LIMITED PURPOSE OF DETERMINING THE SPECIFIC DISPUTED TITLE DEFECT
AMOUNTS AND TITLE BENEFIT AMOUNTS SUBMITTED BY EITHER PARTY AND MAY NOT AWARD
DAMAGES, INTEREST OR PENALTIES TO EITHER PARTY WITH RESPECT TO ANY MATTER.
SELLER AND PURCHASER SHALL EACH BEAR ITS OWN LEGAL FEES AND OTHER COSTS OF
PRESENTING ITS CASE. EACH PARTY SHALL BEAR ONE-HALF OF THE COSTS AND EXPENSES OF
THE TITLE ARBITRATOR.
(J)
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THERE SHALL BE NO
ADJUSTMENTS TO THE PURCHASE PRICE OR OTHER REMEDIES PROVIDED BY SELLER FOR TITLE
DEFECTS UNLESS (I) EACH INDIVIDUAL TITLE DEFECT EXCEEDS $20,000 AND (II) THE
AGGREGATE AMOUNT OF ALL UNCURED TITLE DEFECTS EXCEEDS A DEDUCTIBLE IN AN AMOUNT
EQUAL TO 4% OF THE PURCHASE PRICE, AFTER WHICH POINT PURCHASER SHALL BE ENTITLED
TO ADJUSTMENTS TO THE PURCHASE PRICE OR OTHER REMEDIES ONLY WITH RESPECT TO
TITLE DEFECTS IN EXCESS OF SUCH DEDUCTIBLE.
Section 3.5
Consents to Assignment and
Preferential Rights to Purchase.
(A)
SELLER SHALL EXERCISE REASONABLE COMMERCIAL EFFORTS TO OBTAIN ALL
SUCH PERMISSIONS, APPROVALS AND CONSENTS BY GOVERNMENTAL AUTHORITIES AND OTHERS
WHICH ARE REASONABLY OBTAINABLE BY CLOSING AND ARE REQUIRED TO VEST DEFENSIBLE
TITLE TO THE ASSETS IN PURCHASER OR AS MAY BE OTHERWISE REASONABLY REQUESTED BY
PURCHASER.
(B)
IF ANY PREFERENTIAL RIGHTS TO PURCHASE ANY ASSETS ARE EXERCISED
PRIOR TO CLOSING, THOSE ASSETS TRANSFERRED TO A THIRD PARTY AS A RESULT OF THE
EXERCISE OF SUCH PREFERENTIAL RIGHTS SHALL BE TREATED AS IF THOSE ASSETS WERE
SUBJECT TO A TITLE DEFECT THAT RESULTED IN THE COMPLETE LOSS OF TITLE TO SUCH
ASSETS, AND THE PURCHASE PRICE SHALL BE REDUCED UNDER SECTION 2.2(B) BY THE
ALLOCATED VALUE FOR SUCH ASSETS. SELLER SHALL CONVEY SUCH ASSETS TO THE PARTY
EXERCISING THE PREFERENTIAL RIGHT TO PURCHASE, AND SELLER SHALL RETAIN THE
CONSIDERATION PAID BY THE THIRD PARTY FOR SUCH ASSETS.
IN THE EVENT SELLER
RETAINS THE PROPERTY AND CONVEYS THE PROPERTY TO A PARTY EXERCISING A
PREFERENTIAL RIGHT TO PURCHASE
17
PURSUANT TO SECTION 3.5(B), THE PURCHASE PRICE FOR SUCH RETAINED PROPERTY SHALL
NOT BE INCLUDED IN CALCULATING THE SUM OF TOTAL TITLE DEFECTS IN
SECTION 10.1(B).
(C)
IN THE EVENT A TITLE DEFECT RESULTS IN THE COMPLETE LOSS OF TITLE
TO ANY ASSET, THE PURCHASE PRICE SHALL BE REDUCED UNDER SECTION 2.2(B) BY THE
ALLOCATED VALUE FOR SUCH ASSET, AND SELLER SHALL NOT CONVEY SUCH ASSET TO
PURCHASER.
Section 3.6
Casualty or Condemnation Loss.
Subject to the provisions of Sections 8.1(f) and 8.2(f) hereof, if, after the
date of this Agreement but prior to the Closing Date, any portion of the Assets
is destroyed by fire or other casualty or is taken in condemnation or under
right of eminent domain, and the loss as a result of such individual casualty or
taking exceeds four percent (4%) of the Purchase Price, Purchaser shall
nevertheless be required to close and Seller shall elect by written notice to
Purchaser prior to Closing either (i) to cause the Assets affected by any
casualty or taking to be repaired