Common use of Remedy for Title Failure Clause in Contracts

Remedy for Title Failure. In the event of any Title Failure (and subject to the closing conditions set forth in Section 10.1(d)), the Company, at its sole election, shall elect to either (A) proceed to the Closing with those portions of the Timberlands that are subject to such Title Failure excluded from the Timberlands to be contributed and conveyed to the Contribution LLC or to the Sale LLC (a “Title Failure Carveout”), or (B) proceed to the Closing with the Contribution LLC or the Sale LLC, as applicable, accepting title (as limited or impacted by the applicable Title Failure(s)) to those portions of the Timberlands that are subject to such Title Failure, in which case such Title Failure shall be deemed to constitute a Permitted Exception. If the Company makes the election under subclause (A) above, then the PC Contribution Amount or the Purchase Price shall be adjusted as set forth in Section 2.2(a). If the Company makes the election under subclause (B) above, then there shall be no adjustment to the PC Contribution Amount or the Purchase Price as a result of such Title Failure or Title Failure Carveout, as applicable. Notwithstanding the foregoing, each Title Failure Carveout in which one of the PC Entities (or one of their Affiliates) has an interest shall be designated in a manner reasonably approved by the Parties, shall contain at least forty (40) acres (or such lesser amount, as reasonably determined by the Parties, if the applicable Title Failure Carveout is within operating proximity of other timberlands owned by Plum Creek and/or its Affiliates which are not included in the Timberlands and such lesser amount will not trigger penalties, fees or “rollback” taxes under applicable property tax current use programs) and shall provide the applicable PC Entity with reasonable access to such Title Failure Carveout.

Remedy for Title Failure. In the event of any Title Failure, Parent’s sole remedy with respect to any such Title Failure (and subject shall be to the closing conditions set forth receive a Purchase Price adjustment as described in Section 10.1(d)), 2.3(b)(iv) and the Company, at its sole election, Buying Parties shall elect to either (A) proceed to the Closing with those portions of the Owned Timberlands or Leasehold Interests that are subject to such Title Failure excluded from the Timberlands to be contributed and conveyed to the Contribution applicable Timber LLC or immediately prior to the Sale LLC Closing (a “Title Failure Carveout”), or (B) proceed to the Closing with the Contribution LLC or the Sale LLC, as applicable, accepting title (as limited or impacted by the applicable Title Failure(s)) to those portions of the Timberlands that are subject to such Title Failure, in which case such Title Failure shall be deemed to constitute a Permitted Exception. If the Company makes the election under subclause (A) above, then the PC Contribution Amount or the Purchase Price shall be adjusted as set forth in Section 2.2(a). If the Company makes the election under subclause (B) above, then there shall be no adjustment to the PC Contribution Amount or the Purchase Price as a result of such Title Failure or Title Failure Carveout, as applicable. Notwithstanding the foregoing, each Title Failure Carveout in which one of the PC Entities (or one of their Affiliates) Seller has an interest shall be designated in a manner reasonably approved by the Parties, shall contain at least forty (40) 40 acres (or such lesser amount, as reasonably determined by the Parties, if the applicable Title Failure Carveout is within operating proximity of other timberlands owned by Plum Creek and/or its Affiliates which are not included in the Timberlands and such lesser amount will not trigger penalties, fees or “rollback” taxes under applicable property tax current use programs) and shall provide the applicable PC Entity Seller with reasonable access to such Title Failure CarveoutCarveout and each Title Failure Carveout affecting a Leasehold Interest shall contain such Leasehold Interest in its entirety, except with respect to the Leasehold Interests listed in Section 2.3(b)(ii) of the Seller’s Disclosure Letter. In the case of a Title Failure Carveout affecting a Leasehold Interest listed in Section 2.3(b)(ii) of the Seller’s Disclosure Letter, each of Seller and Parent shall use all commercially reasonable efforts to obtain an amendment to the applicable Timberland Lease or other remedy to remove from such Leasehold Interest the acreage as to which the Title Failure Carveout relates (with a corresponding Purchase Price adjustment as described in Section 2.3(b)(iv)), and, if such amendment or other remedy cannot be obtained, the entire Leasehold Interest shall be included in the Purchased Assets without amendment and the Purchase Price adjustment for such Title Failure Carveout shall be calculated only with respect to the acreage as to which the Title Failure Carveout relates.