Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld. (b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property. (c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property. (d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 5 contracts
Samples: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.), Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.), Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Casualty; Condemnation. (a) If In the event that Sublessor’s interest as tenant under the Master Lease is terminated by reason of damage or destruction, condemnation, or any condemnation other reason, then this Sublease shall terminate as to Sublessor’s interest therein only (and not as to all Sublessor interests under the Master Lease) on the same date as the termination of such interest, without liability of Sublessor to Sublessee, and Sublessee shall not be entitled to any insurance proceeds or conveyance other remuneration from Sublessor except for insurance proceeds from insurance policies purchased by Sublessee for its own personal property. Sublessor agrees to give written notice to Sublessee promptly should Sublessor’s interest in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall Subleased Premises be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationterminated, or (ii) proceed be threatened to Closing without abatement of be terminated, under the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to PurchaserMaster Lease. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller Sublessor shall not settle terminate the Master Lease due to a casualty or agree to accept any compensation for same condemnation without Purchaser’s the prior written consentconsent of Sublessee, not to which consent may be unreasonably withheldwithheld in Sublessee’s sole and absolute discretion.
(b) In If the event of loss or damage to the Property Subleased Premises or any portion thereof which is damaged by fire or other casualty, and if the Master Lease is not “major” terminated, then:
(as hereinafter defined), this Agreement i) This Sublease shall remain continue in full force and effect, and neither Purchaser nor Seller ;
(ii) Sublessor shall have no obligation to repair or restore the right to terminate this Agreement and damaged space;
(iii) Sublessor shall use commercially reasonable efforts (without litigation or the parties shall nonetheless consummate this transaction in accordance with this Agreementthreat thereof), without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in Section 6.3(c) above, to cause Master Lessor to perform the next sentence. In such eventrepairs which Master Lessor is required to perform under the Master Lease; provided that Sublessor shall not be liable for any damages, nor shall Rent due hereunder be abated, nor shall Sublessee be relieved from the transaction performance of any term or covenant hereunder, nor shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal Sublessee be deemed to Seller’s interest in insurance proceeds that have been collected by Seller evicted, due to any aspect of the repair and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertyspace (including without limitation any delay of such repair and restoration), except to the extent so abated, relieved or evicted under the Master Lease; and
(iv) There shall be no reduction or abatement of Rent for any period during which Sublessee is unable to use the affected portion of the Subleased Premises, in whole or part, due to damage or destruction of the same or the Building, unless Sublessor actually receives a reduction or abatement of rent under the Master Lease.
(c) In the event of a “major” loss eminent domain or damage to condemnation is instituted against the Property Subleased Premises or any portion thereof, Purchaser may terminate this Agreement by written notice and the Master Lease is terminated with respect to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice all or a portion of the occurrence Subleased Premises as a result thereof pursuant to the Master Lease, (i) this Sublease shall terminate as of major loss or damagethe date the Master Lease terminates with respect to such portion of the Subleased Premises without any liability on the part of Sublessor to Sublessee, then Purchaser and Sublessee shall not be deemed entitled to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Sellerany award of damages for Sublessee’s interest in insurance proceeds the Subleased Premises, except that Sublessee may make a claim against the condemning authority for loss of or damage to Sublessee’s trade fixtures and personal property, relocation expenses, and unamortized subtenant improvements costs that have been collected paid by Seller Sublessee, and assign (ii) Sublessor shall have no obligation to Purchaser rebuild or restore the Subleased Premises. If this Sublease is terminated as to less than all of Seller’s rightthe Subleased Premises, title this Sublease shall continue in full force and interest in effect as to the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair remaining portion of the damaged PropertySubleased Premises, except that the Base Rent payable hereunder shall be equitably reduced but only to the extent (if any) that rent applicable to the affected portion of the Subleased Premises is reduced under the Master Lease.
(d) For purposes Sublessee expressly waives the provisions of this California Civil Code Section 12, “major” loss or damage refers to loss or damage to 1932(2) and Section 1933(4). Sublessor and Sublessee expressly waive the Property or any portion thereof: (i) such that the cost provisions of repair or restoration California Code of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair Civil Procedure Sections 1265.120 and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration1265.130.
Appears in 4 contracts
Samples: Sublease (Sandisk Corp), Sublease (Sandisk Corp), Sublease (Sandisk Corp)
Casualty; Condemnation. (a) a. If any condemnation or conveyance in lieu thereof of all after the Rent Commencement Date, the Building or any portion of improvements in, on or under the Real Property occurs or is threatened prior to Closing (written notice of which Leased Premises shall be given damaged or destroyed by fire or other casualty, then Tenant shall repair and restore the Building and said improvements to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice their condition immediately prior to Seller given within twenty such damage or destruction (20taking into consideration normal wear and tear) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed subject to Closing Landlord’s consent which will not be unreasonably withheld, conditioned, or delayed, to a condition similar in nature to those buildings then being constructed by or on behalf of Tenant at the time of the damage or destruction (so long as the new building is of comparable construction, size and standards as the Building being replaced), without abatement of rent. Subject to the Purchase Pricepayment of proceeds by Tenant as expressly set forth in Section (b) below, under no circumstances shall Tenant be liable for any loss or damage including, but not limited to, damage to the Building or Leased Premises resulting from fire or other casualty.
b. Notwithstanding the foregoing, in which case all the event the Building is damaged to the extent of twenty-five percent ( 25%) or more thereof, or is destroyed by fire or other casualty, and such casualty occurs after the first day of the final year of the Initial Term or the final year of any Extended Lease Term, Tenant may cancel this Lease by notice to Landlord. If Tenant elects not to cancel the Lease, Tenant shall not exercise its option to terminate the Lease on the next available option date following said casualty. If Tenant has so canceled this Lease and the fire or other casualty is an insurable casualty under Tenant’s special form coverage insurance, Tenant shall provide Landlord with the proceeds or award of such insurance in an amount required by Article 19 of this Lease. Any proceeds payable by Tenant to Landlord under this Section (less any expenses incurred by Sellerb) shall be assigned exclusive of the unamortized cost of improvements made by or on behalf of Tenant to Purchaser. the Leased Premises or Building.
c. If any condemnation all or a portion of the Leased Premises or so much thereof as to materially, adversely impact Tenant’s ability to utilize the Leased Premises for its intended purposes (as reasonably determined by Tenant in its sole and absolute discretion) shall be taken under power of eminent domain or transferred under threat thereof (“Entire Taking”), then this Lease, at the option of either Landlord or Tenant exercised by either party giving notice to the other of such election within thirty (30) days after such conveyance in lieu thereof or taking possession, whichever is presently pending or occurs after earlier, shall forthwith cease and terminate and the Fixed Rent shall be duly apportioned as of the date hereofof such taking or conveyance. No award for the Entire Taking shall be apportioned and Tenant hereby assigns to Landlord any award which may be made in such taking or condemnation, Seller together with any and all rights of Tenant now or hereafter arising in or to the same or any part thereof. Notwithstanding the foregoing, Tenant shall be entitled to obtain, directly from the condemning authority, an award for its removable trade fixtures, equipment and personal property and relocation expenses, if any, to the extent Landlord’s award is not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) diminished. In the event of loss or damage a partial taking (Partial Taking) which does not result in a termination of this Lease, Fixed Rent shall be reduced in proportion to the Property reduction in the size of the Leased Premises so taken and this Lease shall be modified accordingly. Promptly after obtaining knowledge thereof, Landlord or Tenant, as the case may be, shall notify the other of any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller pending or threatened condemnation or taking affecting the Leased Premises or the Building. Each party shall have the right to terminate this Agreement and seek from the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement condemning authority so much of an award as may be available so long as the Purchase Price or any liability or obligation on the part of Seller award otherwise payable hereunder to one is not diminished by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage an award to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertyother.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 4 contracts
Samples: Lease (Natural Grocers by Vitamin Cottage, Inc.), Lease (Natural Grocers by Vitamin Cottage, Inc.), Lease (Natural Grocers by Vitamin Cottage, Inc.)
Casualty; Condemnation. (a) If Seller shall give Buyer prompt notice of (i) any condemnation damage or conveyance in lieu thereof destruction (including by reason of any collision, fire, explosion, hurricane, tornado, earthquake, flood or terrorist act) of all or any portion of the Real Property occurs or is threatened Transferred Assets after the date hereof and prior to the Closing (a “Pre-Closing Adverse Effect”) and (ii) any actual, pending or proposed Taking of all or any portion of Seller’s or CITERCO’s assets, or any planned or pending Taking as to which Seller or CITERCO has received written notice from the condemning authority, after the date hereof and prior to the Closing. Subject to this Section 8.4, Seller shall retain the risk of which shall loss or damage with respect to the Transferred Assets until title passes at the Effective Time.
(b) If the cost to repair (or replace, to the extent not reasonably subject to repair) the damage or destruction to the Transferred Assets resulting from all Pre-Closing Adverse Effects (the “Repair Estimate”) is expected to be given $25,000,000 or less and the damage resulting from such Pre-Closing Adverse Effect is commercially reasonably capable of being repaired within 120 days after the date of such Pre-Closing Adverse Effect, then Seller may, by notice to Purchaser by Seller promptly Buyer, elect to extend the Termination Date to a date no more than 120 days after the original Termination Date (i.e. before any extension pursuant to this Section 8.4) and repair the damage resulting from such Pre-Closing Adverse Effect and proceed with Closing (upon its receiptand subject to the remaining terms and conditions of this Agreement) upon and subject to completion of repairs of such damage to the Transferred Assets in all material respects at any time prior to the Termination Date (as extended pursuant to this Section 8.4, if applicable). Alternatively, if the parties mutually agree, the parties may elect to proceed with the Closing (upon and subject to the remaining terms and conditions of this Agreement) without repairing such damage (or such portion of such damage as the parties may mutually designate), Purchaser may and Seller shall pay to Buyer at its optionthe Closing an amount in cash equal to the amount of the Repair Estimate.
(c) Upon the occurrence of the Pre-Closing Adverse Effect, the parties hereto shall cooperate in reaching mutual agreement on the amount of the Repair Estimate and the expected time to repair such Pre-Closing Adverse Effect (the “Time Estimate”) as soon as practicable and, in any event, within at least sixty (60) days of the Pre-Closing Adverse Effect. If the parties hereto are unable to reach mutual agreement, after using their good faith reasonable best efforts to reach mutual agreement, on the amount of the Repair Estimate and the Time Estimate, either party may initiate the procedures set forth in Schedule 8.4 for the purpose of utilizing such mechanisms as may be reasonably appropriate and available to them to determine in all due haste such matters prior to the Termination Date (as extended pursuant to this Section 8.4, if applicable).
(d) If, prior to the Termination Date (as extended pursuant to this Section 8.4, if applicable), Buyer and Seller (or their independent experts, if applicable) have mutually agreed upon the amount of the Repair Estimate and the Time Estimate (or the Repair Estimate and/or the Time Estimate have been determined pursuant to the procedures set forth in Schedule 8.4) and either the Repair Estimate is more than $25,000,000 or the Time Estimate is more than 120 days (measured from the date of the Pre-Closing Adverse Effect), Buyer shall not be obligated to effect the transactions contemplated by this Agreement.
(e) If, prior to the Termination Date (as extended pursuant to this Section 8.4, if applicable), Buyer and Seller (or their independent experts, if applicable) have not mutually agreed on the Repair Estimate or the Time Estimate, Seller or Buyer may elect to extend the Termination Date by an additional thirty (30) days and the parties shall implement the procedure for determining the Repair Estimate and Time Estimate, and if applicable, proceed with the Closing (upon and subject to the remaining terms and conditions of this Agreement), as set forth in Section 8.4.
(f) If the value of the assets of Seller and/or CITERCO subject to any actual, pending or proposed Taking of all or any portion of Seller’s or CITERCO’s assets, or any planned or pending Taking as to which Seller or CITERCO has received written notice from the condemning authority, after the date hereof and prior to the Closing, when aggregated with all other such Takings, equals:
(i) terminate less than $10,000,000 the Closing shall take place as provided herein (upon and subject to the remaining terms and conditions of this Agreement by written notice to Seller given within twenty (20Agreement) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) and there shall be assigned to Purchaser. If Buyer at the Closing all interest of Seller in any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, award which may be payable to Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.on account of such Taking(s); or
(bii) In the event of loss $10,000,000 or damage to the Property or any portion thereof which is not “major” (as hereinafter defined)more, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller Buyer shall have the right option to terminate this Agreement and without any further obligation of any of the parties or their Affiliates pursuant hereto; provided that if Buyer elects to proceed with the Closing, the Closing shall nonetheless consummate this transaction in accordance with take place as provided herein (upon and subject to the remaining terms and conditions of this Agreement, ) without any abatement of the Purchase Price or any liability or obligation on Price, and there shall be assigned to Buyer at the part Closing all interest of Seller by reason in any award which may be payable to Seller on account of said damage except as set forth in the next sentencesuch Taking(s). In such eventthe event condemnation proceedings for a Taking are commenced prior to the Closing Date, then, prior to the Closing, the transaction parties shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing cooperate in connection with its insurance claim (including any deductibles paid) or such proceedings and Buyer shall be allowed to participate therein, but Seller shall have sole control of such proceedings; provided, however, that Seller shall use commercially reasonable efforts to maximize the value obtained for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage property subject to the Property condemnation proceedings and shall consult with Buyer prior to reaching a settlement or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event compromise. After the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction Buyer shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less sole control over any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertysuch proceedings.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (NuStar Energy L.P.), Sale and Purchase Agreement (NuStar GP Holdings, LLC)
Casualty; Condemnation. (aa.) If Sellers shall promptly notify Purchasers of any casualty damage it becomes aware of or notice of condemnation or conveyance in lieu thereof of all or that Sellers receive prior to the Closing Date.
(b.) If: (A) any portion of the Real Property occurs is damaged by fire or casualty after the Effective Date and is threatened not repaired and restored substantially to its original condition prior to Closing, and (B) at the time of Closing the estimated cost of repairs is Five Hundred Thousand Dollars (written notice of which $500,000) or less, as determined by an independent adjuster, or otherwise should Purchasers opt pursuant to Section 18(c)(ii), Purchasers shall be given required to Purchaser purchase the Property in accordance with the terms of this Agreement and at Sellers’ option, Purchasers shall either: (x) receive a credit at Closing of the estimated cost of repairs as determined by Seller promptly upon its receiptthe aforesaid independent adjuster; or (y) at Closing Sellers shall: (1) assign to Purchasers, without recourse, all insurance claims and proceeds with respect thereto (less sums theretofore expended in connection with such fire or 10370945.3 22 casualty, if any, by Seller, including for temporary repairs or barricades) (in which event Purchasers shall have the right to participate in the adjustment and settlement of any insurance claim relating to said damage), Purchaser may and (2) credit Purchasers at its Closing with an amount equal to Sellers’ insurance deductible. Sellers shall have no liability or obligation with respect to the quantity or condition of the Property and shall be released from any representation and warranty regarding same as a result of such fire or casualty.
(c.) If, at the time of Closing, the estimated cost of repairing such damage is more than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00), as determined by such independent adjuster, Purchasers may, at their sole option, either : (i) terminate this Agreement by written notice to Seller given Sellers within twenty fifteen (2015) days after Purchaser is notified of such actual or possible proceedings casualty (but before the Closing), in which case all of the Escrow Funds shall be returned deemed a termination pursuant to Purchaser and all further rights and obligations Section 19(a)(i) of the parties under this Agreement shall terminate, except those expressly stated to survive termination, Agreement); or (ii) proceed to Closing without abatement in accordance with Section 18(b)If, prior to Closing, a “material” portion of the Purchase PriceProperty is taken by eminent domain, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller then Purchasers shall have the right within fifteen (15) days after receipt of notice of such material taking to terminate this Agreement and the parties Agreement, (which shall nonetheless consummate this transaction in accordance with be deemed a termination pursuant to Section 19(a)(i) of this Agreement). If Purchasers elect to proceed and to consummate the purchase despite said material taking (such election being deemed to have been made unless Purchasers notify Sellers to the contrary within fifteen (15) days after receipt of notice from Sellers to Purchasers of any taking), without any or if there is less than a material taking prior to Closing, there shall be no reduction in or abatement of the Purchase Price or any liability or obligation on and Purchasers shall be required to purchase the part Property in accordance with the terms of Seller by reason of said damage except as set forth in the next sentence. In such eventthis Agreement, the transaction and Sellers shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Purchasers, without recourse, all of Seller’s Sellers’ right, title and interest in the proceeds and to any award made or to be paid on made in the claim of loss, less any sums expended by Seller prior eminent domain proceeding with respect to Closing in connection with its insurance claim such taking (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event Purchasers shall have the Escrow Funds shall be returned right to Purchaserparticipate in the adjustment and settlement of such eminent domain proceeding). If Purchaser does not give written notice of termination For the purpose of this Agreement within Section, the term “material” shall mean any taking of in excess of ten percent (10%) of the square footage of any of the Facilities or twenty percent (20%) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed Real Property associated with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12Facilities, “major” loss or damage refers to loss or damage to the Property or any portion thereofwhich would: (i) such that the cost of repair adversely affect Purchasers’ or restoration New Operators’ ability after said taking to operate any of the damage Facilities in compliance with the Licenses with the same number of beds at the applicable Facility as are existing with respect to a condition substantially identical to that prior to such Facility as of the event date of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, this Agreement; or (ii) having eliminate after said taking a material adverse impact upon means of egress and ingress to and from the ability applicable Facility to a public highway; or feasibility of operating a nursing home facility on (iii) cause the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate use of the restoration costs applicable Facility after said taking to no longer be in compliance with all applicable zoning and time for restorationbuilding rules, regulations and ordinances.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Diversicare Healthcare Services, Inc.), Asset Purchase Agreement (Diversicare Healthcare Services, Inc.)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion part of the Real Property occurs Subleased Premises are damaged or is threatened prior to Closing (written notice of which destroyed by fire or other casualty, or taken by condemnation or acquired by sale in lieu thereof, Sublessor shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before have the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of Prime Lessor under the parties Prime Lease, and Sublessee shall have the rights and obligations of Sublessor, as tenant under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to PurchaserPrime Lease. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss any such damage, destruction, taking, or acquisition, Sublessee shall be bound by any determination called for by the Prime Lease as to untenantability, materiality of any damage or destruction, or similar matters, whether reached by agreement between Prime Lessor and Sublessor or otherwise as provided in the Prime Lease. Sublessee shall not be entitled to any portion of any condemnation award or sale proceeds, or to any proceeds of any policy of insurance maintained by Prime Lessor or Sublessor, and shall not assert any separate claim therefor in any proceeding, if such claim would directly reduce Prime Lessor’s or Sublessor’s award. Subject to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force terms and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement provisions of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth Prime Lease, in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss any fire or damage other casualty, all insurance proceeds payable under any insurance policy maintained by Sublessee with respect to its furniture, equipment, supplies and other personal property located in the Subleased Premises shall belong exclusively to Sublessee. Notwithstanding anything to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Sellercontrary contained herein, in which the event that pursuant to the Escrow Funds shall be returned Prime Lease, Sublessor receives an abatement of rent related to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of such casualty and such casualty affects the occurrence of major loss or damageSubleased Premises, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller Sublessor shall provide a credit against the Purchase Price equal Sublessee with Sublessee’s equitable share of such abatement to Sellerapplied to Sublessee’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyBase Rent payable hereunder.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 2 contracts
Samples: Sublease, Sublease (Horizon Pharma PLC)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion If, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property occurs for which a Closing has not then occurred, which casualty or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either damage would (i) terminate this Agreement by written notice with respect to Seller given within twenty an Owned Real Property, be reasonably expected to take more than one hundred eighty (20180) days after Purchaser is notified of to complete any such actual restoration or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, repair or (ii) proceed with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing without abatement by providing Seller with written notice of the Purchase Pricesuch exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which case event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or award (less any expenses incurred by Seller) Parent shall be assigned to Purchasersuch Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If any condemnation or conveyance in lieu thereof is presently pending or occurs after If, between the date hereofhereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall not settle have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or agree Parent shall be assigned to accept such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any compensation for same without Purchaser’s prior written consentdeductible), not and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be unreasonably withheldPurchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.
