSUANT TO THE GENERAL ASSIGNMENT AND
ASSUMPTION AGREEMENT, SELLER SHALL ASSIGN TO BUYER, WITHOUT ANY REPRESENTATION
OR WARRANTY WHATSOEVER (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN PARAGRAPH 9
OF THIS AGREEMENT OR IN THE INSTRUMENT OF ASSIGNMENT) TO THE EXTENT ASSIGNABLE,
AND TO THE EXTENT BUYER HAS ELECTED TO HAVE SUCH AGREEMENTS ASSIGNED TO IT, ALL
OF SELLER'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THE EXISTING AGREEMENTS
LISTED ON EXHIBIT "E" HERETO (TOGETHER WITH ANY OTHER AGREEMENTS ENTERED INTO IN
ACCORDANCE WITH THIS SUBPARAGRAPH (B) HEREINAFTER COLLECTIVELY CALLED THE
"EXISTING AGREEMENTS") AND THE RELATED MATERIALS. FOLLOWING THE EFFECTIVE DATE,
SELLER SHALL, NO LATER THAN FIVE (5) BUSINESS DAYS AFTER THE EFFECTIVE DATE,
PROVIDE BUYER WITH COPIES OF ANY AND ALL PROPOSED CONTRACTS, CONTRACT RENEWALS,
CONTRACT MODIFICATIONS AND CONTRACT AMENDMENTS WHICH SELLER PROPOSES TO EXECUTE
WITH