Common use of Damage or Destruction Clause in Contracts

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Court.

Damage or Destruction. Until In the event that the Property should be damaged or destroyed by fire or any other casualty prior to the Closing Date, then Seller shall promptly provide Buyer with written notice of such casualty. If the cost of repairing such damage, as estimated by an architect or contractor retained pursuant to the mutual agreement of the Parties (the “Cost of Repairs”), is (a) less than One Hundred Thousand Dollars ($100,000), then the Closing shall proceed as scheduled and (i) Seller shall cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to be paid over to Buyer (or credited against the Purchase Price) at Closing, (ii) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance relating to the Assets Property at Closing, and (iii) Seller shall remain pay over to Buyer all insurance proceeds collected after the Closing by Seller promptly upon receipt thereof; or (b) greater than One Hundred Thousand Dollars ($100,000), then Buyer may in its discretion either (i) elect to terminate this Agreement, in which case the Deposit shall be returned to Buyer without any further action required from either Party, Buyer and Seller shall each be liable for one-half of any escrow fees or charges and neither Party shall have any further obligation to the other or (ii) proceed as scheduled and (i) Seller shall cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to be paid over to Buyer (or credited against the Purchase Price) at Closing, (ii) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance relating to the risk of SellerProperty at Closing, and (iii) Seller shall pay over to Buyer all insurance proceeds collected after the Closing by Seller promptly upon receipt thereof. In the event that the casualty is uninsured, Buyer may terminate this Agreement unless Buyer receives a credit against the Purchase Price equal to the Cost of Repairs. The foregoing notwithstanding, in the event any casualty results in the cancellation of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such caseLease, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser Buyer shall have the right option to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior terminate this Agreement without regard to the occurrence Cost of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able Repairs. Any notice required to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration terminate this Agreement pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount be delivered no later than thirty (30) days following Buyer’s receipt of Seller’s notice of such reductioncasualty. If The provisions of this Section shall survive the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtClosing.

Damage or Destruction. Until 19.01. If the ClosingBuilding or the Premises or any of the Building systems servicing the Premises shall be partially or totally damaged or destroyed by fire or other casualty or if as a result of any fire or casualty, access to the Assets Premises or the Building is denied or unreasonably interfered with (and if this Lease shall remain not be terminated as in this Article 19 hereinafter provided), (a) Landlord shall, at Landlord’s expense, diligently repair the risk damage to and restore and rebuild the Building and the Premises (excluding Tenant’s Alterations, including without limitation for these purposes, any alterations or improvements by the Tenant first named herein and/or its affiliates under prior leases with respect to the Premises, Specialty Alterations, and all improvements and betterments and the property which is deemed Tenant’s Property pursuant to Section 12.02 hereof) with reasonable dispatch after notice to it of Sellerthe damage or destruction, to substantially the condition which existed immediately prior thereto, and (b) Tenant shall, at Tenant’s expense, repair the damage to and restore and repair Tenant’s Alterations (including without limitation for these purposes, any alterations or improvements by the Tenant first named herein and/or its affiliates under prior leases with respect to the Premises, Specialty Alterations and all improvements and betterments, and the property which is deemed Tenant’s Property pursuant to Section 12.02 hereof) with reasonable dispatch after such damage or destruction. Such work by Tenant shall be deemed Alterations for the purposes of Article 11 hereof. The proceeds of policies providing coverage for Tenant’s Alterations, improvements and betterments that were obtained by Tenant at Tenant’s expense in accordance with Section 9.03 hereof, shall be paid to Tenant and the proceeds of any insurance policies obtained at Landlord’s expense (including those in effect during the last two (2) years of the term of this Lease) that cover Tenant’s Alterations, improvements or betterments shall be paid to Landlord. In the event of any material damage to or destruction of any that during the final two (2) years of the Assets after the date hereof and prior to the Closing (in any such caseterm of this Lease, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to notwithstanding the occurrence of such Damage an event as described in subsection 19.03(c) hereof, this Lease is not terminated by Landlord or Destruction LossTenant, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially Landlord shall apply any proceeds received from any insurance policies covering the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement costTenant’s Alterations, improvements and betterments strictly for the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage Alterations, improvements or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtbetterments.

Damage or Destruction. Until If at any time during the Closing, Term of this Lease the Assets Property or any part thereof shall remain at the risk of Seller. In the event be damaged or destroyed by fire or other casualty (including any casualty for which insurance coverage was required by this Lease but not obtained) of any material damage kind or nature, provided there are adequate insurance proceeds available to or destruction of any of Lessee for such purposes under the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and required by this Lease, or there would have been adequate insurance proceeds available to Lessee if Lessee carried the underlying Asset is not repaired or replaced policies of insurance required by this Lease, Lessee shall rebuild the same to substantially the condition which existed prior to Closing, all right such damage or destruction and claim of Seller this Lease shall continue in full force and effect. If there are not adequate insurance proceeds available to any proceeds Lessee under the policies of insurance for required by this Lease, and there would not have been adequate insurance proceeds available to Lessee if Lessee carried the policies of insurance required by this Lease, then Lessee may elect within ninety (90) days of such Damage or Destruction Loss shall be assigned and casualty by written notice to Lessor, to either (if previously received by Seller and not used a) rebuild the same to substantially the condition which existed prior to the Closing Date to repair any such damage or destructiondestruction (or with such modifications as are reasonably approved by Lessor) paid to Purchaser at Closing in accordance with Section 1.4(b). If which event this Lease shall continue in full force and effect and Lessee shall pay any such Damage or Destruction Loss is cost of rebuilding the Improvements not covered by such policies of insurance, Purchaser or (b) provided Lessee is not then in default hereunder beyond any curative period provided herein, remove all improvements from the Land, at Lessee’s cost and expense, in which event this Lease shall terminate effective as of the date of the removal of such improvements and delivery of the Property to Lessor in accordance with the terms of this Lease. All insurance money paid on account of such damage or destruction of the Property under the policies of insurance provided for in Section 5.01(a) above (herein sometimes referred to as the "Casualty Insurance Proceeds") shall, unless an Event of Default by Lessee then exists hereunder, be available for the payment of the costs of rebuilding or removing the improvements, including temporary repairs for the protection of other property, to the extent such Casualty Insurance Proceeds shall be sufficient for such purpose and, unless an Event of Default by Lessee then exists hereunder, Lessor shall have no claim thereto; provided, however, should Lessee elect to remove all improvements from the right Land and terminate this Lease as permitted above, all such insurance proceeds attributable to reduce the Cash Consideration by an amount equal improvements that are in excess of the cost of removing the improvements shall be paid to (iLessor. Notwithstanding the foregoing, there shall be a reasonable and equitable abatement of Rent for any period(s) if such Assets are in which Lessee is not destroyed or damaged beyond repair and are reasonably able to be repaired operate its business from the Property due to substantially casualty and/or restoration efforts for the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost portion of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss Property that is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtrendered untenantable.

Damage or Destruction. Until In the event that the Property should be damaged or destroyed by fire or any other casualty prior to the Closing Date, then Seller shall promptly provide Buyer with written notice of such casualty. If the cost of repairing such damage, as estimated by an architect or contractor retained pursuant to the mutual agreement of the Parties (the “Cost of Repairs”), is (a) less than One Hundred Thousand Dollars ($100,000), then the Closing shall proceed as scheduled and (i) Seller shall cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to be paid over to Buyer (or credited against the Purchase Price) at Closing (subject to the terms of the Existing Loan Documents), (ii) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance relating to the Property at Closing, and (iii) Seller shall pay over to Buyer all insurance proceeds collected after the Assets Closing by Seller promptly upon receipt thereof; or (b) greater than One Hundred Thousand Dollars ($100,000), then Buyer may in its discretion either (i) elect to terminate this Agreement, in which case the Deposit shall remain be returned to Buyer without any further action required from either Party, Buyer and Seller shall each be liable for one-half of any escrow fees or charges and neither Party shall have any further obligation to the other or (ii) proceed as scheduled and (i) Seller shall cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to be paid over to Buyer (or credited against the Purchase Price) at Closing (subject to the risk terms of Sellerthe Existing Loan Documents), (ii) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance relating to the Property at Closing, and (iii) Seller shall pay over to Buyer all insurance proceeds collected after the Closing by Seller promptly upon receipt thereof. In the event that the casualty is uninsured, Buyer may terminate this Agreement unless Buyer receives a credit against the Purchase Price equal to the Cost of Repairs. The foregoing notwithstanding, in the event any casualty results in the cancellation of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such caseLease, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser Buyer shall have the right option to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior terminate this Agreement without regard to the occurrence Cost of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able Repairs. Any notice required to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration terminate this Agreement pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount be delivered no later than thirty (30) days following Buyer’s receipt of Seller’s notice of such reductioncasualty. If The provisions of this Section shall survive the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtClosing.

Damage or Destruction. Until the Closing, the Assets shall remain at the risk Mortgagor will give Mortgagee prompt notice of Seller. In the event of any material damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Assets after the date hereof Mortgaged Property and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies case of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not loss covered by policies of insurance, Purchaser Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall have be added to and become a part of the right Indebtedness and shall be reimbursed by Mortgagor to reduce Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to substantially a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the same conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition that of at least equal value as existed prior to such Damage damage or Destruction Loss destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at a the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost less than their replacement costof completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the estimated cost disbursing party can verify that the amounts disbursed from time to repair or restore the Assets affected time are represented by such Damage or Destruction Loss to substantially the same condition completed and in place work and that existed immediately said work is free and clear of all mechanics’ lien claims. No payment made prior to the occurrence final completion of such Damage restoration, repair, replacement or Destruction Lossrebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or (ii) if such Assets are destroyed be paid to any person or damaged beyond repair persons otherwise entitled thereto. Application or are release of proceeds under the provisions hereof shall not able to be repaired to substantially the same condition that existed prior to such Damage cure or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration waive any default hereunder or invalidate any act done pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after any notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction default. No interest shall be determined by allowed on account of any such proceeds or other funds held in the Bankruptcy Courthands of Mortgagee or the disbursing party.

Damage or Destruction. Until If the ClosingProject is damaged by fire or other insured casualty, the Assets damage shall remain at be repaired by Landlord and provided such repairs can, in Landlord’s sole opinion, be completed within two hundred seventy (270) days after commencement of the risk necessity for repairs, without the payment of Sellerovertime or other premiums. and until such repairs are completed. rent shall be abated in proportion to the part of the Premises which is unusable by Tenant in the conduct of its business (but there shall be no abatement of rent by reason of any portion of the Premises being unusable for a period equal to one (1) day or less). If repairs cannot, in Landlord’s opinion, be completed within two hundred seventy (270) days after the necessity for repairs this Lease shall instead terminate, by notifying Tenant in writing of such termination within sixty (60) days after Landlord makes such a determination, with such notice to include a termination date giving Tenant sixty (60) days to vacate the Premises. In addition. Landlord may elect to terminate this Lease if the event Project shall be damaged by fire or other casualty or cause, whether or not the Premises are affected. if the damage is not fully covered, except for deductible amounts, by Landlord’s insurance policies. Finally, if the Premises or the Project is damaged to any substantial extent during the last twelve (12) months of the Term, then notwithstanding anything contained in this Article 16 to the contrary. Landlord shall have the option to terminate this Lease by giving written notice to Tenant of the exercise of such option within sixty (60) days after Landlord learns of the necessity for repairs as the result of such damage. A total destruction of the Project shall automatically terminate this Lease. Tenant understands that Landlord will not carry insurance of any material kind on Tenant’s furniture, furnishings, trade fixtures or equipment, and that Landlord shall not be obligated to repair any damage to thereto or destruction of any of replace the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller same. Tenant acknowledges that Tenant shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all have no right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received carried by Seller and not used prior Landlord relating to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtproperty damage.