(b) If, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any condemnation or taking occurs or is contemplated with respect to any portion of any Seller Real Property for which a Closing has not then occurred, which condemnation or taking (i) with respect to Owned Real Property, affects more than fifteen percent (15%) of such Owned Real Property, (ii) results or will result in a material reduction of parking or a material restriction on access to and from such Seller Real Property or (iii) with respect to a Leased Real Property, gives rise to a landlord’s right of termination under the applicable Lease (a “Major Condemnation”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at the Seller Real Property affected thereby from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Condemnation, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets or Carved-Out Liabilities related to the Store located at the affected Seller Real Property, except as may be expressly provided herein. In the event of loss or damage that such Buyer does not timely elect to exclude the Property or Carved-Out Assets and Carved-Out Liabilities related to any portion thereof which is not “major” (as hereinafter defined)such affected Store from the applicable Closing, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the and to any proceeds of any such condemnation or taking and all rights, if any, to be paid on the claim of loss, less any sums expended recover such proceeds in respect thereof by Seller prior or Parent shall be assigned to such Buyer at the applicable Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage and, notwithstanding anything herein to the Property or any portion thereofcontrary, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in and to such proceeds of such condemnation or taking and such rights, if any, to recover such proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any condemnation or taking occurs or is contemplated with respect to any portion of any Seller Real Property for which a Closing has not then occurred which is not a Major Condemnation, then such Buyer shall not have the right to exclude the Seller Real Property with respect thereto, and all of Seller’s right, title and interest in and to any proceeds of such condemnation or taking and all rights, if any, to be paid on the claim of loss, less any sums expended recover such proceeds in respect thereof by Seller prior or Parent shall be assigned to such Buyer at the applicable Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12and, “major” loss or damage refers to loss or damage notwithstanding anything herein to the Property or any portion thereof: (i) contrary, all of Seller’s right, title and interest in and to such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair proceeds and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty andsuch rights, if then availableany, an estimate to recover such proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of the restoration costs and time for restorationsuch proceeds.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Roundy's, Inc.), Asset Purchase Agreement (Supervalu Inc)
Casualty; Condemnation. In the event that, prior to Closing, the Real Property, or any part thereof, (a) If any condemnation is destroyed or conveyance in lieu thereof of all or any portion of the Real Property occurs or materially damaged, and such damage is threatened prior sufficient to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) give rise to the Major Tenant the right to terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationits Lease, or (ii) the cost of remedying such casualty exceeds One Million and 00/100 Dollars ($1,000,000.00), as determined by Seller in its reasonable discretion, or (b) condemnation proceedings are commenced against the Real Property, which materially and adversely affect the use and operation thereof, Buyer shall have the right, exercisable by giving notice of such decision to Seller within ten (10) business days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement in its entirety, in which case neither party shall have any further rights or obligations hereunder other than obligations that expressly survive termination of this Agreement. In the event of such termination, the Deposit shall be returned to Buyer, as Buyer’s sole and exclusive remedy. In the event Buyer has no right of termination pursuant to the immediately preceding sentence, Buyer shall accept the Real Property in its then condition and proceed to with the Closing without with no reduction, offset or abatement of the Purchase Price, in which case all proceeds and accept, as its sole recourse against Seller payment or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event assignment of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that all applicable proceeds of insurance, if any, from policies of insurance maintained and paid for by Seller covering the cost of repair or restoration of the damage to a condition substantially identical to that prior Real Property up to the event of damage would be, either be equal amount paid by the insurer and necessary to make the repairs or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Sellerrestorations, or (ii) having a material adverse impact upon any applicable condemnation awards subject to the ability rights or feasibility tenants to such proceeds or awards under the Leases, if any. Seller shall credit the Purchase Price to the extent any deductible exists that is the Seller’s responsibility under any policies of operating a nursing home facility on insurance, which credit shall not exceed the Propertyamount of such damages. The Closing shall automatically be extended as may be necessary for the timeframes set forth herein to run; provided however, the Closing may occur prior to the final settlement with and payment by the insurer, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice event of any casualty anddamage or final settlement and payment of condemnation proceeds, if then available, an estimate of the restoration costs and time for restorationapplicable.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Wells Core Office Income Reit Inc)
Casualty; Condemnation. Seller agrees to give Purchaser prompt notice of any casualty affecting the Land, the Improvements or the Personalty between the date hereof and the Closing Date or of any actual or threatened (ain writing) If any taking or condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs Land or is threatened the Improvements.
8.1.1 If prior to the Closing there shall occur:
(written notice of a) damage to the Property caused by fire or other casualty which shall be given would cost $1,500,000 or more to Purchaser repair or restore, as reasonably determined by Seller promptly upon in good faith or any such damage that would allow the Tenant listed on Exhibit B to terminate its receiptLease, in connection with such damage ("Material Casualty"); or
(b) the taking or condemnation of all or any portion of the Land and/or the Improvements that would allow the Tenant listed on Exhibit B to terminate its Lease, or would materially interfere with the continuing use of the Improvements for its permitted use ("Material Taking"); then, in any such event, Purchaser may at its option, either (i) terminate this Agreement by written give notice to Seller given within twenty ten (2010) days after Purchaser has received the notice referred to above or at the Closing, whichever is notified earlier, stating whether or not Purchaser intends to terminate this Contract by reason of such actual Material Casualty or possible proceedings Material Taking (but before "Casualty/Condemnation Termination Notice"). If Purchaser does not timely give a Casualty/Condemnation Termination Notice, then the Closing), in which case all of the Escrow Funds Closing shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing take place as provided herein without abatement of the Purchase Price, and Seller shall assign to Purchaser at the Closing without recourse or warranty all interest of Seller in which case all and to any insurance proceeds or award (less condemnation awards which may be payable to Seller on account of any expenses incurred by Seller) such occurrence and Purchaser shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (receive as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller portion of the deductible that has been applied to covered losses).
8.1.2 If prior to the Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or there shall occur damage to the Property other than a Material Casualty, or any portion thereofa taking or condemnation other than a Material Taking, Purchaser may terminate this Agreement by written notice to Sellerthen, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damageany such event, then Purchaser shall be deemed obligated to have elected close title with respect to proceed with Closingthe Property pursuant to this Contract, but there shall be assigned to Purchaser at Closing without recourse or warranty all interest of Seller in and to any insurance proceeds or condemnation awards which event, the transaction may be payable to Seller on account of any such occurrence and Purchaser shall proceed receive as contemplated herein, Seller shall provide a credit against the Purchase Price equal the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair portion of the damaged Propertydeductible that has been applied to covered losses).
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Contract of Sale and Purchase (Hines Global REIT, Inc.)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days The Transferors, after Purchaser is notified learning of such actual any fire or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, other casualty on or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (Xxxxxxx Property, shall promptly notify Seller thereof, and, as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except soon as set forth in the next sentence. In such eventreasonably practicable thereafter, the transaction shall proceed as contemplated herein, Seller Transferors shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all with an estimate of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration repairs and the amount of the damage insurance proceeds available to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereofundertake such repairs. Within ten (10) days after its occurrencereceipt of such notices and estimates, Seller shall give Purchaser written notice in turn notify the Transferors whether Seller wants the Transferors to commence repair of the resultant damage of the Xxxxxxx Property. If Seller wants the Transferors to so commence, or if Transferors, in the exercise of prudent business judgment, decide to so commence, the Transferors shall proceed to repair the Xxxxxxx Property but shall not be obligated to expend more than any collected insurance proceeds and the amount of any insurance deductible. Should such fire or other casualty andcreate an emergency situation, the Transferors may elect to take such measures to protect, secure and repair the Xxxxxxx Property as the Transferors in their own discretion determine. At the Closing Date, the Transferors shall pay to Seller any proceeds they have received in respect of any such fire or other casualty; provided, however, that if then availablethe Transferors have undertaken any repairs in accordance with this Section 5(p)(i), an estimate the Transferors shall turn over to Seller the balance of any unused insurance proceeds in the Transferors' possession. At the Closing, the Transferors shall also assign (without warranty or recourse to the Transferors) to Seller all of the restoration costs Transferors' rights to any payments to be made after the Closing Date under any hazard insurance policy then in effect with respect to the Xxxxxxx Property. If it is necessary to prosecute a claim to maximize the proceeds of insurance recovery, from and time after the Closing Date the Transferors shall diligently undertake such prosecution for restorationthe benefit of Seller. The Transferors shall not enter into any agreement to undertake repairs with a term that extends beyond the Closing Date without the prior written consent of Seller, which consent shall not be unreasonably withheld. Following the Closing Date, except as set forth above, the Transferors shall have no further liability or responsibility with respect to any such preceding fire or other casualty at the Xxxxxxx Property. Following the Closing Date, Seller shall reimburse the Transferors for the cost of any repairs made by the Transferors prior to the Closing and not reimbursed by the Transferors' hazard insurance company, to the extent Seller receives any insurance proceeds from and after the Closing Date.
(ii) At the Closing Date, the Transferors shall pay to Seller any proceeds it has received in respect of any taking of any part of the Xxxxxxx Property, and shall assign to Seller without recourse or warranty its right to any future proceeds in respect thereof. Following the Closing Date, the Transferors shall have no further liability or responsibility with respect to any such preceding taking or proceeding regarding the Xxxxxxx Property. If it is necessary to prosecute a claim to maximize the proceeds of taking recovery, from and after the Closing Date the Transferors shall diligently undertake such prosecution for the benefit of Seller.
Appears in 1 contract
Casualty; Condemnation. (a) If Seller agrees to give Purchaser prompt notice (a) of any pending or threatened condemnation affecting the Property of which Seller or conveyance Owner becomes aware, (b) if all or any part of the Property becomes subject to litigation or if Seller or Owner becomes subject to litigation that would affect Seller’s ability to perform its obligations under this Agreement, and (c) of any Damage Event.
(b) If, prior to the Closing, (a) condemnation proceedings are commenced or threatened in lieu thereof of writing against all or any portion of the Real Property occurs (other than an incidental condemnation that does not affect the operation of or is threatened prior access to Closing the Property); or (b) if all or any part of the Property becomes subject to litigation that, if adversely determined, would materially and adversely affect the use or value of the Property to Purchaser or if Seller or Owner becomes subject to litigation that would materially and adversely impair Seller’s ability to perform its obligations under this Agreement, then Purchaser will have the right, upon notice in writing to Seller delivered within ten (10) days after Seller gives Purchaser written notice of which shall such matter as described in this Section 13, to terminate this Agreement, whereupon this Agreement will be given of no further force or effect, except as expressly set forth herein. If Purchaser does not elect, or is not entitled, to Purchaser by Seller promptly upon its receipt)terminate this Agreement, Purchaser may at its option, either will be entitled to the condemnation award and/or an assignment of all of Seller’s rights in and to such condemnation and/or litigation proceedings (i) terminate this Agreement by written notice to the extent that any such litigation relates to the physical condition of the Property and not to Seller given within twenty (20) days after Purchaser is notified and not to the operations of such actual or possible proceedings (but before the Property prior to the Closing), in which as the case all may be.
(c) If, prior to the Closing, the Property is damaged by fire or other casualty or any operational component of the Escrow Funds shall Property (such as, by way of example only, an operational component would include respective constituent parts of the elevator system, the heating, air-conditioning and ventilating system or the roof) fails for any reason, including wear and tear or age (collectively, a “Damage Event”) then Purchaser will have the following rights with respect to each such Damage Event:
(1) If the cost of repairing and/or replacing the portion of the Property affected by such Damage Event will be returned $2,500,000.00 or more (as determined by an architect or general contractor mutually acceptable to Purchaser and Seller), then Purchaser will have the right, upon notice in writing to Seller delivered within ten (10) days after Seller gives Purchaser written notice of such Damage Event, to: (i) receive a credit at Closing in an amount equal to any and all further rights insurance policy deductibles applicable to Seller in connection with such Damage Event, and obligations receive an assignment of Owner’s right to Owner’s insurance proceeds, if any (and Seller will cooperate with Purchaser to ascertain within the ten (10) day period described above whether and to what extent such insurance will apply to the Damage Event); provided, however, that if Purchaser receives insurance proceeds in excess of the parties under this Agreement shall terminateamount necessary to repair or replace such portion of the Property affected by the Damage Event (taking into account the credit received at the Closing), except those expressly stated Purchaser will refund any such excess insurance proceeds to survive termination, Owner; or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldterminate this Agreement.
(b2) If the cost of repairing and/or replacing the portion of the Property affected by such Damage Event will be less than $2,500,000.00 (as determined by an architect or general contractor mutually acceptable to Purchaser and Seller), then the following will apply: (i) if as a result of the Damage Event, the Property cannot be or is not operated in accordance with Owner’s historical standards (such as, for example, the Property is not open to the public or access to the Property (whether for pedestrians or vehicles) is materially impaired, then Seller shall cause Owner to repair and/or replace the portion of the Property affected by such Damage Event and the Closing will be delayed until the fifth (5th) Business Day following date that the Property is again operated in accordance with Owner’s historical standards; provided, however, that such delay in the Closing Date will not exceed ninety (90) days, and if such delay exceeds ninety (90) days, Purchaser will have the option, upon notice in writing to Seller delivered within ten (10) days after the expiration of such ninety (90) day period, to terminate this Agreement; or (ii) if, after such Damage Event, the Property continues to be operated in a manner consistent with Owner’s historical standards, then at Seller’s election, Seller can either (A) cause Owner to repair and/or replace the portion of the Property affected by such Damage Event and extend the Closing Date until the date that is five (5) Business Days following the date that Owner completes such repair and/or such replacement (provided, however, such delay in the Closing Date will not exceed ninety (90) days, and if such delay exceeds ninety (90) days, Purchaser will have the option, upon notice in writing to Seller delivered within ten (10) days after the expiration of such ninety (90) day period, to terminate this Agreement) or (B) proceed to the Closing and provide Purchaser with a credit at the Closing in the amount necessary to repair and/or replace the portion of the Property affected by the Damage Event, as such amount is determined by an architect or general contractor mutually acceptable to Purchaser and Seller.
(d) In the event of any dispute under Section 13(c) of this Agreement solely concerning the selection of an architect or engineer, either party shall have the right to submit such dispute to arbitration in the City of New York under the Expedited Procedures provisions of the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) (presently Rules 56 through 60 and, to the extent applicable, Section 19); provided, however, that with respect to any such arbitration, (i) the list of arbitrators referred to in Rule 57 shall be returned within 5 days from the date of mailing; (ii) the parties shall notify the AAA by telephone, within 4 days of any objections to the arbitrator appointed and will have no right to object if the arbitrator so appointed was on the list submitted by the AAA and was not objected to in accordance with the second paragraph of Rule 57; (iii) the Notice of Hearing referred to in Rule 58 shall be 4 days in advance of the hearing; (iv) the hearing shall be held within 5 days after the appointment of the arbitrator; (v) except as set forth in the next grammatical paragraph, the arbitrator shall have no right to award damages; and (vi) the decision and award of the arbitrator shall be final and conclusive on the parties. THE TIME PERIODS SET FORTH IN THIS SECTION 13(d) ARE OF THE ESSENCE. If any party fails to appear at a duly scheduled and noticed hearing, the arbitrator is hereby expressly authorized to enter judgment for the appearing party. The arbitrators conducting any arbitration shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from, or otherwise modify such provisions. Seller and Purchaser agree to sign all documents and to do all other things necessary to submit any such matter to arbitration and further agree to, and hereby do, waive any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to arbitration and to abide by the decision rendered thereunder which shall be binding and conclusive on the parties and shall constitute an “award” by the arbitrator within the meaning of the AAA rules and applicable law. Judgment may be had on the decision and award of the arbitrators so rendered in any court of competent jurisdiction. Each arbitrator shall be a qualified, disinterested and impartial person who shall have had at least 10 years experience in a calling connected with the matter of the dispute. Seller and Purchaser shall each have the right to appear and be represented by counsel before said arbitrators and to submit such data and memoranda in support of their respective positions in the matter in dispute as may be reasonably necessary or appropriate under the circumstances. Each party hereunder shall pay its own costs, fees and expenses in connection with any arbitration or other action or proceeding brought under this Section 13(d), and the expenses and fees of the arbitrators selected shall be shared equally by Seller and Purchaser. Notwithstanding any contrary provisions hereof, Seller and Purchaser agree that, except with respect to a finding that consent was withheld arbitrarily or in bad faith, (i) the arbitrators may not award or recommend any damages to be paid by either party and (ii) in no event shall either party be liable for, nor shall either party be entitled to recover, any damages. Neither party shall have ex parte communications with any arbitrator selected under this Section 13(d) following his or her selection and pending completion of the arbitration hereunder.
(e) In the case of any termination by Purchaser pursuant to this Section 13, Purchaser shall be entitled to the return of the Xxxxxxx Money and this Agreement shall be of no further force or effect, except as expressly set forth herein.
(f) Subject to the provisions of this Section 13, the risk of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall will remain in full force and effect, and neither Purchaser nor with Seller shall have until the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyClosing.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Casualty; Condemnation. (a) If Notwithstanding any condemnation other provision of this Mortgage, the Credit Agreement or conveyance in lieu thereof the Security Documents, the Mortgagee is authorized, at its option (for the benefit of the Secured Parties), to collect and receive, to the extent payable to the Mortgagor or any other Loan Party, all insurance proceeds, damages, claims and rights of action under any insurance policies with respect to any casualty or other insured damage ("Casualty") to any portion of the Real any Mortgaged Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receiptcollectively, "Insurance Proceeds"), Purchaser may at its optionunless the amount of the related Insurance Proceeds is less than $1,000,000 and an Event of Default shall not have occurred and be continuing. The Mortgagor agrees to notify the Mortgagee and the Administrative Agent, either (i) terminate this Agreement by written in writing, promptly after the Mortgagor obtains notice or knowledge of any Casualty to Seller given within twenty (20) days after Purchaser is notified a Mortgaged Property, which notice shall set forth a description of such actual or possible proceedings (but before Casualty and the Closing), in which case all Mortgagor's good faith estimate of the Escrow Funds shall be returned amount of related damages. The Mortgagor agrees, subject to Purchaser the foregoing limitations, to endorse and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, transfer or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not cause to be unreasonably withheldendorsed or transferred any Insurance Proceeds received by it or any other Loan Party to the Mortgagee.
(b) In The Mortgagor will notify the event Mortgagee and the Administrative Agent immediately upon obtaining knowledge of loss the institution of any action or damage to proceeding for the Property taking of the Mortgaged Property, or any portion part thereof which is not “major” (as hereinafter defined)or interest therein, this Agreement shall remain in full force and effectfor public or quasi-public use under the power of eminent domain, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth any public improvement or condemnation proceeding, or in the next sentenceany other manner (a "Condemnation"). In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all No settlement or compromise of Seller’s right, title and interest in the proceeds to be paid on the any claim of loss, less any sums expended by Seller prior to Closing in connection with any such action or proceeding shall be made without the consent of the Mortgagee, which consent shall not be unreasonably withheld. The Mortgagee is authorized, at its insurance claim option (including any deductibles paid) or for the restoration or repair benefit of the damaged PropertySecured Parties), to collect and receive all proceeds of any such Condemnation (in each case, the "Condemnation Proceeds"). The Mortgagor agrees to execute or cause to be executed such further assignments of any Condemnation Proceeds as the Mortgagee may reasonably require.
(c) In the event of a “major” loss any Condemnation of the Mortgaged Property, or damage any part thereof and subject to the Property or any portion thereofprovisions of paragraph (e) below, Purchaser may terminate this Agreement by written notice to Sellerthe Mortgagee shall apply the Condemnation Proceeds first, in which event the Escrow Funds case of a partial Condemnation, to the repair or restoration of any integrated structure subject to such Condemnation or, in the case of a total or "substantially all" Condemnation, to the location of a replacement property, acquisition of such replacement property and construction of the replacement structures, and second, shall be apply the remainder of such Condemnation Proceeds (less the reasonable costs, if any, incurred by the Mortgagee in the recovery of such Condemnation Proceeds) to prepay obligations outstanding under the Credit Agreement, with any remaining Condemnation Proceeds being returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyMortgagor.
(d) For purposes In the event of this Section 12any Casualty of less than 50% of the useable square footage of the improvements of the Mortgaged Property, “major” loss or damage refers to loss or damage the Mortgagor shall, subject to the conditions contained in paragraph (e), restore the Mortgaged Property to substantially its same condition immediately prior to such Casualty. In the event of any Casualty of greater than 50% of the useable square footage of the improvements of the Mortgaged Property and so long as no Default or any portion thereof: Event of Default has occurred and is continuing, the Mortgagee shall require the Mortgagor to either:
(i) such that restore the cost of repair or restoration of the damage Mortgaged Property to a condition substantially identical similar to that its condition immediately prior to such Casualty, provided that the event of damage would beMortgagor, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of promptly deposits any casualty and, if then available, an estimate of the restoration costs and time for restoration.excess
Appears in 1 contract
Samples: Mortgage, Security Agreement and Assignment of Leases and Rents (Neenah Foundry Co)
Casualty; Condemnation. (a) If any there is a condemnation of the Site, the Easements, and/or the Property, or conveyance a portion thereof which is sufficient to render the Site and/or the Easements unsuitable for Tenant’s purposes, including but not limited to a transfer of the Site, the Easements and/or the Property or a part thereof by consensual deed in lieu thereof of all condemnation, then this Lease shall, at the option of Tenant, terminate upon transfer of title to the condemning or any portion deeded authority, without further liability to either of the Real Property occurs or is threatened prior to Closing (written notice of which Parties, except as otherwise expressly provided herein. The Lease Payment due hereunder shall be given prorated to Purchaser by Seller promptly upon its receipt)the date of the taking, Purchaser may at its option, either (i) terminate this Agreement by written notice and Tenant shall not be required to Seller given within twenty (20) days after Purchaser is notified make any payments for the period following the date of such actual or possible proceedings (but before taking. Tenant and Owner shall be entitled to pursue their own separate condemnation awards with respect to any such taking, which award to Tenant may include, where applicable, the Closing), in which case all value of the Escrow Funds shall be returned Solar Facility, moving expenses, prepaid rent to Purchaser the extent not reimbursed to Tenant by Owner, and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldbusiness dislocation expenses.
(b) In If the Site, the Solar Facility, the Easements, and/or the Property are damaged or destroyed to an extent sufficient to render the Site and/or the Easements unsuitable for Tenant’s purposes, Tenant shall have the right, but not the obligation, to not rebuild, replace or repair any improvement and to terminate this Lease as of the date that such damage or destruction occurred, without prejudice to or otherwise affecting any rights or remedies that Tenant may have hereunder or at law or in equity, and the Lease Payment due hereunder shall be prorated to such date of termination.
(c) Notwithstanding anything in this Lease to the contrary, in the event of loss any casualty to or damage to condemnation of the Property or any portion thereof which is not “major” (during such time as hereinafter defined), this Agreement any security instrument shall remain unsatisfied, the financing entity in full force whose favor such security instrument has been granted shall be entitled to receive all insurance proceeds and/or condemnation awards, up to the amount of the indebtedness secured by such security instrument, otherwise payable to Tenant and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction apply such proceeds in accordance with this Agreement, without any abatement the terms of the Purchase Price or any liability or obligation on security instrument, and shall further have the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in but not the proceeds obligation, to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on restore the Property, as reasonably possible to its original condition, in substantially the event that the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationdamaged or destroyed.
Appears in 1 contract
Samples: Land Lease Agreement
Casualty; Condemnation. If (ai) If there is any loss, damage or destruction to the Property by fire or other casualty (except eminent domain) (a “Casualty Event”) which would enable more than ten percent (10%) of the residents at any Facility to terminate their Resident Agreements, or (ii) there is a Casualty Event and the damage is in excess of three million dollars ($3,000,000.00), or (iii) there is a condemnation or conveyance proceeding in lieu thereof of all or which any material portion of the Real Property occurs relating to any Facility (including, without limitation, any access or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Sellerparking) shall be assigned to Purchaser. If any condemnation taken or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to which the Property or taken has a fair market value in excess of three million dollars ($3,000,000.00) (any portion thereof which is not of the foregoing shall be referred to herein as the “major” (as hereinafter definedFloor”), this Agreement shall remain in full force and effect, and neither then Purchaser nor Seller shall will have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement receive a return of the Purchase Price or any liability or obligation on Deposit, if it so notifies Seller in writing not later than the part first to occur of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paida) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, it is advised of such Casualty Event or condemnation proceeding or (b) the Closing Date. Seller shall give promptly notify Purchaser written notice in writing of a Casualty Event or condemnation affecting the Property, and if the Casualty or condemnation is less than or equal to the Floor, will assign (or cause to be assigned) to Purchaser at Closing each Seller Party’s rights with respect to all insurance or condemnation proceeds related thereto less any casualty andsums expended by such Seller Party with Purchaser’s consent to restore such casualty, if then available, an estimate and Purchaser will receive a credit equal to the deductible plus any uninsured amounts. If the Casualty Event or condemnation is in excess of the restoration costs Floor and time for restorationPurchaser elects not to terminate this Agreement, then Seller will assign (or will cause to be assigned) to Purchaser at Closing each Seller Party’s rights with respect to all insurance or condemnation proceeds related thereto less any sums reasonably expended by such Seller Party with Purchaser’s consent to restore such casualty, and Purchaser will receive a credit equal to the deductible plus any uninsured amounts.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Five Star Quality Care Inc)
Casualty; Condemnation. (a) If Seller agrees to give Purchaser prompt notice of any casualty affecting the Property between the date hereof and the Closing Date or of any taking or condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened Property.
(a) If prior to the Closing there shall occur:
(written notice of i) damage to the Property caused by fire or other casualty which shall be given would cost $500,000 or more to Purchaser repair or restore, as reasonably determined by Seller promptly upon its receipt(a “Material Casualty”); or
(ii) the permanent taking or condemnation of all or any portion of the Property as would materially interfere with the continuing use thereof as an apartment and office complex of the same size and with the same access and parking rights as before such taking or condemnation (a “Material Taking”); then in any such event, Purchaser may at its option, either (i) option terminate this Agreement by written notice to Seller given within twenty ten (2010) days after Purchaser is notified of such actual has received the notice referred to above or possible proceedings (but before at the Closing), in which case all of whichever is earlier. If Purchaser does not elect to terminate this Agreement, then the Escrow Funds Closing shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing take place as provided herein without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, and Seller shall not settle assign to Purchaser at the Closing without recourse or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part warranty all interest of Seller in and to any insurance proceeds (subject to confirmation by reason Seller that such assignment will not impair Seller’s insurance policy) or condemnation awards which may be payable to Seller or Greenhouse on account of said damage except any such occurrence and Purchaser shall receive as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair portion of the damaged Propertydeductible that has been previously applied to covered losses).
(cb) In If prior to the event of a “major” loss or Closing there shall occur:
(i) damage to the Property caused by fire or other casualty which is not a Material Casualty; or
(ii) the taking or condemnation of a portion of the Property which is not a Material Taking; then in any portion thereofsuch event, Purchaser may shall have no right to terminate its obligations under this Agreement by written notice to SellerAgreement, in which event the Escrow Funds but there shall be returned assigned to Purchaser. If Purchaser does not give written notice at Closing all interest of termination Seller in and to any insurance proceeds or condemnation awards which may be payable to Seller or Greenhouse on account of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the any such occurrence of major loss or damage, then and Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed receive as contemplated herein, Seller shall provide a credit against the Purchase Price equal the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair portion of the damaged Propertydeductible that has been previously applied to covered losses).
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (America First Apartment Investors Inc)
Casualty; Condemnation. (a) If any condemnation If, on or conveyance in lieu thereof of all before the Closing Date, one or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which more Properties shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement damaged or destroyed by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual fire or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, other casualty or (ii) proceed to Closing without abatement taken as a result of the Purchase Price, (or in which case all proceeds or award (less any expenses incurred by Sellerlieu of) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending eminent domain proceeding, and the same does not constitute a Major Loss or occurs after Damage, then Sellers shall promptly notify Purchaser of the date hereofsame, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), and this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, effect without any abatement of reduction in the Purchase Price, provided that (A) at the Closing, Purchaser shall be entitled to a reduction in the Purchase Price or any liability or obligation on with respect to the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price applicable Apartment Complex equal to the amount of the deductible under the applicable Seller’s interest in property insurance proceeds that have been collected by Seller policy applicable to such casualty with respect to such Apartment Complex, and (B) Sellers shall assign to Purchaser all of Seller’s Sellers’ right, title and interest in and to any and all (i) claims and insurance proceeds Sellers may have or be entitled to collect, as applicable, under the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing Insurance Policies in connection with its insurance claim such casualty and (including any deductibles paidii) condemnation awards Sellers may be entitled to collect in connection with such condemnation, in each case, pursuant to an assignment and assumption agreement reasonably acceptable to both Sellers and Purchaser, and less the amount of such proceeds or for awards theretofore used by Sellers in connection with securing and restoring the restoration applicable Property or repair of the damaged Property.
(c) Properties. In the event of a “major” loss Major Loss or damage to the Property or any portion thereofDamage affecting a Property, Purchaser may terminate this Agreement with respect to such Property by sending written notice thereof to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement Sellers within twenty ten (2010) days Business Days after Seller sends Sellers send Purchaser written notice of the occurrence of major loss a Major Loss or damageDamage (but in no event later than the Closing Date), and, upon any such election, (a) this Agreement shall be deemed automatically terminated solely with respect to the applicable Property (and the applicable Property shall no longer constitute a “Property” for the purposes of this Agreement) effective as of Purchaser’s notice to Sellers of such election, (b) such Property shall be excluded from the property to be sold by Sellers to Purchaser at the Closing, (c) the Purchase Price payable by Purchaser at the Closing shall be reduced by an amount equal to the Allocated Purchase Price allocated to such Property as set forth on Schedule I and (d) all of Sellers’ representations, warranties, covenants, liabilities and obligations, and Purchaser’s rights, with respect to such Property shall be void and of no further force and effect (without limiting the respective rights and obligations of the parties with respect to the other Properties and except for matters which expressly survive the termination of this Agreement). If Purchaser does not elect to terminate this Agreement with respect to the applicable Property within such ten (10) Business Day period, then Purchaser shall be deemed to have elected to proceed with ClosingClosing with respect to the subject Property, in which event, event the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair provisions of the damaged Property.
(d) For purposes first sentence of this Section 12, “major” loss or damage refers to loss or damage 11.1 shall apply. Purchaser and Seller agree that for purposes of the Regency Property this Section 11.1 is an express agreement to the Property or any portion thereof: (i) such that the cost contrary of repair or restoration Section 5-1311 of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationNew York General Obligations Law.
Appears in 1 contract
Samples: Purchase and Sale Agreement (First Real Estate Investment Trust of New Jersey)
Casualty; Condemnation. (a1) If a “material” part (as hereinafter defined) of any of the Properties is damaged or destroyed by fire or other casualty, Seller shall notify Purchaser of such fact and, except as hereinafter provided, Purchaser shall have the option to delete such Property from this Agreement upon notice to Seller given not later than ten (10) days after receipt of Seller’s notice. Notwithstanding the foregoing, if a “material” part of any of the Properties is damaged or destroyed and Purchaser elects to delete such Property from this Agreement as provided above, Purchaser’s election shall be ineffective if within ten (10) days after Seller’s receipt of Purchaser’s election notice, Seller shall elect by notice to Purchaser to repair such damage or destruction and shall thereafter complete such repair within ninety (90) days after the then scheduled Closing Date at the time of Purchaser’s election. If Seller makes such election to repair, Seller shall have the right to adjourn the Closing Date one or more times for up to ninety (90) days in the aggregate in order to complete such repairs and shall have the right to retain all insurance proceeds which Seller may be entitled to receive as a result of such damage or destruction. If (i) Purchaser does not elect to delete such Property from this Agreement, (ii) Purchaser elects to delete such Property from this Agreement but such election is ineffective because Seller elects to repair such damage and completes such repair within such 120-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 any of the Properties, Purchaser shall close title as provided in this Agreement and, at the Closing, Seller shall, unless Seller has repaired such damage or destruction prior to the Closing, apply the proceeds of any insurance collected by Seller in accordance with the terms of the Lease. A “material” part of any of the Properties shall be deemed to have been damaged or destroyed if the cost of repair or replacement shall be $250,000 or more as reasonably as estimated by Seller or if Tenant can terminate its Lease or xxxxx rent thereunder, or the Property cannot be legally occupied. This provision shall not survive Closing or the termination of this Agreement.
(2) If, prior to the Closing Date, all or any “significant” portion (as hereinafter defined) of any of the Properties is taken by eminent domain or condemnation (or conveyance is the subject of a pending taking which has not been consummated) (in lieu thereof each case, a “Taking”), Seller shall notify Purchaser of such Taking and Purchaser shall have the option to delete such Property from this Agreement upon notice to Seller given not later than ten (10) days after receipt of Seller’s notice. If Purchaser does not elect to delete such Property from this Agreement, or if a Taking involves an “insignificant” portion (“insignificant” is herein deemed to be any taking which is not “significant”, as such term is herein defined) of any of the Properties, at the Closing Seller shall assign and turn over, and Purchaser shall be entitled to receive and keep, all awards or other proceeds for such Taking. A “significant” portion of any of the Properties means a Taking of twenty percent (20%) or more of any Property or if Tenant can terminate its Lease or xxxxx rent thereunder, or the Property cannot be legally occupied. This provision shall not survive Closing or the termination of this Agreement.
(3) Notwithstanding anything contained in Section 16(1) and Section 16(2) to the contrary, if a Property is not deleted from this Agreement as provided in Section 16(1) or Section 16(2) and the eminent domain or condemnation proceeds payable with respect to the affected Property as a result of any Taking exceeds the portion of the Purchase Price allocated to such Property in Section 2(1) of this Agreement, Seller’s obligation to pay over to Purchaser those proceeds paid to Seller prior to the Closing shall be limited to the allocated portion of the amount of the Purchase Price and Seller shall be entitled to retain the remainder of such proceeds. To the extent that payment of all or any portion of the Real Property occurs or is threatened such proceeds does not occur prior to Closing (written notice of which the Closing, the parties agree that Seller shall be given entitled to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all that portion of the Escrow Funds shall be returned to Purchaser and all further rights and obligations proceeds in excess of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement allocated portion of the Purchase Price, which agreement shall survive the Closing. To the extent that no proceeds are due to Seller in which case all proceeds connection with Section 16(1) or award (less any expenses incurred by Seller16(2) above, this Section 16(3) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after not survive the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldClosing.
(b4) In If a Property is deleted from this Agreement pursuant to Section 16(1) or Section 16(2) above, the event of loss or damage Purchase Price shall be reduced by an amount equal to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except allocated to such Property as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paidSection 2(1) or for the restoration or repair of the damaged Propertyhereof.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Casualty; Condemnation. (a) If In the event any condemnation or conveyance eminent domain proceedings are initiated prior to the Closing which might result in lieu thereof the taking of all or any portion of the Real Property or the use thereof or any fire, flood, explosion, accident or other casualty occurs which damages or is threatened prior destroys all or any material portion of the Property, then Purchaser may elect to: (a) proceed to Closing without adjustment or offset to the Purchase Price (written notice except for an adjustment to the Purchase Price upon the occurrence of a casualty in an amount equal to the lesser of (i) the estimated reasonable, out-of-pocket cost to repair the physical damages to the Property caused by such casualty, or (ii) the deductible under Seller's insurance policy relating to such physical damages to the Property), in which event Seller shall assign at Closing all of its right, title and interest in and to, and deliver at Closing if received prior thereto or following Closing if and when received thereafter, such insurance and/or condemnation proceeds, if any, as the same are paid or payable on account of such condemnation or casualty, except that proceeds on account of rental and/or business interruption coverage or losses shall be given to Purchaser prorated as of the Closing Date when collected, and less and except amounts previously expended by Seller promptly upon its receipt), Purchaser may at its option, either to repair such damages; or (ib) terminate this Agreement by written notice to Seller given within twenty ten (2010) days after Purchaser is notified receives notice of any such actual casualty or possible proceedings condemnation (but before no later than the ClosingClosing Date), in which case all event neither Seller nor Purchaser shall have any further rights or obligations hereunder or relating hereto, except pursuant to such provisions hereof as survive termination of this Agreement, and Purchaser shall be entitled to a refund of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction Earnest Money in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentenceSection 3.5. In such event, the transaction no event shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal Xxxxxx have any obligation to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) repair or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to restore the Property or any portion thereof, . The term "material" as used herein shall mean a casualty for which the cost to repair or restore the damage arising therefrom is reasonably determined by Purchaser may terminate this Agreement by written notice to Seller, be in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice excess of the occurrence deductible under Seller's insurance policy relating to such damage or a condemnation which Purchaser and Seller reasonably determine adversely affects the Property. In the event of major loss any condemnation or damagecasualty which is not material, then Purchaser shall be deemed to have elected to proceed with Closing, the rights and remedy in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim subparagraph (including any deductibles paida) or for the restoration or repair of the damaged Propertyabove.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Apple Residential Income Trust Inc)
Casualty; Condemnation. (a) If Subject to Section 5.04(c), if any condemnation Purchased Asset is damaged by fire or conveyance in lieu thereof of all other casualty at or any portion of the Real Property occurs or is threatened prior to the applicable Closing for such Purchased Asset (written notice of which a “Casualty Event”), such Purchased Asset shall be given to Purchaser by Seller promptly upon its receipt)Transferred at the Closing and the Land Rights Purchase Price or the applicable Undepreciated Assets Purchase Price, Purchaser as the case may at its optionbe, either shall not be adjusted; provided that (i) terminate this Agreement Buyer shall receive an assignment of all right, title and interest in and to any insurance proceeds relating to such Casualty Event (after deducting any costs and expenses incurred by written notice to Seller given within twenty (20in connection with pursuing the underlying claim) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed Seller shall remain liable to Closing without abatement pay Buyer any additional amounts necessary (either as a consequence of the Purchase Priceapplication of deductibles, in which case all proceeds self-insurance or award (less any expenses incurred by otherwise of Seller) shall be assigned to Purchaser. If complete restoration; provided, further, however, that Seller’s maximum obligation (including any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller insurance proceeds) to restore such Purchased Asset shall not settle exceed the undepreciated capital cost or agree to accept any compensation for same without Purchaser’s prior written consentFair Market Value, not to be unreasonably withheldas applicable, of such Purchased Asset, as reflected in the Final Statement.
(b) In the event of loss that any Purchased Asset is subject to condemnation or damage taking by eminent domain in any Action settled, consented to or finally adjudicated prior to the Property applicable Closing Date, such Purchased Asset shall not be conveyed to Buyer at the Closing (and the Land Rights Purchase Price or any portion thereof which is not “major” (the applicable Undepreciated Assets Purchase Price, as hereinafter definedthe case may be, shall be adjusted accordingly), this Agreement and Seller shall remain be entitled to any compensation, payment or other relief in full force connection therewith; provided that an underlying Action shall be considered finally adjudicated when an order determining any compensation, payments or other relief to be paid with respect to such Action has been issued by a court of competent jurisdiction and effecthas become nonappealable.
(c) Notwithstanding anything in Section 5.04(a) and Section 5.04(b) to the contrary, and neither Purchaser nor Seller Buyer shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller pursuant to Section 8.01(f) by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide giving a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written termination notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty Seller no later than thirty (2030) days after Seller sends Purchaser written notice of following the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) Casualty Event if such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having Casualty Event has had a material adverse impact upon the ability or feasibility of operating a nursing home facility effect on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationRTS Project.
Appears in 1 contract
Samples: Asset Purchase Agreement
Casualty; Condemnation. (a) If any condemnation The risk of loss or conveyance damage to the Premises by fire or other casualty or cause beyond Seller’s control (collectively, “Damage”) in lieu thereof of all or any portion advance of the Real Property occurs or is threatened prior to Closing (written notice of which Date shall be given to Purchaser borne by Seller promptly upon Seller. Upon any such Damage, Purchaser, in its receipt)sole discretion, Purchaser may at its option, shall either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing)Agreement, in which case all of event the Escrow Funds Deposit shall be returned to Purchaser and all the parties hereto shall have no further rights and or obligations of the parties under this Agreement shall terminatehereunder, except those expressly stated to survive terminationas otherwise provided herein, or (ii) proceed require Seller to Closing without abatement of repair such Damage within a reasonable time thereafter, not to exceed one hundred eighty (180) days or (iii) reduce the Purchase Price, in which case all proceeds or award (less any expenses incurred Price by Seller) shall be assigned an amount equivalent to the cost to repair such Damage as determined by quoted estimates from reputable contractors selected by Seller and approved by Purchaser. If any condemnation Purchaser elects option (ii) or conveyance in lieu thereof is presently pending or occurs after the date hereof(iii), then Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldhereby reserves all rights and claims it may have against insurance companies and other third parties.
(b) In the event of loss or damage If, prior to the Property Closing, ten percent or more of the Premises or any portion thereof material access to the Premises or any part of the Premises which Purchaser believes is not “major” (as hereinafter defined)material to its planned use of the Premises is taken or is proposed to be taken under power of eminent domain, this Agreement notice of which shall remain in full force and effectbe provided to Purchaser, and neither Purchaser nor Seller shall have the right may elect to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by giving written notice of its election to Seller, in which event the Escrow Funds shall be returned to PurchaserSeller within fifteen (15) days after receiving written notice from Seller of such taking or proposed taking. If Purchaser does not give such written notice within such fifteen (15) day period, this transaction shall be consummated as set forth in this Agreement, and Seller shall assign to Purchaser the Seller’s portion of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice any condemnation award up to the amount of the occurrence Purchase Price. If, prior to the Closing, less than ten percent (10%) of major loss the Premises is taken or damageis proposed to be taken under power of eminent domain, then and Purchaser deems such part of the Premises as not material to its planned use of the Premises, Purchaser shall be deemed to have elected to proceed with Closingclose this transaction as set forth in this Agreement, in which event, the transaction shall proceed as contemplated herein, and Seller shall provide a credit against reduce the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by an amount representing the fair and equitable value of the taken property, as Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertyshall reasonably agree.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Casualty; Condemnation. In the event the Improvements on either Property are materially destroyed or damaged in an amount exceeding three hundred thousand dollars (a) If any $300,000), or if condemnation proceedings are threatened or conveyance in lieu thereof of commenced against all or any material portion of either of the Real Property occurs or Properties in each case between the date hereof and the date the same is threatened prior scheduled to Closing (written be acquired by Buyer pursuant to this Agreement, Buyer shall have the option, exercisable in its sole discretion and by giving notice of which shall be given such decision to Purchaser by Seller promptly upon its receipt)within ten (10) business days after Buyer's receipt of notice of such damage, Purchaser may at its optiondestruction or condemnation proceedings, either to terminate this Agreement. In the event Buyer does not elect to so terminate, (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified in the case of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereofcondemnation, Seller shall not settle or agree cause Target to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer at the Closing all of Seller’s its right, title and interest in and to all proceeds resulting from such condemnation of such Property, after deducting therefrom any third party costs or expenses incurred by Target in settling, adjusting or compromising such condemnation award, including the right to apply for and prosecute the same, which proceeds to shall be paid on the claim of loss, less any sums expended held by Seller prior to Closing or Target until disbursed in connection accordance with its insurance claim (including any deductibles paid) or for the restoration or repair provisions of Section 6.5 of the damaged Net Lease; provided however, that this assignment shall not preclude Target from filing a separate claim for non-real property related condemnation proceeds (other than the Personal Property.
(c) In ), including but not limited to, loss of business, future profits, and good will; damages related to stock and/or trade fixtures, furniture and other personal property belonging to Target; the event cost of removing fixtures, equipment and inventory; moving expenses related to the relocation of the business, and any and all other related damages or expenses incurred as a “major” result thereof and for loss of or damage to its leasehold interest in the Property Property, provided that such claim shall not diminish any condemnation award otherwise due to Buyer; and (ii) in the case of casualty, Seller shall repair or any portion thereofcause Target to repair such damage at its expense prior to the Closing, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damageif that is impossible, then Purchaser shall be deemed to have elected to proceed with promptly following such Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against manner and subject to the Purchase Price equal to Seller’s interest standards in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair Section 5.5 of the damaged PropertyNet Lease.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
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Casualty; Condemnation. 11.1 If, before the Closing, (a) If all or any material portion of a Property is destroyed or damaged by fire, other casualty, or any act or occurrence (a “Casualty”), Seller shall notify Purchaser thereof promptly after Seller becomes aware thereof, or (b) any condemnation proceedings are commenced or conveyance threatened in lieu thereof of writing against all or any portion of a Property (a “Condemnation”), Seller shall notify Purchaser thereof promptly after Seller becomes aware thereof.
11.2 In any case of a Casualty or Condemnation that occurs with respect to a Property on or before the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt)Date, Purchaser may at its optionremove any such Property that is the subject of the Casualty or Condemnation from the Transaction if (a) with respect to a Casualty only, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified the value of such actual Property’s Improvements (as defined in the Lease) is reduced by more than 25%, (b) Tenant would have the right to terminate the Lease with respect to such Property under the Lease’s terms or possible proceedings (but before c) the Closingtime required to rebuild or restore the improvements affected by such Casualty or Condemnation exceeds nine (9) months as determined by a qualified engineer (each of (a) through (c), a “Material Casualty/Condemnation Event”), in which case all the Purchase Price will be adjusted so that the Purchase Price will equal the Aggregate Value for such adjusted group of Properties after removing the Property affected by such Casualty or Condemnation from the Transaction based upon the Individual Value of the Escrow Funds Property removed. If Purchaser does not opt to remove such Property from the Transaction within ten (10) Business Days of notice of a Material Casualty/Condemnation Event, then such Property shall continue to comprise a portion of the Transaction, and Tenant shall be returned obligated to Purchaser and all further rights and obligations restore such Property in accordance with the terms of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall applicable Lease that will be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage applicable to the Property or on the Closing Date, without any portion thereof which is not “major” (as hereinafter defined)rent abatement in connection therewith and subject to the terms of such Lease regarding disbursement of the insurance proceeds and Condemnation awards, this Agreement shall and provided that Tenant’s rights under the applicable Lease’s provisions concerning Condemnation, but excluding Tenant’s termination rights thereunder, remain in full force and effect, and neither Purchaser nor Seller shall have the right effect with respect to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged affected Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Gramercy Property Trust Inc.)