Damage or Destruction. Until the ClosingIf a "material" part (as hereinafter defined) of any Property is damaged or destroyed by fire or other casualty, the Assets Sellers shall remain notify the Purchaser of such fact and the Purchaser shall have the option to terminate this Agreement upon notice to the Sellers given not later than ten (10) days after receipt of the Sellers' notice; provided, however, that the Purchaser's election shall be ineffective if within ten (10) days after the Sellers' receipt of the Purchaser's election notice, the Sellers shall elect by notice to the Purchaser to repair such damage or destruction and shall thereafter complete such repair within 90 days after the then scheduled Closing Date at the risk time of Sellerthe Purchaser's election. In If the event Sellers make such election to repair, the Sellers shall have the right to adjourn the Closing Date one or more times for up to 90 days in the aggregate in order to complete such repairs and shall have the right to retain all insurance proceeds which the Sellers may be entitled to receive as a result of any material such damage or destruction. Purchaser shall not be obligated to complete Closing unless such repairs shall have been completed within such ninety (90) day period. If (i) the Purchaser does not elect to terminate this Agreement due to the damaged Property, (ii) the Purchaser elects to terminate this Agreement due to the damaged Property but such election is ineffective because the Sellers elect to repair such damage and completes such repair within such 90-day period provided above, or (iii) there is damage to or destruction of an "immaterial" part ("immaterial" is herein deemed to be any damage or destruction which is not "material", as such term is hereinafter defined) of the Property, the Purchaser shall close title as provided in this Agreement and, at the Closing, the Sellers shall, unless the Sellers have repaired such damage or destruction prior to the Closing, (x) pay over to the Purchaser the proceeds of any insurance collected by the Sellers, together with an amount equal to any deductible under the relevant insurance policies, less the amount of all costs incurred by the Sellers in connection with the repair of such damage or destruction, and (y) assign and transfer to the Purchaser all right, title and interest of each of the Sellers in and to any uncollected insurance proceeds which any of the Assets after Sellers may be entitled to receive from such damage or destruction. A "material" part of a Property shall be deemed to have been damaged or destroyed if the date hereof and cost of repair or replacement shall be fifteen percent (15%) or more of the Purchase Price allocable to such Property. Condemnation. If, prior to the Closing Date, all or any "significant" portion (in any as hereinafter defined) of a Property is taken by eminent domain or condemnation (or is the subject of a pending taking which has not been consummated), the Sellers shall notify the Purchaser of such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance fact and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right option to reduce terminate this Agreement upon notice to the Cash Consideration Sellers given not later than ten (10) days after receipt of the Sellers' notice. If the Purchaser does not elect to terminate this Agreement, or if an "insignificant" portion ("insignificant" is herein deemed to be any taking which is not "significant", as such term is herein defined) of a Property is taken by an amount equal eminent domain or condemnation, at the Closing the Sellers shall assign and turnover, and the Purchaser shall be entitled to receive and keep, all awards or other proceeds for such taking by eminent domain or condemnation. A "significant" portion of a Property means (i) 10% or more of the rentable area of the Building(s) on such Land, (ii) a portion of the parking areas if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, taking thereof reduces the estimated cost to repair or restore remaining available number of parking spaces below the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Lossminimum legally required, or (iiiii) if a legally required driveway on such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the AssetsLand. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reductionTermination. If the Purchaser effectively terminates this Agreement pursuant to Section 12.1 or 12.2, this Agreement shall be terminated and the rights of the parties are unable to reach agreement within five (5) Business Days after shall be the same as if notice of the Damage or Destruction Loss is termination were given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtpursuant to Section 14.1.

Damage or Destruction. Until If (i) the ClosingLeased Premises shall be damaged or destroyed by fire or any other peril against which insurance is then customarily carried with respect to premises similar in construction, general location, use and occupancy to the Assets Leased Premises, and (ii) unless this Lease be terminated as hereinafter provided, then (x) the Lessee shall remain immediately give notice of such damage or destruction to the Lessor and Master Lessor and (y) the Lessor shall use reasonable efforts to cause Master Lessor, at the risk Master Lessor's expense, to repair or rebuild the same so as to restore the Leased Premises as nearly as may be reasonable to their condition immediately prior to such damage or destruction; provided, always, that the Master Lessor's obligation so to repair or rebuild shall in no event exceed the scope of Sellerthe work required to be done by the Master Lessor in the original construction of the Leased Premises nor require it to expend more than the net amount recovered by the Master Lessor under the insurance policies in force at the time of such damage or destruction provided that the Leased Premises were then insured against loss or damage by fire and such other perils as were then customarily covered with respect to premises similar in construction, general location, use and occupancy to the Leased Premises, to the extent of at least eighty (80%) percent of the insurable value of the Leased Premises if reasonably obtainable from responsible insurance companies licensed to do business in Maine. If the Leased Premises shall be damaged or destroyed by any cause to the extent of fifty (50%) percent or more of its then insurable value, then the Master Lessor may elect by written notice given to the Lessee from either Master Lessor or Lessor either to terminate this Lease or to repair or rebuild as above provided, in which latter event the Master Lessor's obligation shall in no event exceed the scope of the work required to be done by the Master Lessor in the original construction of the Leased Premises. In the event that the Leased Premises shall be damaged or destroyed by any peril against which insurance of the type described in Paragraph 33 is not carried on the Leased Premises by the Master Lessor and the estimated cost of repairing or rebuilding the Leased Premises by an independent engineer retained by the Master Lessor shall be in excess of Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars, then the Master Lessor may elect by written notice given to the Lessee either to terminate this Lease or to repair or rebuild as above provided. No such termination shall be effective if the Lessee shall elect in writing, within ten (10) days after such event, to so repair or rebuild the Leased Premises and to waive any material abatement of rent provided herein. In no event shall the Master Lessor be required to so repair or rebuild any such damage to or destruction of any which arises after the expiration of the Assets after nineteenth (19th) year of the date hereof and prior to term of the Closing (in any such case, Master Lease from a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss peril which is covered by insured against under policies of insurance and of the underlying Asset is type required to be carried by the Lessor hereunder. During any period that the Lessee cannot repaired or replaced prior to Closingfully occupy the Leased Premises for its business purposes, all right and claim a just proportion of Seller to any proceeds of insurance for such Damage or Destruction Loss the rent shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtabated.

Damage or Destruction. Until the ClosingExcept as provided below, the Assets shall remain at the risk of Seller. In in the event of any material fire or other damage to or destruction the Improvements, Lessee shall take all steps necessary to assure the repair of any such damage and the restoration of the Assets after the date hereof and prior Improvements to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same their condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of damage. All such Damage repairs and restoration shall be completed as promptly as possible. Lessee shall also promptly take all steps necessary to assure that the Leased Premises are safe and that the damaged Improvements do not constitute a danger to persons or Destruction Lossproperty. If Lessee, using reasonable judgment and relying on professional estimates, determines either (a) that full repair and restoration is physically impossible, or (iib) if that the available insurance proceeds will pay for less than eighty percent (80%) of the cost of repair and restoration, (provided Lessee has fulfilled all of the hazard insurance requirements set forth in Section 9.4 above), then Lessee may terminate this Lease by written notice to Lessor given not later than sixty (60) days after the event that caused the damage. However, such Assets are destroyed termination shall not be effective until forty-five (45) days after the date upon which the notice is received by Lessor. During this forty-five-day period Lessor may seek an adjustment from the insurer so as to increase the available insurance proceeds to an amount covering at least eighty percent of the cost of repair and restoration. If successful in securing such adjustment, Lessor may render Lessee’s termination notice null and void by written notice to Lessee within such forty-five-day day period. If Lessor fails to nullify the termination notice in this way, then this Lease shall terminate at the expiration of the forty- five-day period, and any insurance proceeds payable to Lessee on account of such damage shall be paid as provided below. The insurance proceeds shall be paid first to cover any expenses of collecting the proceeds. Remaining proceeds shall be paid to the Lessee (or damaged beyond repair or are not able its Permitted Mortgagee to be repaired the extent required by the Permitted Mortgage) up to substantially the same condition that existed then applicable Lessor’s Purchase Option Price (as of immediately prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost damage) calculated according to the provisions of the AssetsArticle 10 below. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount The balance of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Sellerproceeds, then the amount of the reduction if any, shall be determined by the Bankruptcy Courtpaid to Lessor.

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of that the Property should be damaged or destroyed by fire or any material damage to or destruction of any of the Assets after the date hereof and other casualty prior to the Closing Date, then Seller shall promptly provide Buyer with written notice of such casualty. If the cost of repairing such damage, as estimated by an architect or contractor retained pursuant to the mutual agreement of the Parties (in any such casethe “Cost of Repairs”), a “Damage or Destruction Loss”is (a) less than One Hundred Thousand Dollars ($100,000), then the Closing shall proceed as scheduled and (i) Seller shall give notice thereof cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to Purchaser promptly thereafter. If any such Damage be paid over to Buyer (or Destruction Loss is covered by credited against the Purchase Price) at Closing (subject to the terms of the Existing Loan Documents), (ii) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance and relating to the underlying Asset is not repaired or replaced prior to Property at Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received iii) Seller shall pay over to Buyer all insurance proceeds collected after the Closing by Seller and not used prior to the Closing Date to repair any damage promptly upon receipt thereof; or destruction(b) paid to Purchaser at Closing greater than One Hundred Thousand Dollars ($100,000), then Buyer may in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to its discretion either (i) if such Assets are not destroyed elect to terminate this Agreement, in which case the Deposit shall be returned to Buyer without any further action required from either Party, Buyer and Seller shall each be liable for one-half of any escrow fees or damaged beyond repair charges and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior neither Party shall have any further obligation to the occurrence of such Damage or Destruction Loss, other or (ii) if such Assets are destroyed or damaged beyond repair or are not able proceed as scheduled and (i) Seller shall cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to be repaired paid over to substantially Buyer (or credited against the same condition that existed prior Purchase Price) at Closing (subject to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost terms of the Assets. If Purchaser elects Existing Loan Documents), (ii) Seller shall assign to reduce Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance relating to the Cash Consideration pursuant Property at Closing, and (iii) Seller shall pay over to this Section 4.12, Buyer all insurance proceeds collected after the Closing by Seller and Purchaser shall negotiate in good faith in an effort to agree promptly upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Court.receipt

Damage or Destruction. Until If prior to full payment of the ClosingNotes the Project is destroyed (in whole or in part) or is damaged by fire or other casualty, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss Lessee shall be assigned obligated to continue to pay Rentals, to perform its other obligations and (if previously received by Seller covenants hereunder and not used prior to repair, rebuild or restore the Closing Date to repair any damage property damaged or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that as existed prior to the event causing such Damage damage or Destruction Loss at destruction, with such changes, alterations and modifications (including the substitution and addition of other property) as may be desired by the Lessee and as will not, in the opinion of Independent Counsel, change the character of the Project to such an extent that it ceases to be a cost less than their replacement cost"project" under the Act or (so long as the SIDA Bonds shall be outstanding) the SIDA Act. The Lessee may apply for such purpose so much as may be necessary of any Net Proceeds of insurance resulting from claims for such losses. In the event said Net Proceeds are not sufficient to pay in full the costs of such repair, rebuilding or restoration, the estimated cost to repair or restore Lessee will nonetheless complete the Assets affected by such Damage or Destruction Loss to substantially the same condition work thereof and will pay that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost portion of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate costs thereof in good faith in an effort to agree upon excess of the amount of such reductionsaid proceeds. If the parties are unable to reach agreement within five (5) Business Days after notice The Lessee shall not, by reason of the Damage payment of such excess costs, be entitled to any reimbursement from the IDB or Destruction Loss any abatement or diminution of the Rentals payable hereunder. Any balance of insurance proceeds remaining after payment of all the costs of such repair, rebuilding or restoration shall be paid to the Lessee. Notwithstanding the foregoing, if the Lessee shall determine that such repair, restoration or rebuilding is given by Sellernot, in whole or in part, economically viable, then the amount Lessee may elect to prepay one or more of the reduction Notes in accordance with their terms, in which case the Net Proceeds (or such portion thereof as is allocable to the portion of the Project not being repaired, restored or rebuilt) shall be determined by applied to such prepayment; provided, however, that if the Bankruptcy CourtSIDA Bonds shall at the time bear interest at a Yearly Fixed Rate or the Permanent Fixed Rate (both as therein defined), then such prepayment may occur only if the preconditions set forth therein for extraordinary optional redemption thereof shall have been met. The IDB shall cooperate fully with the Lessee in the handling of any prospective or pending insurance claim with respect to the Project or any part thereof. In no event will the IDB voluntarily settle, or consent to the settlement of, any prospective or pending insurance claim with respect to the Project or any part thereof without the written consent of the Lessee, in its sole discretion.

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of If prior to Closing any material damage to or destruction of any portion of the Assets after the date hereof and prior to the Closing (in any such caseProperty is damaged or destroyed by fire or other casualty, a “Damage or Destruction Loss”) Seller shall immediately give notice thereof to Purchaser promptly thereaftertogether with a good faith estimate of the costs of repair or replacement of such casualty. If any material portion of the Property is damaged or destroyed by such Damage casualty or Destruction Loss is covered by policies such casualty shall be to any structural elements of insurance the improvements on the Property, Purchaser at its option (to be exercised within thirty (30) days after Seller’s notice) may either (a) terminate this Agreement, in which event the Exxxxxx Money shall be returned to Purchaser and neither party hereto shall have any further rights or obligations hereunder other than those which are expressly provided to survive the underlying Asset is not repaired termination hereof, or replaced prior (b) proceed to Closing, all right and claim of in which event Seller agrees to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid pay to Purchaser at the Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies all insurance proceeds which Seller has received as a result of insurance, Purchaser shall have the right to reduce the Cash Consideration by same plus an amount equal to (i) the insurance deductible, if such Assets are not destroyed or damaged beyond repair any, and are able assign to be repaired to substantially Purchaser all insurance proceeds payable as a result of the same condition without Seller replacing or repairing such damage. If such casualty shall not be to any material portion of the Property and shall not be to any structural elements of the improvements on the Property, Purchaser shall proceed to Closing, in which event Seller agrees to pay to Purchaser at the Closing all insurance proceeds which Seller has received as a result of the same plus an amount equal to the insurance deductible, if any, and assign to Purchaser all insurance proceeds payable as a result of the same without Seller replacing or repairing such damage. As used in this Section 10, the term “material portion of the Property” shall mean damage to the Property that existed prior would cost in excess of Fifty Thousand and no/100s Dollars ($50,000.00) to repair based upon a good faith estimate prepared with respect to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtcasualty.

Damage or Destruction. Until the Closing, the Purchased Assets shall remain at the risk of Sellerthe Sellers. In the event of any material damage to or destruction of any of the Assets material Purchased Asset (other than normal wear and tear) after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller ), the Sellers shall give notice thereof to the Purchaser, and if any such Losses would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, Purchaser promptly thereaftershall be entitled to terminate this Agreement upon providing Sellers written notice of such termination. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closinginsurance, all right and claim of Seller the Sellers (or Parent) to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller the Sellers and not used prior to the Closing Date to repair any damage or destruction) paid to the Purchaser at Closing in accordance with Section 1.4(b)Closing. If any such Damage or Destruction Loss is not covered funded by policies of insurance, the Purchaser shall have the right to reduce the Cash Consideration Purchase Price by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Purchased Assets affected by such Damage or Destruction Loss (the “Affected Assets”) to substantially the same repair or restore their condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, Loss or (ii) if such Affected Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement costrepair, the replacement cost of the Affected Assets, and all compensation payable on account of such Loss shall be retained by the Sellers. If the Purchaser elects to reduce the Cash Consideration Purchase Price pursuant to this Section 4.125.4, Seller the Sellers and the Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Sellerthe Sellers, then the amount of the reduction shall be determined by an independent, qualified insurance adjuster selected by the parties (or, if they are unable to agree on such selection, one appointed by the Bankruptcy CourtCourt upon application of either party).

Damage or Destruction. Until If a “material” part (as hereinafter defined) of the ClosingProperty is damaged or destroyed by fire or other casualty, Seller shall promptly notify Purchaser of such fact and, except as hereinafter provided, Purchaser shall have the option to terminate this Agreement by giving written notice to Seller not later than thirty (30) days after receipt of Seller’s notice. If this Agreement is so terminated, the Assets Deposit shall remain at be refunded to Purchaser and thereafter, neither party shall have any further rights, obligations or liabilities hereunder, except for the risk of SellerSurviving Obligations. In the event of any material If there is damage to or destruction of an “immaterial” part (“immaterial” is herein deemed to be any damage or destruction which is not “material,” as such term is hereinafter defined) of the Assets after Property, Purchaser shall close title as provided in this Agreement and, at the date hereof and Closing, Seller shall, unless Seller has repaired such damage or destruction prior to the Closing Closing, (i) cause the net proceeds (if any) of any insurance less the amount of all costs incurred in any connection with the repair of such casedamage or destruction to be paid to Purchaser, a “Damage or Destruction Loss”(ii) Seller shall give notice thereof assign and transfer to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance all right, title and the underlying Asset is not repaired or replaced prior to Closing, all right interest in and claim of Seller to any uncollected insurance proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by any) which Seller and not used prior may be entitled to the Closing Date to repair any receive from such damage or destruction, and (iii) paid grant Purchaser a credit against the Purchase Price in the amount of any deductible under the insurance policy for such Property, to Purchaser at Closing the extent that such deductible has not already been invested in accordance with Section 1.4(b)by Seller toward the restoration of the damage. If any such Damage or Destruction Loss is not covered by policies A “material” part of insurance, Purchaser the Property shall have the right to reduce the Cash Consideration by an amount equal to mean that (i) if such Assets are not twenty-five (25%) percent or more of the gross leaseable area of the Property has been destroyed or damaged beyond repair and are able to be repaired to substantially suffered material casualty damage; or (ii) the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore replace such damaged or destroyed portion of the Assets affected by such Damage or Destruction Loss to substantially Property will exceed 25% of the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior Purchase Price allocated to such Damage or Destruction Loss at a cost less than their replacement costProperty, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given as reasonably estimated by Seller, then the amount of the reduction shall be determined by the Bankruptcy Court.

Damage or Destruction. Until the Closing, the Assets shall remain at Seller bears the risk of Sellerloss of the Property prior to Closing. In Buyer bears the event risk of loss of the Buyer’s equipment and personal property of any material damage type located at the Property, if any, prior to or destruction of Closing. If at any of the Assets after the date hereof and time prior to the Closing (in any such caseportion of the Property is destroyed or damaged by fire or any other casualty whatsoever, a “Damage or Destruction Loss”) Seller shall give prompt written notice thereof to Purchaser Buyer. Seller shall repair such damage as promptly thereafter. If any such Damage or Destruction Loss as is covered by policies reasonably possible following receipt of insurance proceeds (regardless of the adequacy of such insurance proceeds) and diligently pursue the underlying Asset is not repaired or replaced prior repair and restoration of the damaged Property to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used the condition existing prior to the Closing casualty through to Substantial Completion. Notwithstanding the foregoing, Buyer shall have a right to terminate this Agreement within sixty (60) days after Seller provides Buyer with written notice of the occurrence of any such casualty, by serving Seller with a written notice of termination (“Casualty Termination Notice”) if in the General Contractor’s reasonable discretion, Substantial Completion cannot occur on or before the Outside Completion Date as a result of such casualty, (as it may be extended pursuant to repair any damage 19(h)(ii) or destruction) paid to Purchaser at Closing as may be extended by Buyer in accordance with Section 1.4(bthis Agreement). If any such Damage or Destruction Loss is Buyer does not covered by policies of insuranceelect to issue a Casualty Termination Notice, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to within seventy (i70) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to days after the occurrence of any such Damage casualty, Seller shall deliver to Buyer a proposed amendment to this Agreement in form reasonably acceptable to Buyer executed by Seller that, as applicable, extends the Outside Completion Date to a date that would provide Seller with a reasonable period of time to Substantially Complete the Improvements by such extended Outside Completion Date. Buyer shall have absolutely no obligation to enter into such amendment, extend the Outside Completion Date or Destruction Loss, or (ii) if pay any such Assets are destroyed or damaged beyond repair or are not able sums to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the AssetsSeller. If Purchaser elects Buyer fails to reduce the Cash Consideration execute and return such amendment to Seller within ten (10) Business Days after Seller’s delivery of such amendment, then this Agreement shall be deemed terminated. Upon a termination of this Agreement pursuant to this Section 4.1212, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction Escrow shall be determined by canceled, all parties hereto shall be released from further performance of this Agreement (with the Bankruptcy Courtexception of those provisions or Sections which recite that they survive termination of this Agreement), the Escrow Holder shall return the Deposit and all Development Deposits, to Buyer and Escrow Holder shall return to each party any and all documents, if any, which such party has deposited with it.

Damage or Destruction. Until the ClosingExcept as provided below, the Assets shall remain at the risk of Seller. In in the event of any material fire or other damage to or destruction the Improvements, Lessee shall take all steps necessary to assure the repair of any such damage and the restoration of the Assets after the date hereof and prior Improvements to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same their condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence damage. All such repairs and restoration shall be completed as promptly as possible, working in cooperation with Lessor. Lessee shall promptly give written notice of such Damage the damage to Lessor and shall promptly take all steps necessary to assure that the Leased Premises are safe and that the damaged Improvements do not constitute a danger to persons or Destruction Lossproperty. If Lessee, using reasonable judgment and relying on professional estimates, determines either (a) that full repair and restoration is physically impossible, or (iib) if that the available insurance proceeds will pay for less than eighty percent (80%) of the cost of repair and restoration, (provided Lessee has fulfilled all of the hazard insurance requirements set forth in Section 9.4 above), then Lessee may terminate this Lease by written notice to Lessor given not later than sixty (60) days after the event that caused the damage. However, such Assets are destroyed termination shall not be effective until forty-five (45) days after the date upon which the notice is received by Lessor. During this forty-five-day period Lessor may seek an adjustment from the insurer so as to increase the available insurance proceeds to an amount covering at least eighty percent of the cost of repair and restoration. If successful in securing such adjustment, Lessor may render Lessee’s termination notice null and void by written notice to Lessee within such forty-five-day day period. If Lessor fails to nullify the termination notice in this way, then this Lease shall terminate at the expiration of the forty-five-day period, and any insurance proceeds payable to Lessee on account of such damage shall be paid as provided below. The insurance proceeds shall be paid first to cover any expenses of collecting the proceeds. Remaining proceeds shall be paid to the Lessee (or damaged beyond repair or are not able its Permitted Mortgagee to be repaired the extent required by the Permitted Mortgage) up to substantially the same condition that existed then applicable Lessor’s Purchase Option Price (as of immediately prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost damage) calculated according to the provisions of the AssetsArticle X below. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount The balance of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Sellerproceeds, then the amount of the reduction if any, shall be determined by the Bankruptcy Courtpaid to Lessor.

Damage or Destruction. Until 18. 1 If, during the Closingterm of this Lease, or any extensions thereof, the Assets shall remain at the Premises are totally or partially destroyed from a risk of Seller. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and rendering the underlying Asset is not repaired Premises totally or replaced prior to Closingpartially inaccessible or unusable, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss Lessor shall be assigned and (if previously received by Seller and not used prior to restore the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired Premises to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement costconditions they were in immediately before destruction. Such destruction shall not terminate this Lease. If then existing law does not permit restoration, the estimated cost to repair or restore the Assets affected either party may terminate this Lease by such Damage or Destruction Loss to substantially the same condition that existed immediately prior giving notice to the occurrence other party within sixty (60) days of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially destruction. If the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller restoration (determined by fixed price construction bids reasonably approved by Lessee and Purchaser shall negotiate in good faith in an effort to agree upon Lessor) exceeds the amount of such reductionproceeds received from the insurance carrier, Lessor can elect to terminate this Lease by giving notice to Lessee within thirty days after determining that the restoration cost will exceed the insurance proceeds. If Lessor elects to terminate this Lease, Lessee, within thirty (30) days after receiving Lessor's notice to terminate. can elect to pay one-half the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then difference between the amount of insurance proceeds and the reduction cost of restoration, in which case Lessor shall restore the Premises. Any amounts so payable by Lessee shall be determined deposited by Lessee in a fund control or bank disbursement account at such times as may be requested by Lessor's construction lender. If there be no construction lender, Lessee shall make monthly installment payments of one-half of the Bankruptcy Courtexpenses of restoration incurred for the preceding month. Lessor shall give Lessee satisfactory evidence that all sums contributed by Lessee as provided in this section have been expended in paying the cost of restoration. If Lessor elects to terminate this Lease and Lessee does not elect to contribute toward the cost of restoration as provided in this section, this Lease shall terminate.

Damage or Destruction. Until the Closing, the Acquired Assets shall remain at the risk of Sellerthe Sellers. In the event of (i) any material damage to or destruction of any of the Acquired Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) or (ii) any sale or other transfer out of an Acquired Store (other than to another Acquired Store) of any Equipment located in an Acquired Store as of the date hereof (an “Equipment Loss”) the Seller shall give notice thereof to Purchaser the Buyer promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Acquired Asset is not repaired or replaced prior to Closing, all right and claim of Seller the Sellers to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller the Sellers and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser the Buyer at Closing in accordance with Section 1.4(b2.1(i). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser the Buyer shall have the right to reduce the Cash Credit Bid Consideration by an amount equal to (i) if such Affected Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Acquired Assets affected by such Damage or Destruction Loss (the “Affected Assets”) to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Affected Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Affected Assets. In the event of an Equipment Loss, the Buyer shall have the right to reduce the Credit Bid Consideration by an amount equal to the replacement cost of the applicable underlying Equipment. If Purchaser the Buyer elects to reduce the Cash Credit Bid Consideration pursuant to this Section 4.127.10, Seller the Sellers and Purchaser the Buyer shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties Parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss or Equipment Loss is given by Sellerthe Sellers, then the amount of the reduction shall be determined by an independent, qualified insurance adjuster selected by the Parties (or, if they are unable to agree on such selection, one appointed by the Bankruptcy CourtCourt upon application of either the Buyer or the Sellers).