Casualty; Condemnation. 13.1 In the event of the occurrence of any of the following after the Date of Agreement and prior to the Close of Escrow: (ai) If the commencement of any eminent domain or condemnation or conveyance in lieu thereof of all or proceedings with respect to any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationProperty, or (ii) proceed any casualty which (x) shall cost in excess of Three Hundred Thousand Dollars ($300,000) to Closing without abatement of repair, and (y) Seller fails to: (A) repair such casualty, or (B) provide or assign any insurance proceeds covering such casualty to Buyer, together with a credit against the Purchase Price, Price in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage an amount equal to the Property reasonable cost, as mutually agreed by the parties, to repair the damage or any portion thereof destruction which is not “major” (as hereinafter defined)covered by insurance, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller Buyer shall have the right to terminate this Agreement until the earlier of fifteen (15) days after the date Buyer receives written notice of such damage, taking or condemnation, or the Closing Date. If Buyer elects to terminate this Agreement, both parties shall be relieved of any further obligations hereunder.
13.2 In the event of the occurrence of any casualty to the Property after the Date of Agreement and prior to the Close of Escrow which shall cost Three Hundred Thousand Dollars ($300,000) or less to repair, or if Buyer does not elect to terminate this Agreement pursuant to Section 13.1, the obligations of the parties hereunder shall be unaffected and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentenceproceed to Closing. In such eventcase, Seller shall, at its option: (i) deliver to Buyer, at the Close of Escrow, the transaction proceeds, if any, of all insurance coverage applicable to such damage previously received by Seller (or an assignment of all insurance proceeds applicable thereto), and Buyer shall proceed as contemplated herein, Seller shall provide receive a credit against the Purchase Price in an amount equal to Seller’s interest in insurance proceeds that have been collected the reasonable cost, as mutually agreed by Seller and assign the parties, to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined destruction which is not covered by an independent appraiser chosen by Purchaser and reasonably acceptable to Sellerinsurance, or (ii) having a material adverse impact upon repair the ability or feasibility casualty. If Seller elects to repair the casualty and the restoration period extends beyond the Close of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrenceEscrow, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of continue the restoration costs and time for restorationrepair into the Leaseback Term.
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Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss fire, casualty or damage taking that affects the Sublet Premises but does not result in termination of the Prime Lease, the Rent hereunder shall be abated to the Property or any portion thereofextent (if any) that the rent payable by Sublandlord, Purchaser may terminate this Agreement by written notice as tenant under the Prime Lease with respect to Sellerthe Sublet Premises, in which event the Escrow Funds shall be returned to Purchaserabated. If Purchaser does not give written notice of termination The provisions of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser Section 18 shall be deemed considered an express agreement governing any cause of damage or destruction to the Sublet Premises by fire or other casualty, and no local or state statute, law, rule or regulation, now or hereafter in effect, providing for such a contingency shall have elected any application in such case, to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected extent permitted by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertylaw.
(db) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration Irrespective of the damage form in which recovery may be had by law, as between Sublandlord and Subtenant, all rights to damages or compensation for any taking affecting the Sublet Premises shall belong to Sublandlord in all cases. Subtenant hereby grants to Sublandlord all of Subtenant’s rights to such damages and covenants to deliver such further assignments thereof as Sublandlord may from time-to-time request. Nothing contained herein shall be construed to prevent Subtenant from prosecuting in any condemnation proceedings a claim for relocation expenses, provided that such action shall not affect the amount of compensation otherwise recoverable by Sublandlord from the taking authority.
(c) Subtenant agrees that Sublandlord may elect to terminate the Prime Lease if it shall be entitled to do so due to a condition substantially identical fire or other casualty or a taking by eminent domain or condemnation. If the Prime Lease shall be terminated due to that a casualty or condemnation prior to the event scheduled Expiration Date, this Sublease shall terminate as of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs termination of the Prime Lease and time for restorationSublandlord shall have no liability to Subtenant due or arising directly or indirectly out of such early termination due to a casualty or condemnation.
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Casualty; Condemnation. (a) If Seller agrees to give Purchaser prompt notice (a) of any pending or threatened condemnation affecting the Property of which Seller, Parent or conveyance Owner becomes aware, (b) if all or any part of the Property becomes subject to litigation or if Seller, Parent or Owner becomes subject to litigation that would affect Seller’s ability to perform its obligations under this Agreement, and (c) of any Damage Event.
(b) If, prior to the Closing, condemnation proceedings are commenced or threatened in lieu thereof of writing against all or any portion of the Real Property occurs or is threatened Property, Purchaser will be entitled to the condemnation award and/or an assignment of all of Seller’s rights in and to such condemnation proceedings. If, prior to Closing the Closing, all or any part of the Property becomes subject to litigation that, if adversely determined, would materially and adversely affect the use or value of the Property to Purchaser or if Seller, Parent or Owner becomes subject to litigation that would materially and adversely impair Seller’s ability to perform its obligations under this Agreement, then Purchaser will have the right, upon notice in writing to Seller delivered within ten (10) days after Seller gives Purchaser written notice of which shall such matter as described in this Section 13, to terminate this Agreement, whereupon this Agreement will be given of no further force or effect, except as expressly set forth herein. If Purchaser does not elect, or is not entitled, to Purchaser by Seller promptly upon its receipt)terminate this Agreement, Purchaser may at its option, either will be entitled to the litigation award and/or an assignment of all of Seller’s rights in and to such litigation proceedings (i) terminate this Agreement by written notice to the extent that any such litigation relates to the physical condition of the Property and not to Seller given within twenty (20) days after Purchaser is notified and not to the operations of such actual or possible proceedings (but before the Property prior to the Closing), in which as the case may be.
(c) If, prior to the Closing, the Property is damaged by fire or other casualty or any operational component of the Property (such as, by way of example only, an operational component would include respective constituent parts of the elevator system, the heating, air-conditioning and ventilating system or the roof) fails for any reason, including wear and tear or age (collectively, a “Damage Event”) then Purchaser will be entitled to the insurance proceeds and/or an assignment of all of Seller’s rights in and to such insurance proceedings, provided that Purchaser shall remain liable for all associated insurance policy deductibles.
(d) [INTENTIONALLY OMITTED]
(e) In the Escrow Funds case of any termination by Purchaser pursuant to this Section 13, Purchaser shall be returned entitled to Purchaser and all further rights and obligations the return of the parties under Xxxxxxx Money and this Agreement shall terminatebe of no further force or effect, except those as expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldset forth herein.
(bf) In Subject to the event provisions of Section 13(b), Purchaser bears the risk of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have until the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyClosing.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
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Casualty; Condemnation. (a) If any condemnation 13.1. Seller assumes all risk and liability, damage to or conveyance in lieu thereof of all injury occurring to the Property and/or Personal Property by fire, storm, accident or any portion of other casualty or cause until the Real Closing has been consummated. If the Property occurs or is threatened Personal Property, or any part thereof, suffers any damages prior to the Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt)from fire or other casualty, Purchaser Buyer may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before and the Closing), in which case Earnest Money Deposit and all of the Escrow Funds interest thereon shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Sellerxx Xuyer, in which event the Escrow Funds parties shall have no further rights and liabilities hereunder except with respect to those matters specifically surviving termination or Closing; or (ii) without repairing such damage, consummate the Closing, in which fatter event the proceeds of any insurance covering such damage shall be returned assigned to PurchaserBuyer at Closing.
13.2. If Purchaser does not give written notice If, prior to Closing, action is initiated or threatened to take a material part of termination of the Property by eminent domain proceedings or by deed in lieu under threat thereof, Buyer may either (i) terminate this Agreement within twenty (20) days after Seller sends Purchaser written notice and receive a refund of the occurrence of major loss Earnest Money Deposit and all interest thereon, in which event the xxxxxxs shall have no further rights or damageobligations hereunder except those matters specifically surviving termination or Closing; or (ii) consummate the Closing in which latter event any award received or to be received by Seller from the condemning authority shall be assigned to Buyer at the Closing. For purposes hereof, then Purchaser a "material part" shall be deemed to have elected to proceed with Closing, in mean a taking which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair prohibits or restoration impedes Buyer's intended use of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or Property; (ii) having a material adverse impact upon the ability affects any means of ingress or feasibility of operating a nursing home facility on egress to the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ; or (iii) physically affects more than ten percent (10%) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationavailable square footage of the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golden Enterprises Inc)
Casualty; Condemnation. (a) If, prior to the Closing Date, all or part of the Property is damaged by fire or by any other cause whatsoever, Seller shall promptly give Buyer written notice of such damage. If the cost of repairing such damage is not in excess of five percent (5%) of the Purchase Price, then Buyer shall have the right at Closing to receive, to the extent such sums have not been expended on repair work, (1) all insurance proceeds payable as a result of such loss, or (2) an assignment of Seller's rights to such insurance proceeds without recourse, and this Agreement shall continue in full force and Seller shall have no obligation to repair such damage. If the cost of repairing damage from such casualty is greater than five percent (5%) of the Purchase Price, then Buyer shall have the right, for a period of ten (10) days from the date of notice of the amount of damage caused by the casualty, to terminate this Agreement by giving written notice of termination to Seller within such period. Upon such termination, the parties hereto shall be released of any further liability hereunder except for provisions which survive a termination and except that (i) Buyer shall be entitled to a return of the Deposit and (ii) Buyer shall return any documents provided by Seller to Buyer. If Buyer fails to notify Seller within such period of Buyer's intention to terminate this Agreement, then Buyer shall proceed to Closing and, to the extent such sums have not been expended on repair work, all insurance proceeds received by Seller as a result of such casualty loss including the amount of any deductible, shall be paid to Buyer at Closing. If such proceeds have not yet been received by Seller, then Seller's rights to such proceeds shall be assigned to Buyer at Closing without recourse and Seller shall have no obligation to repair such damage.
(b) If, prior to the Closing Date, any condemnation or conveyance in lieu thereof of all or eminent domain proceedings shall be commenced by any portion competent public authority against the Property, Seller shall promptly give Buyer written notice thereof. Upon notice of the Real commence-ment of any such proceedings (from Seller or otherwise) and in the event that the taking of such Property occurs or is threatened prior shall materially interfere with the operation of the Property, Buyer shall have the right to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) accept the Property subject to the proceedings, whereupon any award shall be paid to Buyer and Seller shall deliver to Buyer at Closing, without recourse, all assignments of such award to Buyer, or (ii) terminate this Agreement by giving written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within effect within ten (10) days after its occurrence, Seller shall give Purchaser written from the date Buyer receives notice of any casualty andthe proceedings. If this Agreement is terminated by Buyer as aforesaid, if then available, an estimate the parties hereto shall have no further liability hereunder except as otherwise expressly provided herein and except that (i) Buyer shall be entitled to a return of the restoration costs Deposit and time for restoration(ii) Buyer shall return any documents provided by Seller to Buyer. In the event Buyer fails to notify Seller within such period of Buyer's intention to terminate this Agreement, then Buyer shall proceed to Closing and Seller's rights to any awards, without recourse, shall be assigned to Buyer at Closing.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Capital Lease Funding Inc)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all In the event that, prior to Closing, the Office Condominium or any portion of the Real Property occurs other Assigned Interests, or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt)any part thereof, Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty is destroyed or damaged, and such damage exceeds One Hundred Thousand and 00/100 Dollars (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing$100,000.00), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement if condemnation proceedings are commenced against the Office Condominium or any of the Purchase Priceother Assigned Interests, which in Assignee’s reasonable discretion materially and adversely affect the use and operation thereof, Assignee shall have the right, exercisable by giving notice of such decision to Assignor within three (3) Business Days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller party shall have any further rights or obligations hereunder except for those obligations which expressly survive the right to terminate termination of this Agreement and the parties Deposit shall nonetheless consummate this transaction be returned to Assignee. If (i) the casualty damage does not exceed One Hundred Thousand and 00/100 Dollars ($100,000.00), (ii) the condemnation does not in accordance Assignee’s reasonable discretion materially and adversely affect the use and operation of the Office Condominium or any of the other Assigned Interests, or (iii) Assignee elects as set forth in the preceding sentence to accept the Office Condominium or any of the other Assigned Interests, Assignee shall accept the Office Condominium or any of the other Assigned Interests in its then condition and proceed with this Agreementthe Closing with no reduction, without any offset or abatement of the Purchase Price and accept, as its sole recourse against Assignor payment or any liability or obligation on the part assignment of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that applicable insurance proceeds, if any, from policies of insurance maintained and paid for by Assignor covering the cost of repair Office Condominium or restoration any of the damage to a condition substantially identical to that prior other Assigned Interests up to the event amount paid by the insurer and necessary to make the repairs or restorations and to compensate Assignee for loss of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Sellerrents during its ownership period, or (ii) having a material adverse impact upon any condemnation award, subject to the ability rights of the Tenants to such proceeds or feasibility awards under the Tenant Leases, if any. Assignor shall credit the Purchase Price to the extent any deductible exists that is the Assignor's responsibility under any policies of operating a nursing home facility on insurance, which credit shall not exceed the Propertyamount of such damages. The Closing shall automatically be extended as may be necessary for the timeframes set forth herein to run; provided however, the Closing may occur prior to the final settlement with and payment by the insurer, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice event of any casualty anddamage or final settlement and payment of condemnation proceeds, if then available, an estimate of the restoration costs and time for restorationapplicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Casualty; Condemnation. (a) 16.1 If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” a material part (as hereinafter defined)) of any Property is damaged or destroyed by fire or other casualty, Seller shall notify Purchaser of such fact and, except as hereinafter provided, Purchaser shall have the option to terminate this Agreement Agreement, in which event Escrow Agent shall remain promptly disburse the Fund (subject to Section 24.4) to Purchaser provided that Purchaser is not otherwise in full force and effectdefault hereunder, and neither Purchaser nor Seller party shall have the right any further rights, obligations, or liabilities hereunder except as otherwise specifically set forth herein. If Purchaser elects to terminate waive its aforementioned option, or there is damage to or destruction of an immaterial part ("IMMATERIAL" is herein deemed to be any damage or destruction that is not material, as such term is hereinafter defined) of a Property, Purchaser shall close title as provided in this Agreement and and, at the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated hereinClosing, Seller shall provide a credit against shall, unless Seller has repaired such damage or destruction prior to the Purchase Price equal Closing:
(A) pay over to Seller’s interest in Purchaser the proceeds of any insurance proceeds that have been collected by Seller less the amount of all costs incurred by Seller in connection with the repair of such damage or destruction; and
(B) assign and assign transfer to Purchaser all of Seller’s right, title and interest of Seller in and to any uncollected insurance proceeds that Seller may be entitled to receive from such damage or destruction (Seller shall bear the proceeds to be paid on the claim cost of loss, less any sums expended by Seller prior to Closing in connection with its applicable insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event deductible). A "MATERIAL" part of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) damaged or for the restoration or repair of the damaged Property.destroyed if:
(dI) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration replacement shall be 10% or more of the damage allocated Purchase Price of such Property, as such cost is reasonably estimated by an independent engineer selected by Seller and reasonably approved by Purchaser; or
(II) one or both of the two largest tenants at the damaged Property irrevocably terminates or is entitled to a condition substantially identical to that terminate their lease.
16.2 If, prior to the event Closing Date, all or any significant portion (as hereinafter defined) of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the any Property is being operated taken by Seller on eminent domain or condemnation (or is the date hereof. Within ten (10) days after its occurrencesubject of a pending taking which has not been consummated), Seller shall give notify Purchaser written notice of any casualty andsuch fact and the Purchaser shall have the option to terminate this Agreement, if then available, an estimate of in which event Escrow Agent shall promptly disburse the restoration costs and time for restoration.Fund (subject to Section 20.4) to Purchaser provided that Purchaser is not 48 50
Appears in 1 contract
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all In the event that, prior to Closing, the Property, or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt)part thereof, Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of destroyed or materially damaged, and such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationdamage exceeds $500,000, or (ii) proceed if condemnation proceedings are commenced against the Property, Buyer shall have the right, exercisable by giving notice of such decision to Closing without abatement Seller within ten (10) business days after receiving written notice of the Purchase Pricesuch damage, destruction or condemnation proceedings, to terminate this Agreement, in which case all proceeds neither party shall have any further rights or award (less any expenses incurred by obligations hereunder except for express indemnifications as provided hereunder of Buyer to Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss such termination, the Deposit shall be returned to Buyer, as Buyer’s sole and exclusive remedy. If (i) the casualty damage does not exceed $500,000, or damage (ii) Buyer elects as set forth in the preceding sentence to accept the Property, as applicable, Buyer shall accept the Property in its then condition and proceed with the Closing with no reduction, offset or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price and accept, as its sole recourse against Seller payment or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.assignment of
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that applicable insurance proceeds, if any, from policies of insurance maintained and paid for by Seller covering the cost of repair or restoration of the damage to a condition substantially identical to that prior Property up to the event of damage would be, either be equal amount paid by the insurer and necessary to make the repairs or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Sellerrestorations, or (ii) having a material adverse impact upon any applicable condemnation award, if any, subject to the ability rights of tenants to such proceeds or feasibility awards under the Leases, if any. Seller shall credit the Purchase Price to the extent any deductible exists that is the Seller’s responsibility under any policies of operating a nursing home facility on insurance, which credit shall not exceed the Propertyamount of such damages. The Closing shall automatically be extended as may be necessary for the timeframes set forth herein to run; provided however, the Closing may occur prior to the final settlement with and payment by the insurer, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice event of any casualty anddamage or final settlement and payment of condemnation proceeds, if then available, an estimate of the restoration costs and time for restorationapplicable.
Appears in 1 contract
Casualty; Condemnation. (a) If Borrower shall promptly notify Lender of any condemnation fire or conveyance in lieu thereof of all other casualty or any portion of the Real Property occurs or is threatened prior to Closing (written notice of taking or eminent domain action or proceeding affecting the Property, or the threat of any such action or proceeding of which Borrower becomes aware. Provided no Event of Default then exists and Borrower certifies as to same, the net insurance proceeds shall be given paid to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (Lender but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred made available by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or Lender for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereofif: (i) such that in Lender's reasonable judgment (a) restoration or repair and the continued operation of the Resort is economically feasible, and (b) the value of Lender's security is not reduced; (ii) the cost of restoration or repair does not exceed the net insurance proceeds or Borrower or the Association shall provide a Borrower's Deposit or other evidence satisfactory to Lender in its sole discretion that Borrower or the Association can pay all costs of restoration in excess of such net insurance proceeds; (iii) the loss does not occur in the six (6) month period preceding the Maturity Date as defined in the Construction Note; (iv) Borrower has sufficient business interruption insurance to provide alternative accommodations for all owners or users entitled to occupancy at the Project affected by such casualty loss; and (v) Lender's Inspecting Architect/Engineers certify that the restoration of the damage to a condition substantially identical to that Property can be completed at least ninety (90) days prior to the event of damage would be, either be equal to Maturity Date. Borrower or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the PropertyAssociation shall pay all amounts, in substantially addition to the same manner as net insurance proceeds, necessary to pay in full the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate cost of the restoration or repair. Notwithstanding the foregoing, it shall be a condition precedent to any disbursement of insurance proceeds held by Lender hereunder that Lender shall have approved (x) all plans and specifications for any proposed repair or restoration; (y) the construction schedule; and (z) the architect's and general contractor's contracts for restoration. Lender may establish other conditions it deems reasonably necessary to assure the work is fully completed in a good and workmanlike manner free of all liens or claims by reason thereof, and in compliance with all applicable laws, rules and regulations. At Lender's option, the net insurance proceeds shall be disbursed pursuant to a construction escrow acceptable to Lender. If an Event of Default then exists, or any of the conditions set forth in this subsection have not been met or satisfied, the net insurance proceeds (after deduction of Lender's reasonable costs and time for restorationexpenses, if any, in collecting same) shall be applied to the Loan in such order and manner as Lender may elect, whether or not due and payable, with any excess paid to Borrower.
Appears in 1 contract
Samples: Construction Loan Agreement (Silverleaf Resorts Inc)
Casualty; Condemnation. (a) If To its knowledge, Seller represents that it has received no notice of any condemnation proceedings against the whole or conveyance in lieu thereof any part of the Property. If prior to the Closing Date, all or a substantial portion of either the Real Property or the building wherein the SNF is located shall be damaged (whether by fire, theft, vandalism or other cause of casualty) (a “Casualty”) or condemned or taken by eminent domain by any competent authority for any public or quasi-public use or purpose, then, in such event, Purchaser shall have the option to terminate this Agreement or close the transactions herein provided for; provided the phrase “substantial portion” shall mean a reduction in the fair market value of the Property in excess of $500,000.00 that Seller cannot cure within ninety (90) days after notice of such condemnation or Casualty. The fair market value shall be determined, based on the value on the date of this Agreement of the Property less the portion of the Real Property occurs damaged or is threatened prior lost, by an independent MAI appraiser to Closing be mutually selected and paid equally by Seller and Purchaser. If Seller and Purchaser are unable to mutually select an appraiser, then one independent appraiser shall be selected and paid by Purchaser and one independent appraiser shall be selected and paid by Seller. If a party does not select an appraiser as provided in the preceding sentence within ten (10) days after the other party has given written notice of which the name of its appraiser, such party shall be given lose its right to Purchaser appoint an appraiser. If the two appraisers are selected by Seller the parties as provided above, they shall meet promptly upon its receipt), Purchaser may at its option, either to determine the fair market value. If such appraisers are unable to agree within fifteen (i) terminate this Agreement by written notice to Seller given within twenty (2015) days after Purchaser is notified the second appraiser has been selected, they shall jointly select a third appraiser. The reduction in Purchase Price shall be set by agreement of such actual or possible proceedings any two (but before the Closing), in which case all 2) of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or three (ii3) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaserappraisers. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller Purchaser shall not settle or agree elect pursuant to accept any compensation for same without Purchaser’s prior written consent, not such option to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined)terminate this Agreement, this Agreement shall remain in full force be null and effect, void and neither Purchaser nor Seller shall have the right funds held by the Escrow Agent pursuant to terminate Section 3 of this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If If, however, Purchaser does not give written notice of termination of shall elect to close this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damagetransaction, then Purchaser there shall be deemed to have elected to proceed with Closing, an abatement in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in the net amount of insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationcondemnation award allowed.