Damage or Destruction. Until (a) If the ClosingPremises shall be wholly or partially damaged or destroyed by fire or other cause, Lessee shall give prompt notice thereof to Lessor and Lessor agrees without unreasonable delay to rebuild, repair and restore the Assets shall remain same at Lessor’s cost and expense to the condition, as nearly as practical, as they were immediately prior to such casualty. Notwithstanding the foregoing, if at the risk time of Sellersuch casualty Lessee or Lessor determines, in its reasonable judgment, that it would take more than one hundred twenty (120) days for Lessor to restore, as aforesaid, then Lessee or Lessor may terminate this Lease on at least thirty (30) days’ prior written notice to the other party as of the date set forth in said notice, with the same force and effect as if said date were the date originally fixed for the termination of the term of this Lease. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered Base Rent and additional rent, if any, paid by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss Lessee shall be assigned and (if previously received refunded by Seller and not used prior Lessor to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insuranceLessee, Purchaser which obligation shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reductionsurvive Lease termination. If the parties are unable to reach agreement within five (5) Business Days after notice agree as to the Base Rent or additional rent to be paid or refunded, or as to the number of anticipated days to restore, they agree that the dispute shall be submitted determined and settled by appraisal as in this Lease set forth. Until the same shall have a completely rebuilt, repaired and restored all Base Rent and additional rent, if any, shall be apportioned and if not paid abated and if paid refunded, according to the part of the Damage Premises thereafter usable by Lessee for the purposes for which they were used immediately prior to such damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtdestruction.

Damage or Destruction. Until (a) If the Closing, the Assets shall remain at the risk of Seller. In the event of Premises or any material damage to or destruction of any part of the Assets after Building is damaged by fire or other casualty and if such damage does not render all or a substantial portion of the date hereof Premises or the Building untenantable, then Landlord shall proceed to repair and restore the same to its prior existing condition with reasonable promptness, subject to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafterreasonable delays for insurance adjustments and delays caused by matters beyond Landlord's control. If any such Damage damage renders all or Destruction Loss is covered a substantial portion of the Premises or the Building untenantable, Landlord shall, with reasonable promptness after the occurrence of such damage and in good faith, estimate the length of time that will be required to substantially complete the repair and restoration of such damage and shall by policies notice advise Tenant of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b)estimate. If any it is so estimated that the amount of time required to substantially complete such Damage repair and restoration will exceed 195 days from the date such damage occurred, then either Landlord or Destruction Loss is not covered by policies of insurance, Purchaser Tenant shall have the right to reduce terminate this Lease as of the Cash Consideration date of such damage upon giving notice to the other at any time within 20 days after Landlord gives Tenant the notice containing said estimate (it being understood that Landlord may, if it elects to do so, also give such notice of termination together with the notice containing said estimate). Unless this Lease is terminated as provided in the preceding sentence, Landlord shall proceed with reasonable promptness and all due diligence to repair and restore the Premises, subject to reasonable delays for insurance adjustments and delays caused by an amount equal matters beyond Landlord's control, and also subject to zoning laws and building codes then in effect. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease (except as hereinafter provided) if such repairs and restoration are not in fact completed within the time period estimated by Landlord, as aforesaid, or within said 195 days, so long as Landlord shall proceed with reasonable promptness and due diligence; provided, however, that if Landlord shall fail to comply with the obligations of the preceding sentence, Tenant may terminate this Lease by prompt written notice given to Landlord before restoration is complete. Notwithstanding anything to the contrary herein set forth: (i) if any such Assets damage rendering all or a substantial portion of the Premises or Building untenantable shall occur during the last year of the Term, then Landlord or Tenant shall have the option to terminate this Lease by written notice to Tenant or Landlord, as the case may be, within 30 days after the date such damage occurred, and if such option is so exercised, this Lease shall terminate as of the date of such damage; (ii) Landlord shall have no duty to repair or restore any Alterations made by or on behalf of Tenant in the Premises or improvements which are not destroyed or damaged beyond repair and are able to then building standard improvements; (iii) Landlord shall not be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss obligated (but may, at a cost less than their replacement costits option, the estimated cost so elect) to repair or restore the Assets affected by Premises or Building if any mortgagee applies proceeds of insurance to reduce its loan balance, and the remaining proceeds, if any, available to Landlord are not sufficient to pay for such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are restoration, provided that if Landlord so elects not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement costrestore, the replacement cost Landlord shall terminate this Lease effective as of the Assets. If Purchaser elects date of the damage by notice given to reduce Tenant; and (iv) Tenant shall not have the Cash Consideration right to terminate this Lease pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon if the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined destruction was caused by the Bankruptcy Courtintentional or negligent act of Tenant, its agents or employees.

Damage or Destruction. Until If a "MATERIAL" part (as hereinafter defined) of the ClosingProperty is damaged or destroyed by fire or other casualty, the Assets Seller shall remain at notify the risk Purchaser of such fact and the Purchaser shall have the option to terminate this Agreement upon notice to the Seller given not later than fifteen (15) days after receipt of the Seller's notice. In If (i) the event of any material Purchaser does not elect to terminate this Agreement as to the damaged Property, or (ii) there is damage to or destruction of an "IMMATERIAL" part ("IMMATERIAL" is herein deemed to be any damage or destruction which is not "MATERIAL", as such term is hereinafter defined) of the Assets after Property, the date hereof and Purchaser shall close title as provided in this Agreement and, at the Closing, the Seller shall, unless the Seller has repaired such damage or destruction prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, (x) pay over to the Purchaser the proceeds of any insurance collected by the Seller, and (y) assign and transfer to the Purchaser all right right, title and claim interest of the Seller in and to any uncollected insurance proceeds which the Seller may be entitled to receive from such damage or destruction plus the applicable deductible amount under the Seller's insurance policy. A "MATERIAL" part of insurance for such Damage or Destruction Loss the Property shall be assigned and (deemed to have been damaged or destroyed if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to of repair or restore replacement shall be five percent (5%) or more of the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction LossPurchase Price, or (ii) if any tenant (other than Equity One, Inc.) could cancel its lease or permanently reduce its rent thereunder and either (1) the time frame provided in such Assets are destroyed tenant's lease for such cancellation or damaged beyond repair rent reduction will not lapse on or are prior to the Closing, or (2) the Seller has not been able to be repaired to substantially the same condition that existed obtain, on or prior to the Closing, written confirmation from any such Damage tenant that such tenant will not seek such lease cancellation or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such rent reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Court.

Damage or Destruction. Until If the Closing, the Assets shall remain at the risk of Seller. In the event of any material damage to Real Property is damaged by fire or destruction of any of the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used other casualty prior to the Closing Date which would cost in excess of One Hundred Thousand Dollars to repair (as determined by the parties in good faith), Buyer may elect one of the following actions: (a) Buyer may terminate this Agreement by written notice to Seller given on or before the Closing Date (in the event of such termination, this Agreement will be of no further effect, the Deposit shall be returned to Buyer, and neither Party will thereafter have any damage further obligation under this Agreement, except for any obligations which expressly survive termination); or destruction(b) if Buyer does not elect to terminate this Agreement, then the Closing will take place as provided in this Agreement without abatement of or reduction in the Purchase Price, and Seller will assign and transfer to Buyer on the Closing Date all of Seller’s right, title and interest in and to all insurance proceeds paid or payable to Purchaser at Seller on account of such fire or other casualty, less such portion thereof as may have been applied to restoration prior to the Closing Date (with Buyer’s approval), if any, and shall give a credit to Buyer against the Purchase Price in accordance with Section 1.4(b)the amount of any applicable policy deductible. If the Real Property or any such Damage part thereof is damaged by fire or Destruction Loss is other casualty prior to the Closing Date which would cost One Hundred Thousand Dollars ($100,00.00) or less to repair (as determined by the parties in good faith), Buyer will not covered by policies of insurance, Purchaser shall have the right to reduce terminate its obligations under this Agreement by reason of such damage or to any reduction in the Cash Consideration by an amount equal Purchase Price, and the Closing will take place as provided in this Agreement, but Seller will assign and transfer to (i) if Buyer on the Closing Date all of Seller’s right, title and interest in and to all insurance proceeds paid or payable to Seller on account of any such Assets are not destroyed fire or damaged beyond repair and are able other casualty, less such portion as may have been applied to be repaired to substantially restoration of the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately Real Property prior to the occurrence of such Damage or Destruction LossClosing Date, or (ii) if such Assets are destroyed or damaged beyond repair or are not able any, and shall give a credit to be repaired to substantially Buyer against the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate Purchase Price in good faith in an effort to agree upon the amount of any applicable policy deductible. Buyer does not bear the risk of loss to the Real Property prior to Closing. Prior to the Closing Date, Seller shall not settle, adjust, or consent or otherwise agree to any insurance settlement, resolution, or dispute without Buyer’s prior written consent (such reductionconsent not to be unreasonably withheld, delayed or conditioned). If Seller shall promptly provide copies of all written information and communication sent and received by Seller pertaining to any insurance claim within the parties are unable scope of this Section 13.1, and shall afford Buyer the opportunity to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtparticipate in all communications and meetings regarding such casualty matter.

Damage or Destruction. Until The BOCES agrees to notify the Closing, Authority and the Assets shall remain at Trustee immediately in the risk case of Seller. In the event of any material damage to or destruction of the Leased Property or any of portion thereof in an amount exceeding $100,000 resulting from fire or other casualty. The Authority agrees that the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any net proceeds of any insurance for relating to such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction, not exceeding $100,000, may be paid directly to the BOCES. In the event the Leased Property or any portion thereof is damaged or destroyed by fire or other casualty and the damage or destruction is estimated to exceed $100,000, the net proceeds of any insurance shall be initially paid directly to the Authority for deposit and application as hereby provided. The BOCES shall within one hundred eighty (180) paid days after such damage or destruction determine whether or not to Purchaser at Closing in accordance with Section 1.4(b)repair, reconstruct, restore or improve the Leased Property and give written notice of such determination to the Authority. If any such Damage the BOCES elects to repair, reconstruct, restore or Destruction Loss is not covered by policies of insuranceimprove the Leased Property it shall proceed forthwith to repair, Purchaser shall have reconstruct, restore or improve the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired Leased Property to substantially the same condition that as it existed prior to the event causing such Damage damage or Destruction Loss at a cost less than their replacement costdestruction. So long as the BOCES is not in default under Section 8.0 1 (a) hereof, any net proceeds of insurance relating to such damage or destruction received by the Authority shall be deposited to the credit of the Construction Fund and applied to payment of the costs of such repairs, reconstruction, restoration or improvement in the same manner and upon the same conditions as set forth in the Resolution for the payment of the Costs of the Project from the Construction Fund. It is further understood and agreed that in the event the BOCES shall elect to repair, reconstruct, restore or improve the Leased Property, the estimated cost BOCES shall complete the repairs, reconstruction, restoration or improvement of the Leased Property. In the event the BOCES elects not to repair repair, reconstruct, restore or restore improve the Assets affected by such Damage or Destruction Loss to substantially Leased Property, the same condition that existed immediately prior net proceeds of any insurance shall be paid to the occurrence Authority, as a prepayment of such Damage the Rentals hereunder, for deposit to the Debt Service Fund and application to the redemption of Outstanding Bonds or Destruction Lossfor payment to the Trustee, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired held by the Trustee, in trust, pursuant to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost Section 12.01 of the Assets. If Purchaser elects to reduce Resolution for the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate payment of Outstanding Bonds in good faith in accordance with the written instructions of an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice Authorized Officer of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtAuthority.

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of If any of the Assets after the date hereof and Improvements are damaged or destroyed prior to Closing and no Tenant(s) of all or a portion of the Closing Property is obligated by the terms of the Lease(s) to repair such damage or destruction, then, by delivering written notice to Seller within three (3) days after Buyer’s receipt of written notice of such damage or destruction and Seller’s reasonable estimate of the costs of repair, Buyer may elect to either (a) terminate this Agreement, or (b) elect to continue this Agreement in any such casefull force and effect, a “Damage or Destruction Loss”) in which case Seller shall give notice thereof assign to Purchaser promptly thereafter. If Buyer at Closing any and all proceeds and/or claims under any applicable insurance coverage and afford Buyer a credit at Closing for any applicable insurance deductible (but only if and to the extent such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset deductible is not repaired or replaced prior to Closingany Tenant’s responsibility under any Lease), all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss Buyer shall be assigned and (if previously received by Seller and not used prior take title to the Closing Date Property subject to such damage and destruction; provided, however, that in the event the cost to repair any such damage or destruction) paid destruction is reasonably estimated by Seller to Purchaser be less than Two Million Dollars ($2,000,000), then Buyer shall have no right to terminate this Agreement, Seller shall assign to Buyer at Closing in accordance with Section 1.4(bany and all proceeds and/or claims under any applicable insurance coverage and afford Buyer a credit at Closing for the uninsured portion of any such claim and any applicable insurance deductible (but only if and to the extent such deductible is not any Tenant’s responsibility under any Lease), and Buyer shall take title to the Property subject to such damage and destruction. If any such Damage or Destruction Loss Buyer fails to deliver written notice to Seller of Buyer’s election within the time period specified in this Paragraph 13, Buyer shall be deemed to have elected alternative (b) above. If Buyer properly delivers written notice to Seller within the time period specified in this Paragraph 13 electing alternative (a) above, and provided Buyer is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed in breach or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement costdefault under this Agreement, the estimated cost Escrow shall be canceled, all parties hereto shall be released from further performance of this Agreement (with the exception of those provisions or paragraphs which survive termination of this Agreement by their terms), and Escrow Holder shall return to repair Buyer all or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost any portion of the Assets. If Purchaser elects Deposit deposited with Escrow Holder (except for the portion constituting the Independent Consideration) and shall return to reduce the Cash Consideration pursuant to this Section 4.12, Seller each party any and Purchaser shall negotiate in good faith in an effort to agree upon the amount of all documents which such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtparty had deposited with it.

Damage or Destruction. Until (a) If the Closing, the Assets shall remain at the risk of Seller. In the event of Premises or any material damage to or destruction of any part of the Assets after Building is damaged by fire or other casualty and if such damage does not render all or a substantial portion of the date hereof Premises or the Building untenantable, then Landlord shall proceed to repair and restore the same to its prior existing condition with reasonable promptness, subject to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafterreasonable delays for insurance adjustments and delays caused by matters beyond Landlord's control. If any such Damage damage renders all or Destruction Loss is covered a substantial portion of the Premises or the Building untenantable, Landlord shall, with reasonable promptness after the occurrence of such damage and in good faith, estimate the length of time that will be required to substantially complete the repair and restoration of such damage and shall by policies notice advise Tenant of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b)estimate. If any it is so estimated that the amount of time required to substantially complete such Damage repair and restoration will exceed 195 days from the date such damage occurred, then either Landlord or Destruction Loss is not covered by policies of insurance, Purchaser Tenant shall have the right to reduce terminate this Lease as of the Cash Consideration date of such damage upon giving notice to the other at any time within 20 days after Landlord gives Tenant the notice containing said estimate (it being understood that Landlord may, if it elects to do so, also give such notice of termination together with the notice containing said estimate). Unless this Lease is terminated as provided in the preceding sentence, Landlord shall proceed with reasonable promptness and all due diligence to repair and restore the Premises, subject to reasonable delays for insurance adjustments and delays caused by an amount equal matters beyond Landlord's control, and also subject to zoning laws and building codes then in effect. Landlord shall have no liability to Tenant, and Tenant shall not be entitled to terminate this Lease (except as hereinafter provided) if such repairs and restoration are not in fact completed within the time period estimated by Landlord, as aforesaid, or within said 195 days, so long as Landlord shall proceed with reasonable promptness and due diligence. Notwithstanding anything to the contrary herein set forth: (i) if any such Assets damage rendering all or a substantial portion of the Premises or Building untenantable shall occur during the last 3 years of the Term, then Landlord shall have the option to terminate this Lease by written notice to Tenant within 30 days after the date such damage occurred, and if such option is so exercised, this Lease shall terminate as of the date of such damage; (ii) Landlord shall have no duty to repair or restore any Alterations made by or on behalf of Tenant in the Premises or improvements which are not destroyed or damaged beyond repair and are able to then building standard improvements; (iii) Landlord shall not be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss obligated (but may, at a cost less than their replacement costits option, the estimated cost so elect) to repair or restore the Assets affected by Premises or Building if any mortgagee applies proceeds of insurance to reduce its loan balance, and the remaining proceeds, if any, available to Landlord are not sufficient to pay for such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are restoration; and (iv) Tenant shall not able have the right to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration terminate this Lease pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon if the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined destruction was caused by the Bankruptcy Courtintentional or negligent act of Tenant, its agents or employees.

Damage or Destruction. Until If all or any part of the ClosingDemised Premises shall be damaged or destroyed by fire or other casualty, this Lease shall continue in full force and effect, unless terminated as hereinafter provided, and Lessor shall repair, restore or rebuild the Assets shall remain Demised Premises to their condition at the risk time of Seller. In the event occurrence of the loss; provided, however, Lessor shall not be obligated to commence such repair, restoration or rebuilding until insurance proceeds are received by Lessor, and Lessor's obligation hereunder shall be limited to the proceeds actually received by Lessor under any insurance policy or policies, if any, which have not been required to be applied towards the reduction of any material damage indebtedness secured by a mortgage or deed to secure debt covering the Shopping Center or destruction of any of the Assets after the date hereof and portion thereof. Lessee agrees to notify Lessor in writing not less than thirty (30) days prior to the Closing date Lessee opens for business in the Demised Premises of the actual cost of all permanent leasehold improvements and betterments installed or to be installed by Lessee in the Demised Premises (in any such casewhether same have been paid for entirely or partially by Lessee), a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafterbut exclusive of Lessee's personal property, movable trade fixtures and contents. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss Similar notifications shall be assigned and given to Lessor not less than thirty (if previously received by Seller and not used 30) days prior to the Closing Date commencement of any proposed alterations, additions or improvements to repair any damage or destruction) paid the Demised Premises by Lessee subsequent to Purchaser at Closing in accordance with Section 1.4(b)the initial construction of the Demised Premises. If Lessee fails to comply with the foregoing provisions, any loss or damage Lessor shall sustain by reason thereof shall be borne by Lessee and shall be paid immediately by Lessee upon receipt of a xxxx therefor and evidence of such Damage loss, and in addition to any other rights or Destruction Loss is not covered remedies reserved by policies of insuranceLessor under this Lease, Purchaser Lessor's obligations under this Article VIII to repair, replace and/or rebuild the Demised Premises shall have be deemed inapplicable and in lieu thereof Lessor may, at its election, either restore or require Lessee to restore the right Demised Premises to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that which existed prior to such Damage loss, and in either case Lessee shall pay the cost of such restoration. Lessee covenants and agrees to reopen for business in the Demised Premises within thirty (30) days after notice from Lessor that the Demised Premises are ready for re-occupancy. No damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior destruction to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able Demised Premises shall allow Lessee to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost surrender possession of the AssetsDemised Premises or affect Lessee's liability for the payment of rents or charges or any other covenant herein contained, except as may be specifically provided in this Lease. If Purchaser elects Notwithstanding anything to reduce the Cash Consideration pursuant to contrary contained in this Section 4.128.1 or elsewhere in this Lease, Seller and Purchaser shall negotiate in good faith in an effort Lessor, at its option, may terminate this Lease on thirty (30) days' notice to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Court.Lessee if:

Damage or Destruction. Until If any of the Improvements shall be destroyed or damaged prior to the Closing, and if either the Assets estimated cost of repair or replacement exceeds Two Million Dollars ($2,000,000.00) or the damage results in a Tenant having the right to terminate one or more of the Leases for space in excess of 10,000 square feet in the aggregate, Purchaser may, by written notice given to Seller within twenty (20) business days after receipt of written notice from Seller of such damage or destruction, elect to terminate this Agreement, in which event the Xxxxxxx Money shall remain at immediately be returned to Purchaser and the risk rights, duties, obligations, and liabilities of Sellerall parties hereunder shall immediately terminate and be of no further force or effect except for those expressly surviving termination under this Agreement. In If Purchaser does not elect to terminate this Agreement pursuant to this Paragraph 18, or has no right to terminate this Agreement (because the event of any material damage to or destruction of any does not exceed $2,000,000.00 or the damage result in a Tenant having the right to terminate one or more of the Assets after Leases for space in excess of 10,000 square feet in the date aggregate), and the sale of the Property is consummated, Purchaser shall be entitled to receive all insurance proceeds paid or payable to Seller by reason of such destruction or damage under the insurance required to be maintained by Seller pursuant to Paragraph 9 hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies less amounts of insurance theretofore received and the underlying Asset is not repaired or replaced applied by Seller to costs actually incurred for restoration excluding any rental loss insurance with regard to periods prior to Closing). From and after the Effective Date, all right and claim of Seller shall not settle or release any damage or destruction claims without obtaining Purchaser's prior written consent in each case not to any be unreasonably withheld. All said insurance proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to by the date of Closing Date to repair any damage or destruction) shall be paid by Seller to Purchaser at Closing in accordance Closing, together with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies the lesser of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if that amount necessary to cover any difference between the amount of such Assets are not destroyed or damaged beyond repair proceeds and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to of repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Lossreplacement, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction deductible under Seller's all-risk property damage insurance policy. In addition, at Closing, Seller shall be determined pay over to Purchaser, and assign to Purchaser, all proceeds of any rent loss insurance for the period of time after the date of Closing. If the amount of said casualty or rent loss insurance proceeds is not settled by the Bankruptcy Courtdate of Closing, Seller shall execute at Closing all proofs of loss, assignments of claim, and other similar instruments in order that Purchaser receive all of Seller's right, title, and interest in and under said insurance proceeds other than for rent loss prior to Closing.

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of that the Property should be damaged or destroyed by fire or any material damage to or destruction of any of the Assets after the date hereof and other casualty prior to the Closing Date, then Seller shall promptly provide Buyer with written notice of such casualty. If the cost of repairing such damage, as estimated by an architect or contractor retained pursuant to the mutual agreement of the Parties (in any such casethe “Cost of Repairs”), a “Damage or Destruction Loss”is (a) less than Two Hundred Thousand Dollars ($200,000), then the Closing shall proceed as scheduled and (i) Seller shall give notice thereof cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to Purchaser promptly thereafter. If any such Damage be paid over to Buyer (or Destruction Loss is covered by credited against the Purchase Price) at Closing, (ii) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance and relating to the underlying Asset is not repaired or replaced prior to Property at Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received iii) Seller shall pay over to Buyer all insurance proceeds collected after the Closing by Seller and not used prior to the Closing Date to repair any damage promptly upon receipt thereof; or destruction(b) paid to Purchaser at Closing greater than Two Hundred Thousand Dollars ($200,000), then Buyer may in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to its discretion either (i) if such Assets are not destroyed elect to terminate this Agreement in its entirety, in which case the Deposit shall be returned to Buyer without any further action required from either Party, Buyer and Seller shall each be liable for one-half of any escrow fees or damaged beyond repair charges and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior neither Party shall have any further obligation to the occurrence of such Damage or Destruction Lossother, or (ii) if such Assets are destroyed or damaged beyond repair or are not able proceed as scheduled and (x) Seller shall cause all collected insurance proceeds, plus the cash amount of all associated deductibles, to be repaired paid over to substantially Buyer (or credited against the same condition Purchase Price) at Closing, (y) Seller shall assign to Buyer all right, title and interest in and to all claims and proceeds Seller may have with respect to all policies of insurance relating to the Property at Closing, and (z) Seller shall pay over to Buyer all insurance proceeds collected after the Closing by Seller promptly upon receipt thereof. In the event that existed prior the casualty is uninsured, Buyer may terminate this Agreement in its entirety unless Buyer receives a credit against the Purchase Price equal to such Damage the Cost of Repairs. The foregoing notwithstanding, in the event any casualty results in the cancellation of, or Destruction Loss at a cost less than their replacement costrental abatement under, any Lease, Buyer shall have the replacement cost option to terminate this Agreement without regard to the Cost of the AssetsRepairs. If Purchaser elects Any notice required to reduce the Cash Consideration terminate this Agreement pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount be delivered no later than thirty (30) days following Buyer’s receipt of Seller’s notice of such reductioncasualty. If The provisions of this Section 10 shall survive the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtClosing. 11.