Appears in 1 contract
Casualty; Condemnation. (a) If any condemnation Facility or conveyance in lieu thereof of all or any other portion of the Real Property occurs is damaged by fire or is threatened other casualty or becomes the subject of a condemnation proceeding affecting any Facility prior to Closing and the damage is in excess of or the portion of the Facility (written notice or other Property) taken has a fair market value in excess of which shall be given to Purchaser by Seller promptly upon its receiptThree Hundred Thousand Dollars ($300,000) (the “Floor”), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall will have the right to terminate this Agreement with respect to such Facility and the parties related Property (and, as applicable, the relevant Facility Owner Interests) and, in such event the Purchase Price shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement be reduced by that portion of the Purchase Price or any liability or obligation on allocated to such Facility and the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the related Property, if it so notifies Seller in substantially writing not later than the same manner as the Property is being operated by Seller on the date hereof. Within first to occur of (a) ten (10) days after its occurrenceit is advised of the casualty or condemnation proceeding or (b) Closing; provided, however, Purchaser shall not have the right to terminate this Agreement if Existing Tenant is obligated under the Existing Leases to restore such casualty or condemnation. Seller shall give will notify Purchaser written in writing of a casualty or condemnation affecting any Facility or any other portion of the Property within the earlier of (i) Closing or (ii) five (5) days of Seller’s receipt of notice of any casualty thereof and, if then availablethe casualty or condemnation is less than or equal to the Floor, an estimate will assign to Purchaser at Closing Seller’s rights with respect to all insurance or condemnation proceeds related thereto and pay to Purchaser the amount of any insurance deductible. If the casualty is in excess of or the portion of the restoration costs Facility and time for restorationrelated Property taken has a fair market value in excess of the Floor, and Purchaser elects not to terminate this Agreement with respect to such Facility as contemplated above, then Seller will assign to Purchaser at Closing Seller’s rights with respect to all insurance or condemnation proceeds related thereto and, if Seller has not already paid the deductible, Purchaser shall be entitled to a credit toward the Purchase Price in the amount of any deductible.
Appears in 1 contract
Samples: Purchase and Sale Agreement (New Senior Investment Group Inc.)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of before the Closing Date, all or any portion of the Real Property occurs or Purchased Assets is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement taken by written notice eminent domain or is the subject of a pending or (to Seller given within twenty (20the Actual Knowledge of Seller) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in contemplated taking which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationhas not been consummated, or (ii) proceed to Closing without abatement damaged or destroyed by fire or other casualty, Seller shall notify Buyer promptly in writing of such fact, then if the parties consummate the transactions contemplated hereby (including payment of the Purchase Price), (x) in which the case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereofof a condemnation, Seller shall not assign or pay, as the case may be, any proceeds thereof to Buyer on the Closing Date (to the extent received prior to the Closing Date or promptly upon receipt if received thereafter) and (y) in the case of a casualty, Seller shall either restore the damage or assign the insurance proceeds therefor (and pay the amount of any deductible and/or self-insured amount in respect of such casualty) to Buyer on the Closing Date (to the extent received prior to the Closing Date or promptly upon receipt if received thereafter). Notwithstanding the above, if such casualty or loss results in a Material Adverse Effect prior to the Closing Date and the parties elect to consummate the transactions contemplated hereby, Buyer and Seller shall negotiate to settle the loss resulting from such taking (and such negotiation shall include, without limitation, the negotiation of a fair and equitable adjustment to the Closing Payment Amount and Final Closing Payment Amount). If no such settlement is reached within sixty (60) days after Seller has notified Buyer of such casualty or agree loss, then Buyer or Seller may terminate this Agreement pursuant to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) Section 7.12(e). In the event of loss damage or damage destruction which Seller elects to the Property or any portion thereof which is not “major” (as hereinafter defined)restore, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall will have the right to terminate this Agreement postpone the Closing Date for up to four (4) months. Buyer will have the right to inspect and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without observe all repairs necessitated by any abatement of the Purchase Price such damage or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertydestruction.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Second Option and Purchase and Sale Agreement (Keyspan Corp)
Casualty; Condemnation. (a) If any condemnation Casualty to the Bedford Premises or conveyance the Danbury Premises occurs the insurance proceeds for which is reasonably estimated by Tenant to be equal to or in lieu thereof excess of One Hundred Thousand Dollars ($100,000) as increased annually by the CPI Ratio, Tenant shall give Landlord and Lender prompt notice thereof. So long as no Event of Default exists Tenant is hereby authorized to adjust, collect and compromise all or claims under any portion of the Real Property occurs insurance policies required by Section 15(a) (except public liability insurance claims payable to a Person other than Tenant, Landlord or is threatened prior Lender) and to Closing (written notice execute and deliver on behalf of which Landlord all necessary proofs of loss, receipts, vouchers and releases required by the insurers and Landlord shall have the right to join with Tenant therein. Any final adjustment, settlement or compromise of any such claim shall be given subject to Purchaser by Seller promptly upon its receiptthe prior written approval of Landlord (which approval shall not be unreasonably withheld, delayed or conditioned), Purchaser may at its optionand Landlord shall have the right to prosecute or contest, either (i) terminate this Agreement by written notice or to Seller given within twenty (20) days after Purchaser is notified require Tenant to prosecute or contest, any such claim, adjustment, settlement or compromise. If an Event of Default exists, Tenant shall not be entitled to adjust, collect or compromise any such actual claim or possible proceedings (but before the Closing)to participate with Landlord in any adjustment, in which case all collection and compromise of the Escrow Funds Net Award payable in connection with a Casualty. Tenant agrees to sign, upon the request of Landlord, all such proofs of loss, receipts, vouchers and releases. Each insurer is hereby authorized and directed to make payment under said policies, including return of unearned premiums, directly to Landlord or, if required by the Mortgage, to Lender instead of to Landlord. The Net Award shall be returned to Purchaser and all further applied as provided in Section 17(c) or, if the Casualty is a Termination Event, Section 18. The rights and obligations of the parties Landlord under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by SellerSection 17(a) shall be assigned extended to Purchaser. If Lender if and to the extent that any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldMortgage so provides.
(b) In Landlord, promptly upon receiving a Condemnation Notice, shall notify Tenant thereof. Tenant, promptly upon receiving a Condemnation Notice, shall notify Landlord and Lender thereof. Upon notice to Tenant, Landlord and Lender are authorized to collect, settle and compromise, in their discretion, the event amount of loss any Net Award. Provided that no Event of Default has occurred and is continuing, Tenant shall be entitled to participate with Landlord and Lender in any Condemnation proceeding or damage negotiations under threat thereof or settlement or compromise negotiations related thereto and to contest the Condemnation or the amount of the Net Award therefor. No agreement with any condemnor in settlement or under threat of any Condemnation shall be made by Tenant without the written consent of Landlord and Lender, which shall not be unreasonably withheld, conditioned or delayed. Subject to the Property provisions of this Section 17(b), Tenant hereby irrevocably assigns to Landlord any award or payment to which Tenant is or may be entitled by reason of any portion thereof Condemnation, whether the same shall be paid or payable for Tenant's leasehold interest hereunder or otherwise; but nothing in this Lease shall impair Tenant's right to any award or payment on account of Tenant's trade fixtures, equipment or other tangible property which is not “major” part of the Equipment, moving expenses or loss of business, if available, to the extent that and so long as (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller i) Tenant shall have the right to terminate this Agreement make, and does make, a separate claim therefor against the parties shall nonetheless consummate this transaction condemnor and (ii) such claim does not in accordance with this Agreement, without any abatement way reduce either the amount of the Purchase Price or any liability or obligation on award otherwise payable to Landlord for the part Condemnation of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and Landlord's fee interest in the proceeds to be paid on Premises or the claim amount of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim the award (including any deductibles paidif any) or otherwise payable for the restoration or repair Condemnation of Tenant's leasehold interest hereunder. The rights of Landlord under this Section 17(b) shall also be extended to Lender if and to the damaged Propertyextent that any Mortgage so provides.
(c) In the event of a “major” loss If any Casualty (whether or damage to the Property not insured against) or any portion thereofCondemnation shall occur, Purchaser may terminate this Agreement by written notice to SellerLease shall continue, in which event the Escrow Funds notwithstanding such event, and there shall be returned to Purchaserno abatement or reduction of any Monetary Obligations except as otherwise specifically provided in Paragraph 18. If Purchaser Promptly after such Casualty or Condemnation for which Tenant does not give written notice of termination a Termination Notice, Tenant shall commence and diligently continue to restore the affected Premises as nearly as possible to their value, condition and character immediately prior to such event (assuming the Premises to have been in the condition required by this Lease) and as required by Sections 7 and 8 of this Agreement within twenty Lease. So long as no Event of Default exists, any Net Award up to and including $500,000 (20) days after Seller sends Purchaser written notice such amount to be increased on each anniversary of the occurrence of major loss or damage, then Purchaser Commencement Date by the CPI Ratio) shall be deemed paid by Landlord to have elected to proceed Tenant and Tenant shall restore the Premises in accordance with Closing, the requirements of Sections 8 and 19 of this Lease. Any Net Award in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all excess of Seller’s right, title and interest in the proceeds $500,000 (such amount to be paid increased on each anniversary of the claim Commencement Date by the CPI Ratio) shall be made available by Landlord (or Lender, if required by the terms of loss, less any sums expended by Seller prior Mortgage) to Closing in connection with its insurance claim (including any deductibles paid) or Tenant for the restoration or repair of any of the damaged PropertyPremises pursuant to and in accordance with the provisions of Section 19 hereof.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Lease Agreement (Hologic Inc)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days The Transferors, after Purchaser is notified learning of such actual any fire or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, other casualty on or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (Gilbert Property, shall promptly notify Seller thereof, axx, xx soon as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such eventreasonably practicable thereafter, the transaction shall proceed as contemplated herein, Seller Transferors shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all with an estimate of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration repairs and the amount of the damage insurance proceeds available to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereofundertake such repairs. Within ten (10) days after its occurrencereceipt of such notices and estimates, Seller shall give Purchaser written notice in turn notify the Transferors whether Seller wants the Transferors to commence repair of the resultant damage of the Gilbert Property. If Seller wants the Transferors to so commexxx, xx if Transferors, in the exercise of prudent business judgment, decide to so commence, the Transferors shall proceed to repair the Gilbert Property but shall not be obligated to expend morx xxxx any collected insurance proceeds and the amount of any insurance deductible. Should such fire or other casualty andcreate an emergency situation, the Transferors may elect to take such measures to protect, secure and repair the Gilbert Property as the Transferors in their own discretixx xxxxrmine. At the Closing Date, the Transferors shall pay to Seller any proceeds they have received in respect of any such fire or other casualty; provided, however, that if then availablethe Transferors have undertaken any repairs in accordance with this Section 5(p)(i), an estimate the Transferors shall turn over to Seller the balance of any unused insurance proceeds in the Transferors' possession. At the Closing, the Transferors shall also assign (without warranty or recourse to the Transferors) to Seller all of the restoration costs Transferors' rights to any payments to be made after the Closing Date under any hazard insurance policy then in effect with respect to the Gilbert Property. If it is necessary to prosecute a claim to xxxxxxxe the proceeds of insurance recovery, from and time after the Closing Date the Transferors shall diligently undertake such prosecution for restorationthe benefit of Seller. The Transferors shall not enter into any agreement to undertake repairs with a term that extends beyond the Closing Date without the prior written consent of Seller, which consent shall not be unreasonably withheld. Following the Closiet forth above, the Transferors shall have no further liability or responsibility with respect to any such preceding fire or other casualty at the Gilbert Property. Following the Closing Date, Seller shaxx xxxxburse the Transferors for the cost of any repairs made by the Transferors prior to the Closing and not reimbursed by the Transferors' hazard insurance company, to the extent Seller receives any insurance proceeds from and after the Closing Date.
(ii) At the Closing Date, the Transferors shall pay to Seller any proceeds it has received in respect of any taking of any part of the Gilbert Property, and shall assign to Seller without recourse xx warranty its right to any future proceeds in respect thereof. Following the Closing Date, the Transferors shall have no further liability or responsibility with respect to any such preceding taking or proceeding regarding the Gilbert Property. If it is necessary to prosecute a claim xx xxximize the proceeds of taking recovery, from and after the Closing Date the Transferors shall diligently undertake such prosecution for the benefit of Seller.
Appears in 1 contract
Casualty; Condemnation. (a) 10.1 If at any condemnation time prior to Closing any of the improvements located upon the Property is destroyed or conveyance in lieu thereof damaged as a result of all fire or any other casualty (“Casualty”), Seller shall give written notice (“Casualty Notice”) thereof to Buyer. If the Property is the subject of a Casualty, and the cost to repair such Casualty exceeds ten percent (10%) of the Purchase Price, as determined by a contractor selected by Seller and reasonably acceptable to Buyer, Buyer shall have the right, as its sole option; (i) to terminate this Agreement (by written notice to Seller within ten (10) days after Seller’s giving the Casualty Notice and estimate of repair from Seller) and have the Escrow returned; or (ii) if Buyer does not terminate this Agreement (or if the Casualty is less than ten percent (10%) of the Purchase Price) the proceeds of any insurance with respect to the Property paid between the date of this Agreement and Closing (less amounts incurred by Seller in performing necessary repairs to protect the Property) shall be paid to Buyer at the time of Closing, and all unpaid claims and rights in connection with losses to the Property shall be assigned to Buyer at Closing without in any manner affecting the Purchase Price. Risk of loss shall pass to Buyer at Closing.
10.2 If either: (i) all of the Property; or (ii) a substantial portion of the Real Property occurs Property; is taken between the date of this Agreement and the date of Closing by the exercise of the power of eminent domain by any local, state, or is threatened prior to Closing federal body, Seller shall notify Buyer (written notice of which shall be given to Purchaser by Seller promptly upon its receipt“Condemnation Notice”), Purchaser and Buyer may at its optionchoose, either (i) terminate this Agreement by written notice to Seller given within twenty ten (2010) days after Purchaser is notified of such actual or possible proceedings (but before Seller’s giving the Closing)Condemnation Notice, in which case all of to cancel this Agreement. In the Escrow Funds event Buyer does not so cancel this Agreement, Buyer shall be returned to Purchaser and all further rights and obligations of complete Closing at the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the full Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree allow a credit to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage Buyer at Closing equal to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement amount of condemnation proceeds actually paid to Seller prior to Closing and shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer all of Seller’s rightrights to any unpaid claims in connection with the eminent domain award or compensation. If there is a taking of less than a substantial portion of the Property, title the parties shall be obligated to close, and interest in at Closing, Seller shall allow a credit to Buyer equal to the amount of condemnation proceeds actually paid to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, and Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer all of Seller’s right, title and interest in the proceeds rights to be paid on the claim of loss, less any sums expended by Seller prior to Closing unpaid claims in connection with its insurance claim (including any deductibles paid) the eminent domain award or for the restoration or repair of the damaged Propertycompensation.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Agreement of Sale (Franklin Electronic Publishers Inc)
Casualty; Condemnation. (a) If If, prior to Closing, Seller has actual knowledge that all of the Property or any material portion thereof is destroyed or damaged or if the Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or conveyance becomes the subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain or condemnation, Seller shall notify Buyer thereof within a reasonable time after receipt by Seller of such actual notice thereof but in lieu thereof of all or any portion of the Real Property occurs or is threatened event prior to Closing (Closing. In such event, Buyer shall have the option to be exercised in writing written 30 days after such notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either to: (i) terminate this Agreement by upon written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing)Seller, in which case all of event the Escrow Funds Deposit shall be returned to Purchaser and all further rights and obligations of the parties under Buyer, and, thereafter this Agreement shall terminatebe deemed to be null, except those expressly stated to survive termination, void and of no further force and effect; or (ii) proceed accept title to Closing without abatement the Property with no adjustment of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after and upon the date hereofClosing, Seller shall assign, transfer and set over to Buyer all of the right, title and interest of Seller in and to any awards that have been or that may thereafter be made for such taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may have been or that may thereafter be made for such damage or destruction, giving Buyer a credit at Closing for any deductible under such policies. If written notice is not settle or agree given by Buyer within such time, Buyer shall be deemed to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
have elected (bii) above. In the event an immaterial part of loss or damage to the Property is damaged, destroyed or any portion thereof which is not “major” (as hereinafter defined)taken, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance effect with this Agreement, without any abatement no adjustment of the Purchase Price or any liability or obligation on Price, and upon the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated hereinClosing, Seller shall provide a credit against the Purchase Price equal assign, transfer and set over to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer all of Seller’s the right, title and interest of Seller in the proceeds and to any awards that have been or that may thereafter be paid on the claim of lossmade for such taking, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, and Seller shall provide a credit against the Purchase Price equal assign, transfer and set over to Seller’s interest in Buyer any insurance proceeds that may have been collected by Seller and assign to Purchaser all of Seller’s rightor that may thereafter be made for such damage or destruction, title and interest in the proceeds to be paid on the claim of loss, less giving Buyer a credit at Closing for any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertydeductible under such policies.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Home Properties of New York Inc)
Casualty; Condemnation. (a) If In the event of any condemnation Casualty or conveyance in lieu Condemnation, the Company shall cause the Property Owner to give prompt notice thereof to RECP. Subject to the terms of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt)Loan Documents, Purchaser RECP may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before settle and adjust any claims and the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any reasonable expenses incurred by Sellerthem in the adjustment and collection of such proceeds shall be reimbursed by the Company to RECP upon request therefor, provided, however, that any such settlement (solely with respect to Casualty) shall be assigned subject to Purchaser. If any condemnation the reasonable approval of the Maguire Members if the settlement and adjustment is for an amount lexx xxxx the maximum amount of insurance available for settlement and such insurance proceeds amount is less than the amount required to rebuild or conveyance in lieu thereof is presently pending or occurs after restore the date hereof, Seller shall not settle or agree Property to accept any compensation for same without Purchaser’s its prior written consent, not to be unreasonably withheldcondition.
(b) In Subject to the event Loan Documents, if (I) any Casualty or Condemnation occurs as to which, in the reasonable judgment of RECP, (x) the Property can be restored to an economic unit not less useful than existed prior to the Casualty or Condemnation within a twelve-month period after the occurrence of the Casualty or Condemnation (or within such longer period as corresponds to the period for which the Company's business interruption insurance applies), and (y) the loss or damage to the Property in connection with any Casualty or the proceeds in connection with any portion thereof which Condemnation is not “major” in excess of $10 million; or (as hereinafter defined)II) RECP otherwise elects to cause the Company to restore the Property, this Agreement shall remain in full force and effectthen, and neither Purchaser nor Seller provided that no Trigger Event shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such eventbeen declared, the transaction proceeds of such Casualty or Condemnation (after reimbursement of any reasonable out of pocket expenses incurred by RECP and/or RECP in connection therewith) after receipt thereof by the Company shall proceed be available, to pay or to reimburse the Company for the cost of restoring, repairing, replacing or rebuilding the Property or part thereof subject to the Casualty or Condemnation, as provided for below. Subject to the Loan Documents Casualty or Condemnation proceeds not required for restoring, repairing, replacing or rebuilding (including any reserves) the Property as contemplated herein, Seller and as determined at RECP's sole discretion, shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller constitute "Net Disposition Proceeds", and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned distributed pursuant to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertySection 10.3.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Maguire Properties Inc)
Casualty; Condemnation. Seller shall promptly notify Buyer of any casualty to the Land or any condemnation proceeding commenced prior to the Close of Escrow. If any damage caused by such casualty is material or such condemnation proceeding relates to or may result in the loss of any material portion of the Land, Buyer shall, within 10 calendar days after receipt of such notification, elect in writing either (a) If any condemnation or conveyance provided Buyer is not in lieu thereof material default of all or any portion of the Real Property occurs or is threatened prior this Agreement, to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the ClosingBuyer's Termination Notice), in which case all event the Full Deposit shall become due to Buyer within 150 days after delivery of Buyer's Termination Notice in accordance with the terms of the Deposit Note, each party shall bear one-half of the Escrow Funds costs incurred to date and neither party shall be returned to Purchaser and all have any further rights and or obligations hereunder, except for those obligations expressly stated as surviving termination of the parties this Agreement, or (b) to continue to proceed under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of adjustment to the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after event upon the date hereofClose of Escrow, Seller shall not settle assign to Buyer any insurance proceeds, compensation, award or agree other payments or relief resulting from such casualty or condemnation proceedings to accept any compensation for same without Purchaser’s prior written consent, not the extent applicable to be unreasonably withheld.
(b) the Land. In the event of loss or damage Buyer fails to deliver either such election in writing prior to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement expiration of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event10-day period, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser Buyer shall be deemed to have elected to proceed continue with Closingthe Closing under clause (b) immediately preceding. For purposes of this Section 6.02, "material" shall mean in the case of (1) damage to the Land, damage which would require additional repair in connection with Buyer's development of the Land, which cost to repair would be in excess of Buyer's development costs without such damage by at least $3,000,000; and (2) the portion of the Land affected by the condemnation proceeding, 10% of the Land. Notwithstanding anything herein, in which eventthe event of damage to the Land, if Buyer elects to terminate the transaction shall proceed Agreement as contemplated hereinprovided hereinabove, Seller shall provide may elect within 10 calendar days to repair such damage prior to Closing or agree to a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Propertyrepair, in substantially which case Buyer's Termination Notice shall be of no effect and the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller parties shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationproceed to Closing.
Appears in 1 contract
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof The restoration obligations of all or any portion “Landlord” under Articles 11 and 13 of the Real Property occurs or is threatened prior to Closing (written notice of which Master Lease shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified the responsibility solely of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser Master Landlord and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) the responsibility of Sublandlord. In the event of loss casualty or damage condemnation, if the Master Lease is terminated with respect to all or a portion of the Subleased Premises pursuant to the Property provisions of the Master Lease, this Sublease shall automatically terminate at the same time and Subtenant shall have no claim against Sublandlord or Master Landlord for the loss of its interest hereunder or any portion thereof which of Subtenant's property. Any election right or option in the Master Lease with respect to restoration of the Premises or the Building or termination of the Master Lease is not “major” (as hereinafter defined), this Agreement shall remain expressly reserved to Sublandlord to exercise in full force and effectits reasonable discretion, and neither Purchaser nor Seller Subtenant shall have the a proportional right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except (as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing this Section) in connection with its insurance claim (including any deductibles paid) casualty or for the restoration or repair condemnation of the damaged Property.
(c) Subleased Premises or the Building other than by reason of damage resulting from Subtenant’s misuse, negligence, or willful misconduct. In the event that a certain number of a “major” loss days of Sublandlord’s rental obligations are actually abated by Master Landlord pursuant to Articles 11 or damage 13 of the Master Lease with regard to the Property Subleased Premises other than by reason of damage resulting from Subtenant’s misuse, negligence, or willful misconduct, a similar number of days of Subtenant’s rental obligations shall be abated under this Sublease in the same and any such abatement received by Sublandlord shall be proportionately shared with Subtenant based upon the amount of Sublandlord’s rent obligations under the Master Lease relative to the amount of Subtenant’s rental obligations under this Sublease. In the event the Building (including, without limitation, any part of the Subleased Premises) or any portion thereofother Common Areas of the Project are damaged or destroyed in whole or in part in circumstances resulting from Subtenant’s misuse, Purchaser may terminate this Agreement by written notice to Sellernegligence, in which event the Escrow Funds or willful misconduct, Subtenant shall be returned solely responsible for, at Subtenant’s sole cost and expense, all repair and restoration as may be required to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice restore the affected portions of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage Project to a condition substantially identical comparable to that existing immediately prior to the event of damage would beoccurrence and for any and all other costs, either be equal to expenses, claims, liabilities and losses incurred, whether directly or greater than $500,000 or require more than 120 days after the loss or damage to repair indirectly, by Sublandlord and restore, Master Landlord as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationresult thereof.
Appears in 1 contract
Casualty; Condemnation. In the event that prior to Closing (a) If any condemnation condemnation, eminent domain or conveyance in lieu thereof similar action is instituted or threatened for the taking or appropriation of all or any portion part of the Real Property occurs or is threatened prior to Closing affecting the construction, development, use, ownership or operation thereof (written notice of which shall be given to Purchaser by Seller promptly upon its receipt"Taking"), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (iib) proceed to Closing without abatement any fire, flood, earthquake, or other casualty destroys or damages all or any part of the Purchase PriceReal Property or the construction, in which case all proceeds development, use, ownership or award operation thereof (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof"Casualty"), Seller shall not settle notify Buyer of such fact promptly following Seller’s receipt of notice or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion knowledge thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller Buyer shall have the right ten (10) business days after receipt of such notice ("Casualty/Condemnation Election Period") to elect, in its sole discretion, to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with or proceed to Closing. If Buyer elects to terminate this Agreement, without then the Deposit actually received by Escrow Agent shall be immediately returned to Buyer (subject to any abatement surviving obligations required by this Agreement), and all awards, proceeds and compensation for such Taking or Casualty shall be the property of Seller. If Buyer fails to notify Seller of its election to terminate this Agreement within the Casualty/Condemnation Election Period, then this termination right shall be deemed waived for the Taking or Casualty. If Closing is otherwise scheduled to occur earlier, the Closing shall be extended to be consistent with the expiration of the Purchase Price Casualty/Condemnation Election Period. If Buyer elects to proceed to Closing (whether affirmatively or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such eventthrough failure to timely elect to terminate this Agreement), the transaction shall proceed as contemplated herein, then Seller shall provide a credit against the Purchase Price equal assign and transfer to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer at Closing all of Seller’s right, title and interest in, and any sums received by Seller with respect to, all damages, settlements, awards, proceeds and compensation arising therefrom (net of Seller’s costs of collection), including under Seller’s insurance policies, of whatsoever kind and nature (but in all cases exclusive of any environmental insurance claims and coverages under any current or prior policies), and Buyer shall purchase the Property as provided herein with no reduction in the proceeds Purchase Price on account thereof, other than for any deductible under Seller’s insurance policies in the case of any Casualty covered under such insurance policies, unless otherwise agreed in writing by the parties; the foregoing is expressly subject to be paid on the claim rights of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) lender whose collateral is part of or for the restoration or repair all of the damaged Property.
(c) In . Notwithstanding the event of a “major” loss or damage to the Property or any portion thereofforegoing, Purchaser Buyer may not terminate this Agreement by written notice pursuant to Seller, this Section 7 as a result of Casualty damage if the cost to repair such damage is equal to or less than $100,000 and Seller (in which event the Escrow Funds shall be returned its sole discretion) elects to Purchaser. If Purchaser does not repair such damage or give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide Buyer a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest at Closing in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair amount of the damaged Propertytotal repair cost.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Casualty; Condemnation. 10.1 If, prior to the Closing, any part of the Property is damaged or destroyed by earthquake, flood, landslide, fire or other casualty (a) If any condemnation or conveyance in lieu thereof of all a "CASUALTY"), or any portion of the Real Property occurs is taken by eminent domain or is threatened prior to Closing condemnation proceeding (written notice of which shall be given to Purchaser by Seller promptly upon its receipta "CONDEMNATION"), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser and such Casualty or Condemnation is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” a Non-Material Event (as hereinafter defined), (a) Purchaser shall not have any right or option to terminate this Agreement due to such Casualty or Condemnation and this Agreement shall remain in full force and effect, (b) the parties shall consummate the Transfer without any reduction in the Purchase Price and neither (c) at the Closing Purchaser nor shall accept the Property "AS-IS, WHERE-IS" subject to such Casualty or Condemnation (or so much of the Property as remains after such Casualty or Condemnation), as the case may be. Notwithstanding the foregoing, at the Closing, (i) in the case of a Casualty, (A) Seller shall turn over and/or assign to Purchaser (without representation, warranty or recourse against Seller) the right to receive, and Purchaser shall be entitled to receive and keep, all casualty insurance proceeds paid or payable to Seller, if any, under insurance policy(ies) with respect to such Casualty (and Seller shall have no obligation to repair such casualty), (B) Seller shall credit to Purchaser at the Closing the amount of any insurance deductible and (C) Purchaser shall pay to Seller at Closing the amount of the actual, reasonable expenses incurred by Seller in making repairs occasioned by such Casualty which are required by applicable Legal Requirements, or which Seller, in its reasonable discretion, deems necessary for public safety reasons or to maintain or preserve the Property to the standards as of the date hereof, or, (ii) in the case of a Condemnation, (A) Seller shall turn over and/or assign to Purchaser (without representation, warranty or recourse against Seller) the right to receive, and Purchaser shall be entitled to receive and keep, all condemnation awards, if any, paid or payable to Seller with respect to such Condemnation, and (B) Purchaser shall pay to Seller at Closing the amount of the actual, reasonable expenses incurred by Seller in making repairs to the Property which are required by applicable Legal Requirements, or which Seller, in its reasonable discretion, deems necessary for public safety reasons or to maintain or preserve to the standards as of the date hereof, occasioned by such Condemnation.
10.2 If a Casualty occurs, or all or any portion of the Property is taken by Condemnation prior to the Closing, Seller shall notify Purchaser of such fact promptly after obtaining knowledge thereof and, if and only if such Casualty constitutes a Material Event, Purchaser shall have the right to terminate this Agreement by giving Notice to Seller (and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all Escrow Agent) not later than ten (10) days after receipt of Seller’s right, title and interest in the proceeds to be paid on the claim 's Notice of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of such Casualty which is a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to SellerMaterial Event, in which event this Agreement shall terminate on the date of the giving of such Notice by Purchaser (except for those provisions of this Agreement that survive any termination of this Agreement) and Escrow Funds Agent shall be returned disburse the Deposit to PurchaserPurchaser within five (5) Business Days after Escrow Agent receives Notice of such termination. If Purchaser does not give written notice of termination of fails to elect to terminate this Agreement as aforesaid within twenty such ten (2010) days after Seller sends Purchaser written notice of the occurrence of major loss or damageday period, then Purchaser shall be deemed to have elected waived such termination right with respect to proceed such Casualty or Condemnation and the provisions of Section 10.1 shall apply as if such Casualty or Condemnation were a Non-Material Event. A "MATERIAL EVENT" with Closing, in which event, respect to the transaction shall proceed as contemplated herein, Seller shall provide a credit against Property means (a) any damage by Casualty if the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all cost of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of such Casualty is reasonably anticipated to exceed $562,500 to repair or restore or (b) any taking by Condemnation (i) of at least five (5%) percent of the damaged Propertygross number of square feet contained in the Building, (ii) that would decrease the parking spaces now existing or potentially existing on the Property to a level that is not in compliance with applicable Legal Requirements and (iii) that would eliminate access to the Property from all public xxxxxxx, xxxxx, xxxxxxx, alleys, expressways and highways. A "NON-MATERIAL EVENT" with respect to the Property means any Casualty or Condemnation which is not a Material Event.
(d) For purposes 10.3 Seller shall promptly provide to Purchaser copies of any correspondence relating to any claims related to any Casualty or Condemnation under the relevant insurance policies or against the Governmental Entity effecting the Condemnation, and shall promptly advise Purchaser of all material developments concerning such claims. Seller shall not settle or compromise any claims related to any Casualty or Condemnation under the relevant insurance policies or against the Governmental Entity effecting the Condemnation without Purchaser's consent, which consent may not be unreasonably withheld, delayed or conditioned. Seller shall cooperate with Purchaser to effect the assignment of the right to receive insurance or condemnation proceeds to Purchaser and will execute and deliver all such instruments as are reasonably necessary to complete that assignment.
10.4 The provisions of this Section 1210 shall be construed as express provisions in lieu of the provisions of the Uniform Vendor and Purchaser Risk Act, “major” loss or damage refers to loss or damage which the parties agree shall be inapplicable to the Property or any portion thereof: (i) such that transactions contemplated hereby.
10.5 The provisions of this Section 10 shall survive the cost Closing, but not the earlier termination of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationthis Agreement.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Osi Pharmaceuticals Inc)
Casualty; Condemnation. Sellers agree to give Purchaser prompt notice of any casualty affecting the Land, the Improvements or any material portion of the Personalty between the date hereof and the Closing Date or of any actual or threatened (ain writing) If any taking or condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs Land or is threatened the Improvements.
8.1.1 If prior to the Closing there shall occur:
(written notice a) damage to the Property caused by fire or other casualty which would cost an amount equal to three and one-half percent (3.5%) of which shall the Purchase Price or more to repair or restore, as reasonably determined by Sellers (“Material Casualty”); or
(b) the taking or condemnation of all or any portion of the Land and the Improvements (i) cause the Hotel to be given in violation of any Applicable Law, including, without limitation, zoning laws and requirements, (ii) result in any permanent material reduction or restriction in access to Purchaser by Seller promptly upon its receiptthe Land and Improvements, or (iii) have a materially adverse effect on the business as conducted prior to such taking (in Purchaser’s commercially reasonable discretion) (“Material Taking”); then in any such event, Purchaser may at its option, either (i) option terminate this Agreement Contract by written notice to Seller given Sellers within twenty ten (2010) days after Purchaser is notified of such actual has received the notice referred to above or possible proceedings (but before at the Closing), in which case all of whichever is later. If Purchaser does not elect to terminate this Contract, then the Escrow Funds Closing shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing take place as provided herein without abatement of the Purchase Price, and Sellers shall assign to Purchaser at the Closing without recourse or warranty all interest of Sellers in which case all and to any insurance proceeds or award (less condemnation awards which may be payable to Sellers on account of any expenses incurred by Seller) such occurrence and Purchaser shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (receive as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller portion of the deductible that has been applied to covered losses).
8.1.2 If prior to the Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or there shall occur damage to the Property other than a Material Casualty, or a taking or condemnation other than a Material Taking, then in any portion thereofsuch event, Purchaser may shall have no right to terminate its obligations under this Agreement by written notice to SellerContract, in which event the Escrow Funds but there shall be returned assigned to Purchaser. If Purchaser does not give written notice at Closing without recourse or warranty all interest of termination Sellers in and to any insurance proceeds or condemnation awards which may be payable to Sellers on account of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the any such occurrence of major loss or damage, then and Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed receive as contemplated herein, Seller shall provide a credit against the Purchase Price equal the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair portion of the damaged Propertydeductible that has been applied to covered losses).
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Procaccianti Hotel Reit, Inc.)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of If, prior to the Closing Date, all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement destroyed or damaged by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual fire or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, other casualty or (ii) taken as a result of any condemnation or eminent domain proceedings, Sellers will notify Purchaser of such casualty or condemnation. Purchaser will have the option, in the event of a Material Casualty Event or Material Condemnation, to terminate this Agreement in its entirety upon notice to Sellers given not later than ten (10) Business Days after receipt of Sellers’ notice. If this Agreement is terminated, thereafter neither Sellers nor Purchaser will have any further rights or obligations to the other hereunder except with respect to the Termination Surviving Obligations. If Purchaser does not elect to terminate this Agreement within such ten (10) Business Day period, or if the fire or other casualty or condemnation does not rise to the level of being a Material Casualty Event or Material Condemnation, as applicable, Sellers will not be obligated to repair such damage, destruction or taking, but (a) the applicable Seller will assign and turn over to Purchaser all of the insurance proceeds or condemnation awards net of reasonable collection costs (or, if such have not been awarded, all of its right, title and interest therein, including on account of business or rental interruption or a temporary taking relating to the period of time from and after Closing) payable with respect to such fire or other casualty (excluding any proceeds of insurance that are payable on account of any business 46 interruption, rental insurance or similar coverage intended to compensate such Seller for loss of rental or other income from the Property attributable to periods prior to the Closing) or condemnation, and (b) the parties will proceed to Closing pursuant to the terms hereof without abatement of the Purchase Price, in which case all except that Purchaser will receive a credit against cash due at Closing for the amount of the deductible on such insurance policy less any amounts expended by the applicable Seller to collect any such insurance proceeds or award (less to make such repairs approved by Purchaser or otherwise made to remedy any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after unsafe conditions at the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldProperty.
(b) In As of the event Effective Date, for the purpose of loss or damage adequately protecting Purchaser’s insurable interest in the Property, Purchaser and its designees shall be added as named insureds to Sellers’ existing property, terrorism and boiler and machinery policies with respect to the Property to cover property and business interruption losses resulting from a pre-Closing casualty or any portion thereof which is not “major” (condemnation, in each case for the period from the Closing Date through the date of the final restoration and repair of such Property. On the Effective Date, a copy of the endorsement evidencing Purchaser’s and its designees’ status as hereinafter defined), this Agreement shall remain in full force and effect, and neither named insureds has been provided to Purchaser. Purchaser nor Seller shall have the right to terminate this Agreement and communicate with the parties shall nonetheless consummate this transaction in accordance Sellers’ insurers with this Agreement, without respect to the Sellers’ insurance policies if a casualty or condemnation has occurred at any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyIndividual Properties.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Casualty; Condemnation. (a) Section 7.01 If at any condemnation time prior to Closing, the Property is destroyed or conveyance in lieu thereof damaged as a result of all fire or any other casualty (collectively, a “Casualty”), Seller shall give written notice (“Casualty Notice”) thereof to Buyer. If the Property is the subject of a Casualty, and the cost to repair such Casualty exceeds twenty percent (20%) of the Purchase Price, as determined by a contractor selected by Seller and reasonably acceptable to Buyer, Buyer shall have the right, as its sole option; (i) to terminate this Agreement (by written notice to Seller within ten (10) business days after Seller’s giving the Casualty Notice and estimate of repair from Seller) and have the Deposit returned; or (ii) if Buyer does not terminate this Agreement (or if the Casualty is less than twenty percent (20%) of the Purchase Price and provided same is covered by Seller’s insurance) the proceeds of any insurance with respect to the Property paid between the date of this Agreement and Closing (less amounts incurred by Seller in performing necessary repairs to protect the Property) plus the amount of any deductible or retention shall be paid to Buyer at the time of Closing, and all unpaid claims and rights in connection with losses to the Property shall be assigned to Buyer at Closing. Risk of loss shall pass to Buyer at Closing.
Section 7.02 If either: (i) all of the Property; or (ii) a substantial portion of the Real Property occurs Property; is taken between the date of this Agreement and the date of Closing by the exercise of the power of eminent domain by any local, state, or is threatened prior to Closing federal body, Seller shall notify Buyer (written notice of which shall be given to Purchaser by Seller promptly upon its receipt“Condemnation Notice”), Purchaser and Buyer may at its optionchoose, either (i) terminate this Agreement by written notice to Seller given within twenty ten (2010) business days after Purchaser is notified of such actual or possible proceedings (but before Seller’s giving the Closing)Condemnation Notice, in which case all of to cancel this Agreement. In the Escrow Funds event Buyer does not so cancel this Agreement, Buyer shall be returned to Purchaser and all further rights and obligations of complete Closing at the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the full Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree allow a credit to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage Buyer at Closing equal to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement amount of condemnation proceeds actually paid to Seller prior to Closing and shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer all of Seller’s rightrights to any unpaid claims in connection with the eminent domain award or compensation. If there is a taking of less than a substantial portion of the Property, title the parties shall be obligated to close, and interest in at Closing, Seller shall allow a credit to Buyer equal to the amount of condemnation proceeds actually paid to be paid on the claim of loss, less any sums expended by Seller prior to Closing Closing, and Seller shall assign to Buyer all of Seller’s rights to any unpaid claims in connection with its insurance claim (including any deductibles paid) the eminent domain award or for the restoration or repair compensation. A “substantial” portion of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest taken in the proceeds to be paid on the claim event such action involves a taking of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration any material part of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, Building as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having any entryway from a material adverse impact upon the ability public or feasibility of operating a nursing home facility on private road that materially impedes access to the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten or (10iii) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate such of the restoration costs and time for restorationparking area as to cause the parking to be non-compliant with applicable regulations or the terms of existing variances or site plans.
Appears in 1 contract
Samples: Agreement of Sale (Blonder Tongue Laboratories Inc)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of before the Closing Date, all or any portion of the Real Property occurs or Purchased Assets is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement taken by written notice eminent domain or is the subject of a pending or (to Seller given within twenty (20the Actual Knowledge of Seller) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in contemplated taking which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationhas not been consummated, or (ii) proceed to Closing without abatement damaged or destroyed by fire or other casualty, Seller shall notify Buyer promptly in writing of such fact, then if the parties consummate the transactions contemplated hereby (including payment of the Purchase Price), (x) in which the case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereofof a condemnation, Seller shall not assign or pay, as the case may be, any proceeds thereof to Buyer on the Closing Date (to the extent received prior to the Closing Date or promptly upon receipt if received thereafter) and (y) in the case of a casualty, Seller shall either restore the damage or assign the insurance proceeds therefor (and pay the amount of any deductible and/or self-insured amount in respect of such casualty) to Buyer on the Closing Date (to the extent received prior to the Closing Date or promptly upon receipt if received thereafter). Notwithstanding the above, if such casualty or loss results in a Material Adverse Effect prior to the Closing Date and the parties elect to consummate the transactions contemplated hereby, Buyer and Seller shall negotiate to settle the loss resulting from such taking (and such negotiation shall include, without limitation, the negotiation of a fair and equitable adjustment to the Closing Payment Amount and Final Net Book Value). If no such settlement is reached within sixty (60) days after Seller has notified Buyer of such casualty or agree loss, then Buyer or Seller may terminate this Agreement pursuant to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) Section 7.12(e). In the event of loss damage or damage destruction which Seller elects to the Property or any portion thereof which is not “major” (as hereinafter defined)restore, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall will have the right to terminate this Agreement postpone the Closing Date for up to four (4) months. Buyer will have the right to inspect and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without observe all repairs necessitated by any abatement of the Purchase Price such damage or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertydestruction.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Option and Purchase and Sale Agreement (Keyspan Corp)
Casualty; Condemnation. (a) A. A fire or other casualty which damages or destroys the Building or other Improvements or which otherwise damages or adversely affects the Property shall not terminate this Contract unless Purchaser so elects as herein provided. Seller shall promptly notify Purchaser in writing of the nature of the casualty, the amount of insurance coverage, and the anticipated loss adjustment with respect to the Property. Seller shall further promptly notify Purchaser in writing of the amount of the award which the insurer will pay in respect of such loss. If any condemnation Purchaser so elects, the Closing shall be postponed pending Seller's receipt of such information so that Purchaser may preserve the right of termination herein provided. In the event of such casualty, the insurance proceeds for the Property in respect of such loss shall be applied in payment of part or conveyance in lieu thereof all of all or any the Purchase Price. If the insurance proceeds exceed that portion of the Real Property occurs or is threatened Purchase Price payable by Purchaser to Seller at Closing, then such excess shall be retained by Seller. Purchaser may elect to terminate this Contract by giving written notice thereof to Seller at any time after such casualty and prior to Closing (written notice the earlier to occur of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by 7 days after receipt of Seller's written notice to Seller given within twenty (20) days after Purchaser is notified stating the amount of the award which the insurer will pay in respect of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, loss or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs 60 days after the date hereof, Seller of such casualty. Purchaser's failure to give such written notice within such time shall not settle or agree to accept any compensation for same without be deemed a waiver of Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right 's election to terminate this Agreement and Contract.
B. If Seller is notified by any governmental agency or authority that the parties Property, or any part or parts thereof, will be condemned or otherwise taken under power of eminent domain, or if Seller learns that a condemnation or taking is contemplated by any governmental agency or authority, then Seller shall nonetheless consummate this transaction promptly give Purchaser written notice thereof including, with or in accordance with this Agreementsuch written notice, without any abatement a copy of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected notice received by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair a description of the damaged Property.
(c) In the event of a “major” loss or damage information learned by Seller. Within 21 days after Seller gives such notice to the Property or any portion thereofPurchaser, Purchaser may terminate this Agreement shall, by written notice to Seller, in which event the Escrow Funds shall be returned elect either to Purchaserrescind this Contract or to perform notwithstanding such condemnation or taking. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss elects to perform notwithstanding such condemnation or damagetaking, then Purchaser shall be deemed entitled to have elected all proceeds paid by the applicable governmental agencies or authorities in respect thereof. Purchaser's failure to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) give such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, election within such time shall be deemed an estimate of the restoration costs and time for restorationelection to rescind this Contract.