Damage or Destruction. Until If any of the Improvements shall be destroyed --------------------- or damaged prior to the Closing, and if either the Assets estimated cost of repair or replacement exceeds One Hundred Fifty Thousand Dollars ($150,000.00) or the damage could result in the termination of the Lease, Purchaser may, by written notice given to Seller within twenty (20) days after receipt of written notice from Seller of such damage or destruction, elect to terminate this Agreement, in which event the Xxxxxxx Money shall remain at immediately be returned by Escrow Agent to Purchaser and the risk rights, duties, obligations, and liabilities of Sellerall parties hereunder shall immediately terminate and be of no further force or effect. In If Purchaser does not elect to terminate this Agreement pursuant to this Paragraph 20, or has no right to terminate this Agreement (because the event of any material damage to or destruction of any does not exceed $150,000.00 and could not result in the termination of the Assets after Lease), and the date hereof and prior sale of the Property is consummated, Purchaser shall be entitled to receive all insurance proceeds paid or payable to Seller by reason of such destruction or damage under the insurance required to be maintained by the Tenant pursuant to the Closing Lease (in any such case, a “Damage or Destruction Loss”) less amounts of insurance theretofore received and applied by Seller to costs actually incurred for restoration). Seller shall give notice thereof to Purchaser promptly thereafternot settle or release any damage or destruction claims without obtaining Purchaser's prior written consent in each case. If any such Damage or Destruction Loss is covered by policies of All said insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to by the date of Closing Date to repair any damage or destruction) shall be paid by Seller to Purchaser at Closing in accordance with Section 1.4(b)Closing. In addition, at Closing, Seller shall pay over to Purchaser, and assign to Purchaser, all proceeds of any rent loss insurance for the period of time commencing on the date of Closing. If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage said casualty or Destruction Loss rent loss insurance proceeds is given by Seller, then the amount of the reduction shall be determined not settled by the Bankruptcy Courtdate of Closing, Seller shall execute at Closing all proofs of loss, assignments of claim, and other similar instruments in order that Purchaser receive all of Seller's right, title, and interest in and under said insurance proceeds.

Damage or Destruction. Until (a) If the ClosingProject Improvements shall be damaged or destroyed by fire or any other casualty, whether or not covered by insurance, the Assets Redeveloper, as promptly as practicable, shall remain at either (i) make the risk of Seller. In determination described in subsection (g) below or (ii) repair, restore, replace or rebuild the event of any material damage same to or destruction of any of the Assets after the date hereof as nearly as may be practicable their condition and character immediately prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any , and so that upon completion of such Damage repairs, restoration, replacement or Destruction Loss is rebuilding such Project Improvements shall be of a value not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed value thereof immediately prior to the occurrence of such Damage damage or Destruction Lossdestruction. If the Redeveloper shall elect to construct any such new buildings and improvements, for all purposes of this Lease, any reference to the words “Project Improvements” shall be deemed to also include any such new buildings and improvements and all additions thereto and all replacements and alterations thereof. So long as the Redeveloper is the 100% owner of the Bonds, the Net Proceeds of casualty insurance required by Article VII hereof received with respect to such damage or loss to the Project Improvements shall be disbursed in accordance with the Lender Loan Documents and the PACE Loan Documents so long as such documents contain provisions governing the disbursement of casualty insurance proceeds. If the Redeveloper is not the 100% owner of the Bonds, then the Net Proceeds of casualty insurance required by Article VII hereof payable with respect to such damage or loss to the Project Improvements shall be paid (i) to the Redeveloper if such Net Proceeds are equal to or less than $750,000, or, (ii) if an Event of Default here or under the Indenture shall have occurred and is continuing, to the Trustee, or (iii) if such Assets are destroyed or damaged beyond repair or are not able Net Proceeds exceed $750,000, to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, Trustee. Any amounts received by the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction Trustee shall be determined by held in trust and disbursed in the Bankruptcy Court.following manner:

Damage or Destruction. Until If, during the Closingterm, the Assets premises or the improvements or fixtures thereon are destroyed or damaged in whole or in part by fire or other cause, lessee shall remain give Lessor immediate notice, and Lessee, at its own cost and expense, shall cause the risk prompt repair, replacement and rebuilding of Sellersame ("restoration"), subject without limitation to Sections 5.2 and 5.3 of this Lease. Lessor shall in no event be called upon to repair, replace or rebuild any such buildings, fixtures or personalty, nor to pay any of the costs or expenses thereof beyond or in excess of any insurance proceeds made available to Lessee under this Lease. All insurance proceeds on account of such damage or destruction shall be applied to pay or reimburse Lessee for the payment of the cost of restoration of the building and other leasehold improvements on the premises, including the cost of temporary repairs or for the protection of the premises pending the completion of permanent restoration. In the event of any material substantial damage to or destruction of any (hereinafter defined), Twenty Five Thousand Dollars ($25,000.00) of the Assets after insurance proceeds shall be disbursed by the date hereof insurer directly into an escrow account with an escrowee reasonably acceptable to Lessor and prior Lessee, with such sum to be distributed to Lessee upon the furnishing of proof reasonably satisfactory to Lessor of lien free completion of the restoration, but to be distributed to lessor upon any default by Lessee with respect to the Closing restoration (such escrow amount in no way to limit Lessee's liability for any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(bdefault). If the insurance proceeds and other funds deposited with Lessor or the applicable mortgage, less the actual cost, fees and expenses, if any, incurred in connection with the adjustment of the loss, are insufficient to pay the entire cost of the restoration, Lessee will pay the deficiency. During restoration, Lessee shall continue the operation of its business within the premises to the extent practicable, this Lease shall terminate, nor shall rental and other charges payable under this Lease be abated or affected in any such Damage manner. Notwithstanding the foregoing in this Section 5.8, if the building and other leasehold improvements on the premises shall be substantially damaged (fifty percent (50%) or Destruction Loss is not covered more of the insurable value of the building) or destroyed by policies fire, windstorm, or otherwise, within the last year of insurancethe term of this Lease, Purchaser as same may be extended pursuant to Section 2.2, either party shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition terminate this Lease, provided that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior notice thereof is given to the occurrence other party not later than sixty (60) days after such damage or destruction. If said right of termination is exercised, this Lease and the term hereof shall cease and come to an end as of the date of such Damage damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able destruction and the herein referenced insurance proceeds shall belong solely to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtLessor.

Damage or Destruction. Until the Closing, the Purchased Assets shall remain at the risk of Sellerthe Selling Entities. In the event of any material damage to or destruction of any of the Assets Purchased Asset listed on Schedule 7.16 after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) ), the Seller shall give notice thereof to Purchaser promptly thereafterthe Buyer. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior by a similar facility in reasonable proximity to Closingany former facility, all right and claim of Seller the Selling Entities to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller the Selling Entities and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser the Buyer and/or a Buyer Designee at Closing in accordance with Section 1.4(b2.1(q). If any such Damage or Destruction Loss is not covered by policies of insurance (not considering any deductible payable with respect to any policy of insurance), Purchaser the Buyer shall have the right to reduce the Cash Consideration Closing Payment by an amount equal to the lesser of (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Purchased Assets affected by such Damage or Destruction Loss (the “Affected Assets”) to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Affected Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the AssetsAffected Assets for a similar facility in reasonable proximity to the former facility, and the amount of the Closing Payment reduction on account of such Damage or Destruction Loss shall be retained by the Sellers. If Purchaser the Buyer elects to reduce the Cash Consideration Closing Payment pursuant to this Section 4.127.16, the Seller and Purchaser the Buyer shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Sellerthe Selling Entities, then the amount of the reduction shall be determined by an independent, qualified insurance adjuster selected by the Parties (or, if they are unable to agree on such selection, one appointed by the Bankruptcy CourtCourt upon application of either Party).

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement 31 cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Court.. 4.13

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event the improvements on the demised premises are damaged or destroyed, then Lessee shall repair and restore the improvements then owned by Lessor and this lease shall continue in full force and effect and Lessee shall commence such repair or rebuilding with reasonable diligence and shall prosecute and complete such repair and rebuilding with reasonable diligence, provided, however, that any delay in the completion of said repairs resulting from fire or other casualty, strikes, shortages of material or labor, governmental laws, rules and regulations, the elements or matters beyond the reasonable control of Lessee shall extend the time within which Lessee may complete said repairs or rebuilding by the period of such delay. There shall be no abatement of rental by reason of such damage or destruction or the time required to repair or rebuild. The net proceeds of any material insurance maintained in force at the expense of Lessee, with the proceeds thereof payable to Lessor or any encumbrancer shall, except for any portion thereof required by any encumbrancer to pay current installments due on any encumbrance, be made available to Lessee to be applied to the cost and expense of repair or rebuilding the damage to or destruction of insured, subject to reasonable conditions and payable on the usual architect's. certificates, but Lessor or any encumbrancer holding said insurance proceeds may withhold until completion and the expiration of the Assets after period exist an amount reasonably necessary to insure completion of such repairs or destruction. Any amount required to complete such repair or rebuilding in excess of the date hereof and prior insurance proceeds payable to the Closing (in any Lessee hereunder shall be paid by Lessee before such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafterinsurance proceeds are used. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any said net proceeds of insurance are not made available to Lessee as herein provided within thirty days after written demand therefor served upon Lessor or any encumbrancer holding said proceeds, Lessee may terminate this Lease and be released from its obligation to further repair or rebuild. The preceding sentence shall not apply to any portion of said insurance proceeds which may be withheld by Lessor or any encumbrancer until expiration of the period within which mechanics' or materialmen's liens may be filed as hereinbefore provided, unless and until the said period for such Damage or Destruction Loss liens has expired and the written demand provided for herein shall be assigned served upon Lessor and (any encumbrancer holding said insurance proceeds or any part thereof. The option of Lessee to terminate this Lease after said thirty day written demand may be exercised only if previously received by Seller and the funds demanded are properly then due Lessee under the terms of this Lease. Lessor, after the commencement of the term of this Lease, shall not used prior be required to make any expenditures whatsoever in connection with this Lease, including the Closing Date to work of repair any damage or destruction) paid to Purchaser at Closing specified in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction LossExhibit "B", or (ii) if such Assets are destroyed to make any alterations or damaged beyond repair or are not able repairs to be repaired to substantially maintain the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, demised premises in any way during the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtterm hereof.

Damage or Destruction. Until If the Closing, the Assets shall remain at the risk of Seller. In the event of whole or any material damage to or destruction of any part of the Assets after Initial Improvements and other Improvements used for the date hereof Permitted Uses are damaged or destroyed by any cause whatsoever, whether insured or uninsured, at any time during the Term of this Lease, Tenant shall, irrespective of insurance proceeds, promptly commence to replace or repair such Improvements or any part thereof that is damaged or destroyed, and complete such repair and/or restoration with due diligence and at its sole cost and expense, with such changes, alterations or modifications as are reasonably determined by Tenant so long as such changes, alterations or modifications (a) do not diminish the overall utility for the Permitted Uses, and (b) are reasonably comparable to the quality of the Improvements that existed prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) . The parties recognize that such damage or destruction may require emergency replacement or repair. Subject to the rights of the Permitted Institutional Mortgagees, Tenant will be entitled to all insurance proceeds in order to effect such replacement, modifications or alterations. Notwithstanding the foregoing, in the event that the Improvements are substantially damaged, and the insurance proceeds are required to be paid to Purchaser at Closing in accordance with Section 1.4(bany Permitted Institutional Mortgagee to repay the indebtedness secured by the Permitted Institutional Mortgage, Tenant’s obligation to rebuild the Premises (other than the Excluded Areas, for which there is no such obligation to rebuild under this Lease) shall be limited to the amount of the proceeds received by Tenant from the insurer (the “Remaining Proceeds”). If any in such Damage case Tenant reasonably determines that the continued use of the Premises after such replacement and repair in substantially the same manner as conducted by Tenant prior to such damage or Destruction Loss is destruction will not covered be economic and feasible, Tenant may elect not to repair or replace the damaged Improvements and terminate this Lease by policies of insurancegiving Landlord one hundred eighty (180) days written notice thereof, Purchaser specifying the reasons for such termination, provided however that in such event Tenant shall have the right to reduce the Cash Consideration by an amount equal to (i) if use all or such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost portion of the AssetsRemaining Proceeds as is reasonably necessary to prevent any imminent danger to or at any buildings on the Premises, and (x) at Landlord’s request, Tenant shall demolish any destroyed buildings and secure any damaged buildings, in each case to a safe condition reasonably satisfactory to Landlord and in compliance with the Legal Requirements, and (y) deliver to Landlord the Remaining Proceeds minus the reasonable costs of any such prevention of imminent danger, demolishing and/or securing of buildings and assign to Landlord all its right, title and interest to any other insurance proceeds as may be available. If Purchaser elects to reduce Tenant’s rights and obligations under this Article 11 shall survive the Cash Consideration pursuant to termination of this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtLease.