Appears in 1 contract
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of If, prior to the Closing Date, all or any portion part of the Real Property occurs is substantially damaged by fire, casualty, the elements or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereofother cause, Seller shall not settle or agree immediately give notice to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effectBuyer, and neither Purchaser nor Seller Buyer shall have the right to terminate this Agreement and receive back all Xxxxxxx Money, including interest accrued thereon, by giving written notice within thirty (30) days after Seller’s notice. If Buyer shall fail to give the notice, then the parties shall nonetheless consummate proceed to Closing, and Seller shall assign to Buyer all rights to insurance proceeds resulting from such event and the Purchase Price will be reduced by the amount of Seller’s deductible and any uninsured loss. For purposes of this transaction Section, the words “substantially damaged” mean damage to any one of the buildings included in accordance the Property that would either (i) constitute an uninsured loss in excess of $250,000.00, or (ii) cost (as so determined) in excess of $500,000.00 or more to repair. In the event of damage to the Property by fire, casualty, the elements or other cause that does not rise to the level of “substantially damaged” based on the definition above, Seller will either repair such damage or assign to Buyer all rights to insurance proceeds resulting from such event. In the event of any casualty, Seller agrees to consult with Buyer and cooperate with reasonable requests of Buyer to complete repairs in a way that is consistent with any renovation plans that may be contemplated by Buyer. If, prior to the Closing Date, any governmental entity commences any eminent domain proceedings (“Proceedings”) against all or any part of the Property, Seller shall immediately give notice to Buyer of such fact, and, if such Proceedings are material, then Buyer shall have the option (to be exercised by written notice to Seller within thirty (30) DMNORTH #7708141 v4 days after Seller’s notice), to terminate this Agreement, without in which event Title Company shall return the Xxxxxxx Money, including interest accrued thereon, to Buyer. Upon such return, neither Seller nor Buyer shall have any abatement of further rights or obligations under this Agreement, except for those covenants that expressly survive. If Buyer does not give such notice, or if such Proceedings are not material, then there shall be no reduction in the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such eventPrice, the transaction shall proceed as contemplated herein, and Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer at the Closing Date all of Seller’s right, title title, and interest in the proceeds and to any award made or to be paid on made in the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage Proceedings. Prior to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated hereinClosing Date, Seller shall provide a credit against not designate counsel, appear in, or otherwise act with respect to the Purchase Price equal to SellerProceedings without Buyer’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) written consent. For purposes of this Section 12Section, the words “majorProceedings are material” loss or damage refers to loss or damage to shall mean the Property or any portion thereoftaking includes: (i) such that any part of any building included in the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to SellerProperty, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility parking that cannot be replaced on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate remaining portions of the restoration costs and time for restorationapplicable Real Property.
Appears in 1 contract
Casualty; Condemnation. (a) If any there is a condemnation of the Site, the Easements and/or the Property (or conveyance a portion thereof which is sufficient to render the Site and/or the Easements unsuitable for Tenant’s purposes), including, without limitation, a transfer of the Site, the Easements and/or the Property or a part thereof by consensual deed in lieu thereof of all or any condemnation, then this Lease shall, at the option of Tenant, terminate upon transfer of title to the condemning authority, without further liability to either party hereunder (except as otherwise expressly provided herein). The Rent due hereunder shall be prorated to the date of taking, and Owner shall reimburse to Tenant the portion of the Real Property occurs or is threatened prior then current Annual Rent attributable to Closing (written notice of which the period subsequent to such taking. Tenant and Owner shall be given entitled to Purchaser by Seller promptly upon its receipt)pursue their own separate condemnation awards with respect to any such taking (which award to Tenant may include, Purchaser may at its optionwhere applicable, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all value of the Escrow Funds shall be returned Solar Facility, moving expenses, prepaid rent to Purchaser the extent not reimbursed to Tenant by Owner, and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldbusiness dislocation expenses).
(b) In If the Site, the Easements and/or the Property are damaged or destroyed to an extent sufficient to render the Site and/or the Easements unsuitable for Tenant’s purposes, Tenant shall have the right, but not the obligation, to elect to not rebuild, replace or repair any improvement and to terminate this Lease as of the date that such damage or destruction occurred, without prejudice to or otherwise affecting any rights or remedies that Tenant may have hereunder or at law or in equity, and the Annual Rent due hereunder shall be prorated to such date of termination.
(c) Notwithstanding anything in this Lease to the contrary, in the event of loss any casualty to or damage to condemnation of the Property or any portion thereof which is not “major” during such time as any Security Instrument (as such term is hereinafter defined), this Agreement ) shall remain unsatisfied, the Financing Entity in full force whose favor such Security Instrument has been granted shall be entitled to receive all insurance proceeds and/or condemnation awards (up to the amount of the indebtedness secured by such Security Instrument) otherwise payable to Tenant and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction apply such proceeds in accordance with this Agreement, without any abatement the terms of the Purchase Price or any liability or obligation on Security Instrument, and shall further have the part of Seller by reason of said damage except as set forth right, but not the obligation, to restore the Property in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair same is damaged or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationdestroyed.
Appears in 1 contract
Samples: Land Lease Agreement
Casualty; Condemnation. (a) All risk of loss or damage to any of the Furniture, Fixtures and Equipment and Real Estate shall be on Seller until Closing.
(b) In the event that any item of Furniture, Fixtures and Equipment is damaged or destroyed prior to the Effective Time by fire or other casualty, and if Seller has not replaced such item with a comparable item, Purchaser may, at its option, decline to purchase such damaged or destroyed item or accept the insurance proceeds paid or payable to Seller in respect of such damaged or destroyed item.
(c) In the event that the Real Property is damaged or destroyed by fire or other casualty prior to the Effective Time and is not restored by Seller before Closing, Seller shall promptly give written notice (“Casualty Notice”) thereof to Purchaser, and Purchaser shall elect either: (i) to terminate this Agreement by written notice to Seller within fifteen (15) days after the receipt of the Casualty Notice, in which event this Agreement shall become null and void, neither party shall have any further rights or obligations hereunder, or (ii) to proceed with Closing, in which case Purchaser shall receive all insurance proceeds (or all rights of Seller to receive such proceeds) paid or payable with respect to damage or destruction of the Real Property. If such termination notice is not timely given, this Agreement shall continue in full force and effect in accordance with its remaining terms Seller covenants in this connection that it will maintain fire insurance on the Real Property on a replacement cost basis at all times prior to the Effective Time.
(d) In the event Seller receives any condemnation notice of a taking of the Real Property or conveyance in lieu thereof any portion thereof, Seller will send a copy of such notice to Purchaser. If all or any portion of the Real Property occurs has been taken or is threatened taken prior to Closing (written Closing, or if any proceedings for a taking has been or is commenced prior to Closing, or if notice of which shall be the contemplated commencement thereof has been or is given prior to Purchaser by Seller promptly upon its receipt)Closing, Purchaser may shall have the right, at its sole option, either (i) terminate of terminating this Agreement by written notice to Seller given within twenty fifteen (2015) days after receipt by Purchaser is notified of such actual or possible proceedings (but before written notice of the Closing)occurrence of the event giving rise to the right of termination, in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under event this Agreement shall terminatebecome null and void, except those expressly stated to survive termination, neither party shall have any further rights or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaserobligations hereunder. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall Purchaser does not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price shall be reduced by the total of any awards or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected damages received by Seller (or the holder of any existing mortgage) and assign Seller shall, at Closing, be deemed to have assigned to Purchaser all of Seller’s right, title and interest in and to any awards or damages to which Seller may have become entitled or may thereafter be entitled by reason of any exercise of the proceeds power of eminent domain or condemnation with respect to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair taking of the damaged Property.
(c) In the event of a “major” loss or damage to the Real Property or any portion thereof, . Seller shall not negotiate or settle any claims for compensation prior to Closing without Purchaser’s participation and written approval if Purchaser may does not terminate this Agreement by written notice to Seller, in which event as a result of the Escrow Funds shall be returned to Purchasertaking. If Purchaser does such termination notice is not give written notice of termination of timely given, this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, continue in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest full force and effect in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection accordance with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertyremaining terms.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Orrstown Financial Services Inc)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of A. Seller assumes all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event risk of loss or damage to the Property by fire or other casualty until the deed of conveyance to the Property is delivered to Purchaser at Closing. If, at any time prior thereto, any portion of the Property is destroyed or damaged as a result of fire or any portion other cause whatsoever, Seller shall promptly give written notice thereof to Purchaser. In the event that (a) the total cost to repair or restore such destruction or damage, as determined by Seller’s insurance claim adjuster, exceeds $500,000.00, and/or (b) the estimated time to restore or repair such destruction or damage, as determined by Seller’s insurance claim adjuster, exceeds one hundred fifty (150) days from the casualty date, and/or (c) any of the tenants listed on Exhibit G would have the right to terminate its Lease as a result of such fire or casualty, Purchaser shall have the right to terminate this Agreement by written notice delivered to Seller within twenty (20) days following the date upon which is Purchaser receives Seller’s written notice of the destruction or damage. If Purchaser does not “major” (as hereinafter defined)have the right to terminate this Agreement, or elects not to do so, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement effect and the parties shall nonetheless consummate proceed to Closing without any reduction or adjustment in the Purchase Price, except that all insurance proceeds, if any (and all rights of Seller as landlord under the Lease, and in respect of policies of insurance maintained by tenants) will be assigned to Purchaser, exclusive of amounts expended by Seller and reimbursable to Seller to stabilize or repair such damage prior to Closing, and Seller shall pay to Purchaser or credit the Purchase Price in the amount of Seller’s insurance deductible, self-insured retention and/or any amount any Tenant’s insurance proceeds to which Seller is entitled.
B. If, prior to Closing, all or any part of the Property is taken by eminent domain proceedings or a notice of any eminent domain proceeding with respect to the Property or any part thereof is received by the Seller, the Seller shall promptly give notice thereof to Purchaser and Purchaser shall have the right, exercisable in writing within fifteen (15) days of receipt of such notice to either (i) complete the consummation of the transactions described hereunder in accordance with this transaction Agreement with no reduction in Purchase Price; or (ii) terminate this Agreement, in which event the Deposit shall be refunded to the Purchaser and this Agreement shall be null and void and both Seller and Purchaser shall be released from any and all further obligation and liability hereunder. Failure to deliver such written notice shall be deemed an election by Purchaser to complete Closing. If the Purchaser elects (or is deemed to have elected) to complete Closing, Closing shall be completed in accordance with this Agreement, without any abatement of except that at Closing the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller assign, transfer, and assign pay to Purchaser all rights that the Seller has to any of Seller’s right, title and interest in the proceeds to be paid on of such eminent domain proceedings and all proceeds from such proceedings theretofore or thereafter received by the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertySeller.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Broad Street Realty, Inc.)
Casualty; Condemnation. (a) If Sellers agrees to give Purchaser prompt notice of any casualty affecting the Land, the Improvements or the Personalty between the date hereof and the Closing Date or of any actual or threatened taking or condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs Land or is threatened the Improvements.
(a) If prior to the Closing there shall occur:
(written notice i) damage to either Property caused by fire or other casualty which would cost $500,000 or more to repair or restore, as reasonably determined by Sellers; or
(ii) the taking or condemnation of which shall be given to Purchaser by Seller promptly upon its receipt)all or any portion of the Land and the Improvements as would materially interfere with the continuing use thereof as a retail shopping center; then in any such event, Purchaser may at its option, either (i) option terminate this Agreement Contract by written notice to Seller given Sellers within twenty ten (2010) days after Purchaser is notified of such actual has received the notice referred to above or possible proceedings (but before at the Closing), in which case all of whichever is earlier. If Purchaser does not elect to terminate this Contract, then the Escrow Funds Closing shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing take place as provided herein without abatement of the Purchase Price, in which case all and any insurance proceeds or award (less any expenses incurred by Seller) shall condemnation awards which may be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage payable to the Property Company on account of any such occurrence, or any portion thereof which is not “major” (as hereinafter defined)rights to such proceeds or awards, this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement an asset of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction Company and Purchaser shall proceed as contemplated herein, Seller shall provide receive a credit against the Purchase Price equal in the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller portion of the deductible that has been applied to covered losses). For example, if there is a $25,000 deductible under the all risk policy, a water pipe breaks and the Company spends $10,000 on emergency repairs prior to Closing in connection with its insurance claim (including any deductibles paid) or Closing, Purchaser would receive a credit for $15,000, which is the restoration or repair balance of the damaged Propertydeductible, and the Company would have a claim for any other covered loss.
(cb) In If prior to the event Closing there shall occur:
(i) damage to either Center caused by fire or other casualty which would cost less than $500,000 to repair or restore, as reasonably determined by Sellers; or
(ii) the taking or condemnation of a “major” loss portion of the Land and the Improvements which would not materially interfere with the continuing use of a Center as a retail shopping center; then in any such event, Purchaser shall have no right to terminate its obligations under this Contract, but any insurance proceeds or damage condemnation awards which may be payable to the Property Company on account of any such occurrence, and any rights to receive such proceeds or any portion thereofawards, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice remain an asset of the occurrence of major loss or damage, then Company and Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide receive a credit against the Purchase Price equal in the amount of any unpaid deductible applicable to Seller’s interest in such insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, (less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair portion of the damaged Propertydeductible that has been applied to covered losses).
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Contract of Sale and Purchase (Ramco Gershenson Properties Trust)
Casualty; Condemnation. a. In the event of the occurrence of any of the following prior to the Closing: (ai) If the commencement of any eminent domain or condemnation or conveyance in lieu thereof of all or proceedings with respect to any material portion of the Real Property occurs Property, or is threatened prior (ii) any casualty to Closing (written notice any material portion of which shall be given to Purchaser by Seller promptly upon its receipt)the Property, Purchaser may at its option, either (i) shall have the right to terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified until the earlier of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after the date Purchaser receives written notice of such damage, taking or condemnation, or the Closing Date. For purposes of this Section 13, “material portion” shall mean any one of the following: the cost to repair any damage to the Property or the amount of any condemnation award is reasonably expected to exceed $1,000,000, (ii) access to or parking on the Property is materially adversely affected, (iii) the condemnation and/or damage results in the Property violating any laws or failing to comply with zoning or any covenants, conditions or restrictions affecting the Property, or (iv) the condemnation and/or damage entitles any tenant to terminate its occurrenceLease. If Purchaser elects to terminate this Agreement, the Deposit shall be returned to Purchaser, and Seller and Purchaser shall be relieved of any further obligations hereunder, except for those obligations that expressly survive by their terms.
b. In the event of (x) the occurrence of any casualty to any immaterial portion of the Property, (y) the occurrence of an eminent domain or condemnation proceeding with respect to an immaterial portion of the Property, or (z) if Purchaser does not terminate this Agreement pursuant to Section 13(a) above, the obligations of the parties hereunder shall be unaffected and the parties shall proceed to Closing. In such case, Seller shall give deliver to Purchaser, at Closing, as applicable, condemnation proceeds received by Seller or the proceeds, if any, of all insurance coverage applicable to such damage previously received by Seller (or an assignment of all insurance and/or condemnation (as applicable) proceeds applicable thereto) and Purchaser written notice shall be entitled to receive a credit at Closing for the amount of any casualty and, if then available, an estimate deductible. Seller covenants and agrees to maintain commercially reasonable property insurance coverage with respect to the Real Property during the term of the restoration costs and time for restorationthis Agreement.
Appears in 1 contract
Samples: Sales Agreement (KBS Real Estate Investment Trust, Inc.)
Casualty; Condemnation. (a) If any there is a condemnation of the Site, the Easements and/or the Property (or conveyance a portion thereof which is sufficient to render the Site and/or the Easements unsuitable for Tenant’s purposes), including but not limited to a transfer of the Site, the Easements and/or the Property or a part thereof by consensual deed in lieu thereof of all condemnation, then this Lease shall, at the option of Tenant, terminate upon transfer of title to the condemning or any portion deeded authority, without further liability to either party hereunder (except as otherwise expressly provided herein). The lease payment due hereunder shall be prorated to the date of the Real Property occurs or is threatened prior taking, and Tenant shall not be required to Closing (written notice make any payments for the period following the date of which such taking. Tenant and Owner shall be given entitled to Purchaser by Seller promptly upon its receipt)pursue their own separate condemnation awards with respect to any such taking (which award to Tenant may include, Purchaser may at its optionwhere applicable, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all value of the Escrow Funds shall be returned Solar Facility, moving expenses, prepaid rent to Purchaser the extent not reimbursed to Tenant by Owner, and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldbusiness dislocation expenses).
(b) In If the Site, the Easements and/or the Property are damaged or destroyed to an extent sufficient to render the Site and/or the Easements unsuitable for Tenant’s purposes, Tenant shall have the right, but not the obligation, to not rebuild, replace or repair any improvement and to terminate this Lease as of the date that such damage or destruction occurred, without prejudice to or otherwise affecting any rights or remedies that Tenant may have hereunder or at law or in equity, and the Annual Rent due hereunder shall be prorated to such date of termination.
(c) Notwithstanding anything in this Lease to the contrary, in the event of loss any casualty to or damage to condemnation of the Property or any portion thereof which is not “major” during such time as any Security Instrument (as such term is hereinafter defined), this Agreement ) shall remain unsatisfied, the Financing Entity in full force whose favor such Security Instrument has been granted shall be entitled to receive all insurance proceeds and/or condemnation awards (up to the amount of the indebtedness secured by such Security Instrument) otherwise payable to Tenant and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction apply such proceeds in accordance with this Agreement, without any abatement the terms of the Purchase Price or any liability or obligation on Security Instrument, and shall further have the part of Seller by reason of said damage except as set forth right, but not the obligation, to restore the Property in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair same is damaged or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationdestroyed.
Appears in 1 contract
Samples: Land Lease Agreement
Casualty; Condemnation. (a) If any condemnation Notwithstanding anything to the contrary implied or conveyance provided by law or in lieu thereof of all or equity, but subject to Section 13(b) below, if, after the date hereof but prior to the Closing, any portion of the Real Property occurs Building is damaged by fire, the elements or any other casualty (a “Casualty”), or if any portion of the Premises is threatened taken by eminent domain or other similar proceeding (a “Taking”), this Agreement shall remain in full force and effect and the parties shall nonetheless proceed to the Closing in accordance with this Agreement.
(b) Notwithstanding the foregoing, if, after the date hereof but prior to Closing (written notice the Closing, all or substantially all of which shall be given to Purchaser the Premises is taken by Seller promptly upon its receipt)a Taking, Purchaser may at its optionmay, either (i) terminate this Agreement by written notice to Seller given within twenty fifteen (2015) days after notice to Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds Taking, elect to terminate this Agreement. In the event that Purchaser shall so timely elect, the Deposit shall be returned to Purchaser Purchaser, and the terms of Section 20(h) hereof shall control and govern. Unless this Agreement is so terminated, or if (i) less than all further rights and obligations or substantially all of the parties under this Agreement shall terminate, except those expressly stated to survive terminationPremises is taken by a Taking, or (ii) proceed all or any portion of the Premises is destroyed by a Casualty, then this Agreement shall remain in full force and effect (except that “Property” shall be deemed to exclude the portion so taken by a Taking), in which event Seller shall, on the Closing without abatement Date, and upon receipt of the balance of the Purchase Price, in which case all proceeds or award (less x) with respect to a Taking, assign to Purchaser, by documentation reasonably satisfactory to Purchaser (and, if applicable, the Lender), any expenses incurred awards due to Seller (and/or, if previously received by Seller, pay to Purchaser, any awards so collected by Seller) with respect to any such Taking, after deducting any reasonable amount which Seller may have agreed or been obligated to pay in obtaining such award, including reasonable attorneys’ fees and disbursements, or (x) with respect to a Casualty, credit to Purchaser at Closing the amount of net insurance proceeds received by Seller with respect to such Casualty and shall assign to Purchaser its rights to any such insurance proceeds yet to be assigned received by Seller, if any, on the applicable insurance policy for the Property applicable to Purchasersuch claim.
(c) Seller shall notify Purchaser of any Casualty and of any proposed Taking promptly after Seller shall have knowledge thereof. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not adjust or settle any claims in connection with any Casualty or agree to accept proposed Taking or enter into any compensation construction or other contract for same the repair or the restoration of the Property without Purchaser’s prior written consent, not to be unreasonably withheldwithheld or conditioned.
(bd) The provisions of this Section 13 are intended to constitute an “express provision to the contrary” within the meaning of Section 5-1311 of the New York General Obligations Law.
(e) In the event of loss or damage any Taking occurring on the Scheduled Closing Date, such Closing shall be extended to the Property or any portion thereof which is not “major” tenth (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have 10th) day following the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Scheduled Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyDate.
(cf) In the event The terms of a “major” loss or damage this Section 13 shall be subject to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice terms of the occurrence of major loss Sotheby’s Lease, and nothing in this Section 13 is intended or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide constitute a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all waiver or modification of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair provision of the damaged PropertySotheby’s Lease.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Casualty; Condemnation. (a) If any a Major Event occurs and either party exercises its right not to close on the conveyance of the School Unit contemplated by this Agreement, then this Agreement shall terminate and the insurance proceeds or the condemnation award, as the case may be, relating to the School Unit shall be equitably apportioned between SCA and Developer as applicable;
(b) If (i) a Major Event occurs and Developer exercises its right not to close on the conveyance of the School Unit contemplated by this Agreement, (ii) SCA was not in default beyond applicable notice and cure periods under this Agreement at the time the Major Event occurred and (iii) Developer, on or conveyance in lieu thereof prior to the second (2nd) anniversary of all the date upon which such Major Event occurred, constructs a building on the Land, then, Developer shall not, on or prior to such second (2nd) anniversary, sell or lease such building (or any portion thereof in excess of 50,000 gross square feet) to any party for the Real Property occurs primary purpose of operating a pre-K, kindergarten, elementary or is threatened prior to Closing middle school through eighth grade (the “School”), unless Developer shall have first given SCA written notice of thereof (which shall notice, in Developer’s sole discretion, may be given to Purchaser by Seller promptly SCA at any time after Developer has elected to construct a building on the Land and before consummating a sale or lease of a School to a party other than SCA) containing the material economic and other terms upon its receiptwhich Developer is willing to sell or lease, as applicable, the School (the “ROFO Notice”), Purchaser may at its option, either . SCA shall notify Developer not later than thirty (i) terminate this Agreement by written notice to Seller given within twenty (2030) days after Purchaser is notified receipt of such actual the ROFO Notice (the “ROFO Period”), TIME BEING OF THE ESSENCE, that it elects to purchase or possible proceedings lease, as applicable, the School, upon the terms and conditions contained in the ROFO notice. If SCA shall timely elect to purchase or lease, as applicable, the School as aforesaid, then Developer shall prepare, and the parties shall execute and deliver a contract of sale or lease, as applicable, containing the terms set forth in the ROFO Notice and other provisions reasonably acceptable to the parties (but before the Closing)unless Developer’s ROFO Notice contained a contract of sale or lease document, as applicable, attached thereto, in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement hereto shall terminateexecute such contract of sale or lease form after completing any blanks therein in a manner consistent with the ROFO Notice and, except those expressly stated to survive terminationthe extent not addressed by the ROFO Notice, or otherwise reasonably acceptable to the parties), within sixty (ii60) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs days after the date hereofgiving of notice by SCA of its election to purchase or lease, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consentas applicable, not to be unreasonably withheld.