Damage or Destruction. Until If prior to full payment of the ClosingBonds, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior to the Closing Project is destroyed (in any such casewhole or in part) or is damaged by fire or other casualty, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss Company shall be assigned obligated to continue to pay Rentals, to perform its other obligations and (if previously received by Seller covenants hereunder and not used prior to repair, rebuild or restore the Closing Date to repair any damage property damaged or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that as existed prior to the event causing such Damage damage or Destruction Loss at destruction, with such changes, alterations and modifications (including the substitution and addition of other property) as may be desired by the Company and as will not, in the opinion of Bond Counsel, impair the character of the Project as a cost less than their replacement cost“project” under the Act or as qualifying facilities under Section 144(a)(12)(C) of the Code. The Company may apply for such purpose so much as may be necessary of any Net Proceeds of insurance resulting from claims for such losses. In the event said Net Proceeds are not sufficient to pay in full the costs of such repair; rebuilding or restoration, the estimated cost to repair or restore Company will nonetheless complete the Assets affected by such Damage or Destruction Loss to substantially the same condition work thereof and will pay that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost portion of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate costs thereof in good faith in an effort to agree upon excess of the amount of such reductionsaid Net Proceeds. If the parties are unable to reach agreement within five (5) Business Days after notice The Company shall not, by reason of the Damage payment of such excess costs, be entitled to any reimbursement from the IDB or Destruction Loss any abatement or diminution of the Rentals payable hereunder. Any balance of Net Proceeds remaining after payment of all the costs of such repair, rebuilding or restoration shall be paid to the Company. Notwithstanding the foregoing, if the Company shall determine that such repair, restoration or rebuilding is given by Sellernot, in whole or in part, economically viable, then the amount Company may exercise its option to redeem Bonds in accordance with their terms, in which case the Net Proceeds (or such portion thereof as is allocable to the portion of the reduction Project not being repaired, restored or rebuilt) shall be determined by applied to such redemption. The IDB shall cooperate fully with the Bankruptcy CourtCompany in the handling of any prospective or pending insurance claim with respect to the Project or any part thereof. In no event will the IDB voluntarily settle, or consent to the settlement of, any prospective or pending insurance claim with respect to the Project or any part thereof without the written consent of the Company, in its sole discretion.

Damage or Destruction. Until All risk of loss with respect to the Closing, the Assets Properties shall remain at with Seller until the Closing and delivery of the Deeds vesting title in Buyer, when full risk of Sellerloss with respect to the Properties shall pass to Buyer. In the event Seller shall promptly give Buyer written notice of any material damage to or destruction any Property, describing such damage, whether such damage is covered by insurance and the estimated cost of any of repairing such damage. If such damage is not material, then the Assets after parties shall proceed to close this transaction, and Seller shall, to the date hereof and extent possible, begin repairs prior to the Closing (in out of any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller for the damage, and shall transfer and assign any remaining insurance proceeds or rights thereto to Buyer at the Closing. If such damage is material, Buyer may elect (in its sole discretion) by notice to Seller given within ten (10) days after Buyer is notified of such damage (and the Closing shall be extended, if necessary, to give Buyer such ten (10) day period to respond to such notice) to proceed in the same manner as in the case of damage that is not used prior material or to terminate this Agreement with respect to the Closing Date damaged Property, in which event Buyer shall close the transaction with respect to the unaffected Properties, and the Purchase Price shall be reduced by the amount of the Individual Purchase Price for the damaged Property. Damage as to any one or multiple occurrences for a particular Property is material if the cost to repair any damage or destruction) paid the damage, as reasonably estimated by Seller’s contractor (if Seller has engaged a contractor to Purchaser at Closing in accordance with Section 1.4(bperform the work), and otherwise by a contractor approved by both Buyer and Seller, acting reasonably, exceeds $250,000. If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser Buyer further shall have the right to reduce characterize damage as material if the Cash Consideration by an amount equal damage entitles either the Tenant under the Lease or the tenant under the Starbucks Lease to (i) if such Assets are not destroyed terminate their respective lease or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtxxxxx rent.

Damage or Destruction. Until If the ClosingPremises shall be damaged or destroyed by fire, the Assets elements, unavoidable accidents, or other casualty, whereby the Premises are rendered substantially or wholly untenantable, Landlord may, at its option cause such damage to be properly repaired, and the Base Rent and Additional Rent shall remain at meanwhile be abated during such repairs, or Landlord may terminate the risk of SellerLease. In addition, if any damage cannot be repaired within one hundred eighty (180) days of said occurrence, then Landlord and Tenant shall each have the event option of any material terminating this Lease in writing, whereby after all Base Rent, Additional Rent, and additional charges hereunder shall have been paid to the date of damage, there shall be no further liability upon either party. If the Premises shall be so damaged or destroyed as to not rendered the Premises substantially or wholly untenantable, then Landlord shall cause such damage to be properly repaired and Tenant shall be entitled to a temporary or equitable reduction in Base Rent and Additional Rent during the repair period following such damage or destruction via an abatement of any Rent for such portion of the Assets after Premises that is damaged and unusable by Tenant in a manner reasonably comparable to the date hereof and use of such space prior to the Closing (in any such case, a “Damage or Destruction Loss”) Seller casualty. Notwithstanding the foregoing. Tenant agrees and acknowledges that Landlord’s responsibility to make the foregoing repairs is specifically limited to those portions of the Premises existing on the Effective Date and shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller apply to any proceeds of insurance for such Damage improvements or Destruction Loss shall be assigned and (if previously received by Seller and not used prior alterations made to the Closing Date to repair Premises by the Tenant, Landlord or any damage or destruction) paid to Purchaser at Closing other party after the Effective Date. In addition, notwithstanding anything contained in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior this section to the occurrence of such Damage or Destruction Losscontrary, or (ii) if such Assets are destroyed or damaged beyond repair or are not able Tenant agrees and acknowledges that Landlord’s responsibility to be repaired make the repairs above is specifically limited to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given insurance proceeds, if any, actually recovered by Seller, then the amount of the reduction shall be determined by the Bankruptcy CourtLandlord.

Damage or Destruction. Until In the Closingevent the leased premises shall be damaged or destroyed by fire or other casualty, the Assets LESSOR hereby agrees that it shall, subject to delays which may arise by reason of adjustment of loss under insurance policies and except as otherwise provided in this Lease, promptly commence the complete restoration or replacement of same (except for leasehold improvements hereafter made by LESSEE which shall remain be LESSEE's responsibility) to a tenantable condition at least as good as, or better than, the risk condition of Sellersaid premises prior to the happening of such fire or other casualty. If the LESSOR shall not cause said restoration or replacement to be substantially completed and the said premises made ready for occupancy within 180 calendar days after the date of such fire or other casualty, provided, however, that LESSOR shall have an additional number of calendar days over and above said 180 calendar days equal to the number of calendar days that LESSOR is actually delayed in said completion by reason of any "force majeure", as that term is hereinafter defined, then LESSEE shall have the option of terminating this lease by giving written notice to LESSOR of its intention to do so, and such termination shall be deemed to be effective upon the date such notice is received by LESSOR. Additionally, during the time said leased premises are being restored or replaced and until completion thereof, the LESSEE's Minimum Rent, other than Percentage Rent, shall be proportionately and equitably reduced based upon the total usable space remaining available to LESSEE for the operation of its business. In the event of that the leased premises shall at any material time be substantially or wholly damaged or destroyed by fire or other casualty (meaning damage equal to fifty percent (50%) or destruction of any more of the Assets after full value of the date hereof replacement cost thereof), and prior to such damage shall occur at a time when there is less than one (1) year of said primary lease term or any renewal term remaining, the Closing (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser LESSOR shall have the right to reduce the Cash Consideration option of terminating this lease by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior giving written notice to the occurrence LESSEE within sixty (60) calendar days after the happening of such Damage fire or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able other casualty of its intention to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reductiondo so. If the parties are unable LESSOR shall not give to reach agreement within five (5) Business Days after the LESSEE such written notice of termination within the Damage or Destruction Loss is given by Selleraforesaid prescribed time, then the amount of the reduction it shall be determined by presumed and binding upon said LESSOR that LESSOR does not intend to terminate this lease and, from and thereafter, LESSOR shall not have such right of termination. Additionally, after the Bankruptcy Courtelapse of said sixty (60) calendar days period and without the LESSOR having given notice of termination as aforesaid, the LESSOR shall as aforesaid promptly commence the complete restoration or replacement of said premises.

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of If any of the Assets after the date hereof and Properties is Materially Damaged (as hereinafter defined) by a casualty prior to the Closing (in any such casea Closing, a “Damage or Destruction Loss”) Seller shall give Purchaser prompt written notice thereof thereof, and on or before the earlier of five (5) business days after receipt of written notice or the Closing Date, Purchaser may elect to Purchaser promptly thereafterexclude said Materially Damaged Property from the transaction contemplated by this Agreement and the Purchase Price shall be reduced by an amount that is equal to the Allocated Purchase Price of such Materially Damaged Property. If any such Damage or Destruction Loss is covered by policies of insurance and a casualty does not result in the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insuranceapplicable Property being Materially Damaged, Purchaser shall have the no right to reduce exclude such Property from the Cash Consideration transaction, but shall be entitled to retain any Materially Damaged Property as part of the Properties being acquired, the Purchase Price shall not be reduced and Seller shall assign to Purchaser all rights of Seller in and to any insurance proceeds payable thereafter with respect to such Materially Damaged Property and shall receive a credit against the Purchase Price in an amount of any deductible related to the insurance for such damaged Property. If a casualty results in the applicable Property being Materially Damaged and Purchaser fails to provide Seller with notice of exclusion of such Property, then such Property shall be excluded from the transaction and the Purchase Price shall be reduced by an amount that is equal to the Allocated Purchase Price of such Materially Damaged Property. Upon a casualty, a Property shall be considered “Materially Damaged” if the cost of repair of such damage or destruction is reasonably estimated by Seller to exceed twenty-five percent (i25%) if or more of the value of such Assets are not destroyed or damaged beyond repair and are able Materially Damaged Property (such value to be repaired to substantially the same condition that existed prior to Allocated Purchase Price for such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtindividual Property).

Damage or Destruction. Until Subject to all the terms of this Agreement, in the event of any damage to or destruction of the Project prior to the Closing, which in Seller’s good faith estimate will cost less than One Hundred and Fifty Thousand and 00/100 Dollars ($150,000.00), to repair, the Assets Closing shall remain at nevertheless occur as otherwise provided for in this Agreement (and Seller shall have no obligation to repair such damage) except that Seller shall assign to Buyer upon the risk Closing all insurance proceeds paid or payable to Seller in connection with such occurrence and provide Buyer with a credit against the Purchase Price in the amount of any deductible or any amount not covered by insurance; and if such damage or destruction is the result of an uninsured casualty, which in Seller’s good faith estimate will cost less than One Hundred and Fifty Thousand and 00/100 Dollars ($150,000.00), to repair, then Seller shall provide Buyer with a credit against the Purchase Price in the amount of such estimated cost to repair. In the event of any material damage to or destruction of any the Project prior to the Closing, which in Seller’s good faith estimate will cost One Hundred and Fifty Thousand and 00/100 Dollars ($150,000.00), or more to repair, Seller shall have no obligation to repair such damage or destruction, but Seller shall promptly notify Buyer of such damage and within ten (10) business days after receipt of such notice (but not later than two (2) business days before the Assets after Closing Date), Buyer shall deliver written notice to Seller and Escrow Holder, electing either: (i) to proceed with this transaction and the date hereof and Closing in accordance with this Agreement notwithstanding such damage or destruction; or (ii) to terminate this Agreement; provided, however, that if such notice is delivered by Seller to Buyer within two (2) business days prior to the Closing Date, then Buyer may elect to proceed or to terminate this Agreement at any time up to and including the Closing Date. If Buyer elects to proceed (in any and Buyer’s failure to timely deliver such casewritten notice of termination to Seller and Escrow Holder shall be deemed to constitute Buyer’s election to proceed), a “Damage or Destruction Loss”) then Seller shall give notice thereof assign to Purchaser promptly thereafterBuyer upon Closing all insurance proceeds paid or payable to Seller in connection with such occurrence and provide Buyer with a credit against the Purchase Price in the amount of any deductible in the case of an insured loss. If any Buyer does exercise such Damage or Destruction Loss is covered termination right by policies timely delivering such written notice of insurance and the underlying Asset is not repaired or replaced prior termination to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insuranceEscrow Holder, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to then: (i) if such Assets are not destroyed or damaged beyond repair this Agreement and are able to the rights of Buyer and Seller hereunder shall terminate and be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or no further force and effect except for any surviving obligations; (ii) if Escrow Holder shall return the Xxxxxxx Money Deposit to Buyer and shall return to each party which placed such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially items in Escrow all other funds (and any interest thereon) and documents held by Escrow Holder on the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost date of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, termination; and (iii) Buyer and Seller shall each bear one-half (1/2) of any Escrow and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courttitle cancellation fees.

Damage or Destruction. Until (a) The receipts and recoveries of insurance carried pursuant to Section 5.06 shall be applied as provided in this Section 7.01 and the Closing, the Assets shall remain at the risk of SellerGround Lease. In the event that all or any part of any material the Project Facilities is destroyed in whole or damaged by fire or other casualty requiring more than $250,000 for rehabilitation and reconstruction, the Company shall by notice given pursuant to Section 10.01, notify the Trustee and the Issuer within 30 days of said occurrence as to whether or not the Project Facilities, or the damaged or destroyed portion thereof, shall be reconstructed and reequipped. If the damage to or destruction of any does not exceed $250,000, the Company shall be obligated to reconstruct and reequip the Project Facilities and shall apply the Net Insurance Proceeds, with the consent of the Assets after Issuer, to such reconstruction and reequipping. To the date hereof extent the Net Insurance Proceeds exceed $250,000, the Company shall elect that the Project Facilities or some portion thereof be reconstructed and reequipped, (i) all Net Insurance Proceeds with respect to the Project Facilities shall be paid to the Trustee for deposit in a separate account in the Construction Fund and application in accordance with this Section 7.01, or if no 1999 Series A Bonds applicable to such destroyed or damaged Project Facilities are Outstanding, shall be so applied by the Company and (ii) the Company will promptly use its best efforts and proceed with reasonable speed and dispatch to reconstruct and reequip the applicable Project Facilities in accordance with the Plans and Specifications to a condition equivalent to that immediately prior to the Closing event of damage or destruction (in any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller subject to any proceeds of insurance for such Damage or Destruction Loss shall be assigned changes, modifications, additions and (if previously received by Seller deletions which the Company desires and not used prior to which the Closing Date to repair any damage or destruction) paid to Purchaser at Closing Issuer consents in accordance with Section 1.4(b). If 3.01(c) hereof) and will apply for such purposes so much as may be necessary of any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have Net Insurance Proceeds. In the right to reduce event that the Cash Consideration by an amount equal to (i) if such Assets Net Insurance Proceeds are not destroyed or damaged beyond repair sufficient to pay in full the costs of such Project Facilities reconstruction and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement costreequipping, the estimated cost Company will nonetheless complete the work thereof and pay that portion of the costs thereof in excess of the amount of such Net Insurance Proceeds, provided that the Company may request that Additional Bonds be issued to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior provide Project Facilities costs. Any balance of Net Insurance Proceeds incident to the occurrence Project Facilities received by the Trustee remaining after paying therefrom the costs of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost reconstruction and reequipping of the Assets. If Purchaser elects to reduce the Cash Consideration Project Facilities pursuant to this Section 4.127.01 shall be paid to the Trustee for deposit into a separate account in the Bond Fund, Seller and Purchaser shall negotiate be promptly applied, at the direction of the Authorized Company Representative, (a) to be applied by the Trustee to purchase 1999 Series A Bonds in good faith in an effort the open market (excluding any portion of the purchase price which is attributable to agree upon interest accrued and/or accruing on such 1999 Series A Bonds until the amount date of purchase) for the purpose of cancellation; (b) to redeem 1999 Series A Bonds on the earliest redemption date thereof (paying principal sums only) for the purpose of cancellation; or (c) to pay the principal of and/or interest on the 1999 Series A Bonds, provided that if the Company directs the Trustee to apply said balance pursuant to clause (c) above, the Company shall also deliver to the Trustee and the Issuer a Favorable Opinion of Bond Counsel to the effect that such reductionuse will not impair the exclusion of the interest on the 1999 Series A Bonds from gross income for federal income tax purposes. If the parties Company shall elect that the Project Facilities, or any damaged or destroyed portion thereof, not be reconstructed and reequipped, and any 1999 Series A Bonds are unable then Outstanding, then all Net Insurance Proceeds allocable to reach agreement within five (5) Business Days after notice those portions of the Damage or Destruction Loss is given Project Facilities that will not be reconstructed and reequipped shall be paid to the Trustee. All such Net Insurance Proceeds received by Sellerthe Trustee shall be deposited into a separate account in the Bond Fund, then and applied to redeem 1999 Series A Bonds (paying principal sums only) on the earliest redemption date permissible for the purpose of cancellation. If the Net Insurance Proceeds are inadequate to pay and discharge the relevant 1999 Series A Bonds, the Company shall pay to the Trustee such moneys as may be required for such payment and discharge. If such Net Insurance Proceeds are in excess of the amount required to pay, redeem, purchase in the open market or defease 1999 Series A Bonds equal in aggregate principal amount to all the then Outstanding 1999 Series A Bonds allocable to such damaged or destroyed portion of the reduction Project Facilities, all such excess shall be determined by paid to the Bankruptcy CourtIssuer, as the governmental owner of the Project Facilities.

Damage or Destruction. Until If at any time prior to the Closing, Seller determines that any of the Assets shall remain at Properties has been destroyed or damaged by earthquake, flood or other casualty and that such damage will require more than $750,000 for any one Property, (a "Casualty"), or if a proceeding is instituted for the risk taking of Seller. In the event of all or any material damage to or destruction portion of any of the Assets Properties under the power of eminent domain (a "Taking"), Buyer may terminate this Agreement as to the affected Property within fifteen (15) days after the date hereof Buyer receives notification in writing by Seller of such Casualty or Taking. Upon such termination, the Purchase Price for the Properties shall be reduced by the amount of the Purchase Price allocated for the Property that has incurred the Casualty damage or is the subject of a Taking. If Buyer does not so terminate this Agreement as to the affected Property, Buyer shall be deemed to have waived the material loss or damage from such Casualty or Taking and prior shall proceed to close, as provided hereinbelow. If Buyer waives any material loss or damage from such Casualty or Taking and proceeds to consummate the purchase and sale transaction, or in the event of immaterial loss, damage or condemnation as to any Property, then Buyer shall consummate the purchase of such Properties in accordance with this Agreement, in which event Seller shall assign to Buyer at the Closing (in A) any insurance proceeds payable to Seller on account of such case, a “Damage or Destruction Loss”) Seller shall give notice thereof Casualty (excluding rental income insurance proceeds allocable to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Asset is not repaired or replaced period prior to Closing) or (B) any award payable to Seller by reason of the Taking (excluding any award for a temporary taking to the extent allocable to the period prior to Closing), all right and claim of Seller as the case may be. If Buyer fails to any proceeds of insurance for give such Damage or Destruction Loss notice within such 15-day period, then Buyer shall be assigned and (if previously received by Seller and not used prior deemed to the Closing Date have elected to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration terminate this Agreement pursuant to this Section 4.127.1. The Closing Date shall be deferred, Seller and Purchaser shall negotiate in good faith in an effort if necessary, to agree upon permit Buyer to have the amount 15-day period following receipt of such reductionnotice of a Casualty or a Taking to make the election specified hereinabove. If the parties are unable Buyer terminates this Agreement pursuant to reach agreement within five (5) Business Days after notice this Section 7.1, then that portion of the Damage or Destruction Loss is given by Additional Deposit allocated to the affected Property shall be returned to Buyer, that portion of the Option Payment allocated to such affected Property shall be deemed released to Seller, then and the term "Deposit" shall be deemed reduced by the amount of the reduction Additional Deposit returned to Buyer and the amount of the Option Payment deemed released to Seller and neither Seller nor Buyer shall have any further obligations under this Agreement, except Buyer's obligation to perform those obligations set forth in Sections 2.4(b), 7.2, and 7.8 of this Agreement. Except as provided in Section 4.2(f), nothing herein shall be determined by deemed to constitute an obligation on the Bankruptcy Courtpart of Seller to carry or maintain any insurance of any kind whatsoever pertaining to the Property.

Damage or Destruction. Until (a) If during the Closingterm of this Lease the Premises are damaged by fire or other casualty, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of any of the Assets after the date hereof and prior but not to the Closing (extent that Lessee is prevented from carrying on business in any such casethe Premises, a “Damage or Destruction Loss”) Seller Lessor shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance cause the Premises and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce the Cash Consideration by an amount equal to (i) if such Assets are not destroyed or damaged beyond repair and are able improvements thereon to be repaired or restored at its sole cost and risk to substantially the same condition that in which they existed prior to such Damage or Destruction Loss at a cost less than their replacement costdamage. If such damage renders any portion of the Premises untenantable, the estimated rent reserved hereunder (except for variable rent) shall be reduced during the period of its untenantability proportionately to the amount by which the area so rendered untenantable bears to the entire area of the Premises, and such reduction shall be apportioned from the date of the casualty to the date when the Premises is rendered fully tenantable. Provided, however, that if Lessor under a Materials Handling Service Agreement then in existence between Lessor and Lessee, can meet Lessee's service requirements for the Premises without additional cost to Lessee, despite the damage to the Premises, then no abatement of rent shall occur. Notwithstanding the foregoing, in the event such fire or other casualty damages or destroys any of Lessee's leasehold improvements, alterations, betterments, fixtures or equipment (exclusive of any such leasehold improvements, alterations, betterments, fixtures or equipment provided to Lessee by Lessor at Lessor's expense at the commencement of this Lease, which shall be restored by Lessor), Lessee shall cause the same to be repaired or restored at Lessee's sole expense (other than Lessee's personal property or equipment, which Lessee may elect, in Lessee's sole discretion, to repair or restore the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement cost of the Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courtrestore).

Damage or Destruction. Until the Closing, the Assets shall remain at the risk of SellerSection 7.01 DAMAGE TO OR DESTRUCTION OF RESTAURANTS. In the event of any material damage to or destruction of If any of the Assets after the date hereof and prior to the Closing Restaurants (in any a "DAMAGED RESTAURANT") is substantially damaged or is destroyed by fire or other casualty (whether or not such case, a “Damage damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss destruction is covered by policies of insurance insurance), and the underlying Asset such Damaged Restaurant is not repaired or repaired, rebuilt and/or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date by the applicable Restaurant Entity, then (i) the Purchaser shall acquire such Restaurant pursuant to repair any the other provisions of this Agreement, (ii) all insurance proceeds payable in connection with such damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If destruction and any such Damage or Destruction Loss is not covered by policies of insurance, Purchaser shall have the right to reduce make a claim therefor (to the Cash Consideration extent not expended prior to the Closing to rebuild or replace the Damaged Restaurant), whether payable to a Seller, any Management Company or any of their respective Affiliates, shall be assigned to the Purchaser or the appropriate Restaurant Entity as determined by an amount the Purchaser and shall be used to rebuild or repair the Damaged Restaurant to its condition prior to such casualty with such changes as may be required by law, and (iii) a portion of the Purchase Price equal to (iX) if in the case of any Damaged Restaurant which is not an Additional Restaurant, five times the Net Cash Flow of such Assets are not destroyed or damaged beyond repair Restaurant Entity and are able (Y) in the case of any Additional Restaurant, the aggregate Opening Expenses otherwise payable by the Purchaser pursuant to be repaired to substantially the same condition that existed prior Section 3.09(b) with respect to such Damage or Destruction Loss at a cost less than their replacement cost, Additional Restaurant shall be withheld (the estimated cost to repair or restore "WITHHELD AMOUNT") and applied as set forth herein. The Purchaser shall first apply the Assets affected by such Damage or Destruction Loss to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or proceeds described under clause (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage repair, rebuilding or Destruction Loss replacement and shall effect such repair, rebuilding or replacement as quickly as is commercially reasonable. The Withheld Amount shall be paid to the Sellers' Representatives to the extent not used in the repair, rebuilding and/ or replacement of such Damaged Restaurant at a cost less than their replacement costthe earlier of (x) the time that the Purchaser has repaired, rebuilt and/ or replaced such Damaged Restaurant or (y) 150 days after Closing; PROVIDED, HOWEVER, that such 150 day period shall be extended by the replacement cost number of days that the AssetsPurchaser is delayed in the repairing, rebuilding or replacing of such Damaged Restaurant by force majeure. If Purchaser elects to reduce the Cash Consideration pursuant to The provisions of this Section 4.12, Seller and Purchaser 7.01 shall negotiate in good faith in an effort apply to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the Damage or Destruction Loss is given by Seller, then the amount of the reduction shall be determined by the Bankruptcy Courteach Restaurant so affected.