(b) the School in accordance with the provisions of this paragraph. In the event of loss SCA shall fail to elect to purchase or damage lease, as applicable, the School prior to the end of the ROFO Period, TIME BEING OF THE ESSENCE, or SCA otherwise waives such election in writing prior to the end of the ROFO Period, TIME BEING OF THE ESSENCE, Developer shall be free to sell or lease the Property to any other party or otherwise deal with the Property as Developer sees fit and without regard for any portion thereof which is not “major” (as hereinafter defined), rights of SCA by virtue of this Agreement or otherwise. This Section 10.09(b) shall remain in full force and effect, and neither Purchaser nor Seller shall have survive the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged PropertyAgreement.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: School Design, Construction, Funding and Purchase Agreement (Trinity Place Holdings Inc.)
Casualty; Condemnation. In the event that, between the Agreement Date and the Closing Date, (ai) If the Real Property, or any part thereof, is destroyed or damaged, and such is a Material Casualty (as defined below), or (ii) condemnation proceedings are commenced against the Real Property, or conveyance any part thereof, and such is a Material Condemnation, Buyer shall have the right, exercisable by giving notice of such decision to Seller within ten (10) Business Days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement in lieu thereof its entirety, in which case neither party shall have any further obligation under this Agreement, except that either party shall have the right to enforce the Surviving Obligations. In the event of all or such termination, the Deposit shall be returned to Buyer, as Buyer’s sole and exclusive remedy. A “Material Casualty” occurs if any portion of the Real Property occurs is damaged or destroyed and the cost to repair such damage exceeds $600,000.00. A “Material Condemnation” is threatened prior to Closing (written notice any condemnation proceeding that is commenced against any part of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either the Real Property that would or could (i) materially and adversely affect the use and operation of the Property, (ii) result in any portion of the Improvements being taken; (iii) materially affect access to the Improvements; or (iv) result in the Property failing to comply with applicable law or ordinance. In the event the casualty damage to the Real Property is not a Material Casualty, or the condemnation is not a Material Condemnation, as applicable, or if Buyer does not elect to terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual following a Material Casualty or possible proceedings (but before Material Condemnation as provided above, then Buyer shall accept the Closing)Real Property in its then condition and proceed with the Closing with no reduction, in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, offset or (ii) proceed to Closing without abatement of the Purchase Price, and accept, as its sole recourse against Seller payment or assignment of (i) all applicable proceeds of insurance, if any, from policies of insurance maintained and paid for by or on behalf of Seller (including its affiliates) covering the Real Property up to the amount paid by the insurer and necessary to make the repairs or restorations (or, if assignment of insurance proceeds is not available under the terms of Seller’s insurance or if the amount of the casualty loss cannot be determined prior to the Closing Date, Seller shall escrow with the Title Company from Seller’s proceeds at Closing an amount that the parties shall mutually agree is adequate to make the repairs or restorations, which escrowed funds shall be disbursed in which case accordance with a mutually acceptable escrow agreement executed at Closing by the parties and the Title Company), and, for avoidance of doubt, all business interruption and/or rent loss insurance proceeds or award (less any expenses incurred that would have been received by Seller) Seller had the Closing not occurred shall be assigned to PurchaserBuyer in connection therewith, or (ii) any applicable condemnation awards. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall credit the Purchase Price to the extent any deductible exists that is Seller’s responsibility under any policies of insurance or to the extent of any uninsured amounts, which credit shall not settle exceed the amount of such damages; provided, however, that in the event Seller would otherwise be required to credit Buyer for uninsured amounts in excess of $25,000 pursuant to this sentence, then Seller shall promptly after learning of such uninsured loss (and in any event on or agree before Closing), elect by written notice to accept any compensation for same without Purchaser’s prior written consentBuyer to provide Buyer with a credit at Closing equal to either (a) such entire uninsured amount, not to be unreasonably withheld.
as reasonably estimated the parties, or (b) In $25,000. Without limiting Buyer’s rights in this Section 12, upon receipt of Seller’s election as provided above, if Seller elects option (b) in the event of loss or damage immediately preceding sentence, then Buyer shall have the option to the Property or any portion thereof which is not “major” elect either to (as hereinafter defined), I) to terminate this Agreement in its entirety, in which case the Deposit shall remain in full force and effect, be returned to Buyer and neither Purchaser nor Seller party shall have any further obligation under this Agreement, except that either party shall have the right to terminate enforce the Surviving Obligations, or (II) accept the $25,000 uninsured loss credit and accept the Real Property in its then condition and proceed with the Closing pursuant to the terms of this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim Section 12 (including any deductibles paid) or assignment of insurance proceeds and other credits as herein provided). The Closing shall automatically be extended as may be necessary for the restoration or repair of timeframes set forth herein to run; provided however, the damaged Property.
(c) In Closing may occur prior to the final settlement with and payment by the insurer, in the event of a “major” loss casualty damage or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice final settlement and payment of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty andcondemnation proceeds, if then available, an estimate of the restoration costs and time for restorationapplicable.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Trilogy Multifamily Income & Growth Holdings I, LLC)
Casualty; Condemnation. (a) If Notwithstanding any condemnation other provision of this Fleet Mortgage, the Loan Agreement or conveyance in lieu thereof the other Loan Documents, the Mortgagee is authorized, at its option (for the benefit of the Secured Parties), to collect and receive, to the extent payable to the Mortgagor or any other Obligated Party, all insurance proceeds, damages, claims and rights of action under any insurance policies with respect to any casualty or other insured damage (“Casualty”) to any portion of the Real Property occurs or is threatened any Vessel (collectively, “Casualty Proceeds”) (irrespective of whether such proceeds are received prior to Closing (written or subsequent to rebuilding and/or replacement). The Mortgagor agrees to notify the Mortgagee, in writing, promptly after the Mortgagor obtains notice or knowledge of any Casualty to a Vessel, which notice shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified set forth a description of such actual or possible proceedings (but before Casualty and the Closing), in which case all Mortgagor’s good faith estimate of the Escrow Funds shall amount of related damages. The Mortgagor agrees to endorse and transfer or cause to be returned endorsed or transferred any Casualty Proceeds received, or receivable, by it or any other Obligated Party to Purchaser and all further rights and obligations the Mortgagee, to be administered, disbursed or applied to the Secured Obligations pursuant to Section 2.05(b) of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldLoan Agreement.
(b) In The Mortgagor will notify the event Mortgagee promptly upon obtaining knowledge that the title to or ownership of loss or damage to the Property Vessels, or any portion thereof which is not “major” of them, or the use of the Vessels, or any of them (as hereinafter definedwhether on a bareboat or time charter basis or any other basis), this Agreement shall remain in full force and effecthas been requisitioned, and neither Purchaser nor Seller shall have purchased, or taken by, or the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this AgreementVessels, without any abatement of the Purchase Price or any liability of them, shall be seized by or obligation on the part forfeited to any government of Seller by reason any country, or any department, agency or representative thereof pursuant to any present or future law, proclamation, decree, order or otherwise, or to any other person or persons, whether or not acting under color of said damage except as set forth in the next sentencegovernment authority (such events being deemed a “Condemnation”). In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all No settlement or compromise of Seller’s right, title and interest in the proceeds to be paid on the any claim of loss, less any sums expended by Seller prior to Closing in connection with any such action or proceeding shall be made without the consent of the Mortgagee, which consent shall not be unreasonably withheld. The Mortgagee is authorized, at its insurance claim option (including any deductibles paid) or for the restoration or repair benefit of the damaged PropertySecured Parties), to collect and receive Condemnation Proceeds. The Mortgagor agrees to execute or cause to be executed such further assignments, and to endorse and transfer or cause to be endorsed or transferred any Condemnation Proceeds received, or receivable, by it or any other Obligated Party to the Mortgagee, to be administered, disbursed or applied to the Secured Obligations pursuant to Section 2.05(b) of the Loan Agreement.
(c) In The foregoing provisions shall not apply to scrapping operations conducted by the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest Mortgagor in the proceeds to be paid on the claim ordinary course of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertybusiness.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Loan Agreement (Jeffboat LLC)
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all In the event that, prior to Closing, the Property, or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt)part thereof, Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of destroyed or materially damaged, and such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive terminationdamage exceeds $500,000, or (ii) proceed if condemnation proceedings are commenced against the Property, Buyer shall have the right, exercisable by giving notice of such decision to Closing without abatement Seller within ten (10) business days after receiving written notice of the Purchase Pricesuch damage, destruction or condemnation proceedings, to terminate this Agreement, in which case all proceeds neither party shall have any further rights or award (less any expenses incurred by obligations hereunder except for express indemnifications as provided hereunder of Buyer to Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss such termination, the Deposit shall be returned to Buyer, as Buyer’s sole and exclusive remedy. If (i) the casualty damage does not exceed $500,000, or damage (ii) Buyer elects as set forth in the preceding sentence to accept the Property, as applicable, Buyer shall accept the Property in its then condition and proceed with the Closing with no reduction, offset or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price and accept, as its sole recourse against Seller payment or any liability or obligation on the part assignment of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that applicable insurance proceeds, if any, from policies of insurance maintained and paid for by Seller covering the cost of repair or restoration of the damage to a condition substantially identical to that prior Property up to the event of damage would be, either be equal amount paid by the insurer and necessary to make the repairs or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Sellerrestorations, or (ii) having a material adverse impact upon any applicable condemnation award, if any, subject to the ability rights of tenants to such proceeds or feasibility awards under the Leases, if any. Seller shall credit the Purchase Price to the extent any deductible exists that is the Seller’s responsibility under any policies of operating a nursing home facility on insurance, which credit shall not exceed the Propertyamount of such damages. The Closing shall automatically be extended as may be necessary for the timeframes set forth herein to run; provided however, the Closing may occur prior to the final settlement with and payment by the insurer, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice event of any casualty anddamage or final settlement and payment of condemnation proceeds, if then available, an estimate of the restoration costs and time for restorationapplicable.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
Casualty; Condemnation. (a) If any condemnation A. A fire or conveyance other casualty which damages or destroys the Building or other Improvements or which otherwise damages or adversely affects the Real Estate shall not terminate this Contract unless Purchaser so elects as herein provided. Seller shall promptly notify Purchaser in lieu thereof of all or any portion writing of the Real Property occurs or is threatened prior to nature of the casualty, the amount of insurance coverage, and the anticipated loss adjustment. Seller shall further promptly notify Purchaser in writing of the amount of the award which the insurer will pay in respect of such loss. If Purchaser so elects, the Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), postponed pending Seller's receipt of such information so that Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified preserve the right of termination herein provided. In the event of such actual or possible proceedings (but before casualty, the Closing), insurance proceeds in which case all respect of the Escrow Funds such loss shall be returned to Purchaser and applied in payment of part or all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right may elect to terminate this Agreement Contract by giving written notice thereof to Seller at any time after such casualty and prior to 7 days after receipt of Seller's written notice stating the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement amount of the Purchase Price award which the insurer will pay in respect of such loss. Purchaser's failure to give such written notice within such time shall be deemed a waiver of Purchaser's election to terminate this Contract.
B. If Seller is notified by any governmental agency or authority that the Real Estate, or any liability part or obligation on the part parts thereof, will be condemned or otherwise taken under power of eminent domain, or if Seller learns that a condemnation or taking is contemplated by reason of said damage except as set forth in the next sentence. In such eventany governmental agency or authority, the transaction shall proceed as contemplated herein, then Seller shall provide promptly give Purchaser written notice thereof including, with or in such written notice, a credit against copy of the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected notice received by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair a description of the damaged Property.
(c) In the event of a “major” loss or damage information learned by Seller. Within 5 days after Seller gives such notice to the Property or any portion thereofPurchaser, Purchaser may terminate this Agreement shall, by written notice to Seller, in which event the Escrow Funds shall be returned elect either to Purchaserrescind this Contract or to perform notwithstanding such condemnation or taking. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss elects to perform notwithstanding such condemnation or damagetaking, then Purchaser shall be deemed entitled to have elected all proceeds paid by the applicable governmental agencies or authorities in respect thereof. Purchaser's failure to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) give such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate election within such time shall be deemed a waiver of the restoration costs and time for restorationPurchaser’s right to rescind this Contract.
Appears in 1 contract
Samples: Real Estate Sale Contract
Casualty; Condemnation. (a) If If, prior to the Closing, (i) any Property suffers a casualty or partial condemnation which would cause such Property to become a Defective Property and (ii) such Property is not, prior to the Closing, restored to a condition substantially the same as the condition thereof immediately prior to such casualty or conveyance condemnation, either Purchaser or Seller may, on notice to the other given prior to the Closing Date, terminate this Agreement with respect to such Defective Property, in lieu thereof of which event Purchaser shall acquire all or any portion of the Real Property occurs or is threatened prior Properties other than such Defective Property, and the Purchase Price shall be reduced by the Allocable Purchase Price of such Defective Property. Promptly upon learning of the same, Seller covenants and agrees to Closing (provide Purchaser with prompt written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual any casualty or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less condemnation affecting any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheldProperty.
(b) In the event of loss or damage If, prior to the Closing, any Property or any portion thereof which is not “major” (as hereinafter defined)shall be condemned in its entirety, this Agreement shall remain automatically terminate with respect to such Defective Property, in full force and effectwhich event Purchaser shall acquire all of the Properties other than such Defective Property, and the Purchase Price shall be reduced by the Allocable Purchase Price of such Defective Property.
(c) If neither Purchaser nor Seller shall have the right elect to terminate this Agreement and the parties shall nonetheless consummate with respect to a Defective Property pursuant to Paragraph (a) of this transaction in accordance with this AgreementSection 2.4, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth agrees (i) in the next sentence. In case of a casualty loss, to assign to Purchaser at Closing its rights to any insurance proceeds with respect to such eventloss, the transaction shall proceed as contemplated herein, Seller shall provide pay over to Purchaser any such proceeds already received and give Purchaser a credit against the Purchase Price equal in the amount of any deductible or uninsured loss, or (ii) in the case of a condemnation, to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds at Closing its rights to be paid on the claim of loss, less any sums expended by Seller prior to Closing compensation in connection with its insurance claim (including such condemnation and pay over to Purchaser any deductibles paid) or for the restoration or repair of the damaged Propertysuch compensation already received, and, in either such event, Purchaser shall acquire such Defective Property as provided herein.
(cd) In the event of If any Property shall suffer a “major” casualty loss or damage to which shall not render the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated hereina Defective Property, Seller shall provide assign to Purchaser at Closing its rights to any insurance proceeds with respect to such loss, pay over to Purchaser any such proceeds already received and give Purchaser a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim amount of any deductible or uninsured loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Propertyand Purchaser shall acquire such Property as provided herein.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Casualty; Condemnation. (a) If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days The Transferors, after Purchaser is notified learning of such actual any fire or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, other casualty on or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (Gilbert Property, shall promptly notify Seller thereof, xxx, xs soon as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such eventreasonably practicable thereafter, the transaction shall proceed as contemplated herein, Seller Transferors shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all with an estimate of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration repairs and the amount of the damage insurance proceeds available to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereofundertake such repairs. Within ten (10) days after its occurrencereceipt of such notices and estimates, Seller shall give Purchaser written notice in turn notify the Transferors whether Seller wants the Transferors to commence repair of the resultant damage of the Gilbert Property. If Seller wants the Transferors to so commence, or xx Transferors, in the exercise of prudent business judgment, decide to so commence, the Transferors shall proceed to repair the Gilbert Property but shall not be obligated to expend more xxxx xxy collected insurance proceeds and the amount of any insurance deductible. Should such fire or other casualty andcreate an emergency situation, the Transferors may elect to take such measures to protect, secure and repair the Gilbert Property as the Transferors in their own discretion xxxxxmine. At the Closing Date, the Transferors shall pay to Seller any proceeds they have received in respect of any such fire or other casualty; provided, however, that if then availablethe Transferors have undertaken any repairs in accordance with this Section 5(p)(i), an estimate the Transferors shall turn over to Seller the balance of any unused insurance proceeds in the Transferors' possession. At the Closing, the Transferors shall also assign (without warranty or recourse to the Transferors) to Seller all of the restoration costs Transferors' rights to any payments to be made after the Closing Date under any hazard insurance policy then in effect with respect to the Gilbert Property. If it is necessary to prosecute a claim to maximize the proceeds of insurance recovery, from and time after the Closing Date the Transferors shall diligently undertake such prosecution for restorationthe benefit of Seller. The Transferors shall not enter into any agreement to undertake repairs with a term that extends beyond the Closing Date without the prior written consent of Seller, which consent shall not be unreasonably withheld. Following the Closing Date, except as set forth above, the Transferors shall have no further liability or responsibility with respect to any such preceding fire or other casualty at the Gilbert Property. Following the Closing Date, Seller shaxx xxxxburse the Transferors for the cost of any repairs made by the Transferors prior to the Closing and not reimbursed by the Transferors' hazard insurance company, to the extent Seller receives any insurance proceeds from and after the Closing Date.
(ii) At the Closing Date, the Transferors shall pay to Seller any proceeds it has received in respect of any taking of any part of the Gilbert Property, and shall assign to Seller without xxxxxxxe or warranty its right to any future proceeds in respect thereof. Following the Closing Date, the Transferors shall have no further liability or responsibility with respect to any such preceding taking or proceeding regarding the Gilbert Property. If it is necessary to prosecute a claim tx xxxxxize the proceeds of taking recovery, from and after the Closing Date the Transferors shall diligently undertake such prosecution for the benefit of Seller.
Appears in 1 contract
Casualty; Condemnation. (a) If, prior to the Closing Date, all or part of the Property is damaged by fire or by any other cause whatsoever, Seller shall promptly give Buyer written notice of such damage. If the cost of repairing such damage is not in excess of One Million and xx/100 Dollars ($1,000,000.00), then Buyer shall have the right at Closing to receive, to the extent such sums have not been expended on repair work, (1) all insurance proceeds payable as a result of such loss plus payment by Seller of any and all deductibles other than claims and proceeds for rent loss insurance for periods prior to the Closing Date, or (2) an assignment of Seller's rights to such insurance proceeds without recourse plus payment by Seller of any and all deductibles, and this Agreement shall continue in full force and Seller shall have no obligation to repair such damage. If the cost of repairing damage from such casualty is greater than One Million Dollars ($1,000,000.00), then Buyer shall have the right, for a period of ten (10) days from the date of notice of the amount of damage caused by the casualty, to terminate this Agreement by giving written notice of termination to Seller within such period. Upon such termination, the parties hereto shall be released of any further liability hereunder except for provisions which survive a termination and except that (i) Buyer shall be entitled to a return of the Deposit and (ii) Buyer shall return any Confidential Information. If Buyer fails to notify Seller within such period of Buyer's intention not to terminate this Agreement, then Buyer shall be deemed to have terminated the Agreement. If such proceeds have not yet been received by Seller, then Seller's rights to such proceeds shall be assigned to Buyer at Closing without recourse and Seller shall have no obligation to repair such damage.
(b) If, prior to the Closing Date, any condemnation or conveyance in lieu thereof of all or eminent domain proceedings shall be commenced by any portion competent public authority against the Property, Seller shall promptly give Buyer written notice thereof. Upon notice of the Real commencement of any such proceedings (from Seller or otherwise) and in the event that the taking of such Property occurs or is threatened prior shall materially interfere with the operation of the Property, Buyer shall have the right to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) accept the Property subject to the proceedings, whereupon any award (less Seller's costs and expenses of pursuing and participating in such proceedings) (the "Costs") shall be paid to Buyer and Seller shall deliver to Buyer at Closing, without recourse, all assignments of such award to Buyer, or (ii) terminate this Agreement by giving written notice to Seller given to that effect within twenty ten (2010) days after Purchaser is notified of such actual or possible proceedings (but before from the Closing), in which case all date Buyer receives notice of the Escrow Funds proceedings. If this Agreement is terminated by Buyer as aforesaid, the parties hereto shall have no further liability hereunder except as otherwise expressly provided herein and except that (i) Buyer shall be returned entitled to Purchaser and all further rights and obligations a return of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or Deposit and (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less Buyer shall return any expenses incurred by Seller) shall be assigned to PurchaserConfidential Information. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event Buyer fails to notify Seller within such period of loss or damage Buyer's intention not to the Property or any portion thereof which is not “major” (as hereinafter defined)terminate this Agreement, then Buyer shall be deemed to have terminated this Agreement shall remain in full force and effect, and neither Purchaser nor Agreement. Seller shall have the right no obligation to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price repair or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to restore the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Columbia Equity Trust, Inc.)
Casualty; Condemnation. a. Seller shall, within three (a3) If business days thereafter, notify Purchaser of any condemnation casualty damage it becomes aware of or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given condemnation that Seller receives prior to Purchaser by Seller promptly upon its receiptthe Closing Date or earlier termination of this Agreement.
b. If, at the time of Closing, the estimated cost of repairing such damage is more than One Hundred Thousand Dollars ($100,000), as determined by an independent adjuster, Purchaser may may, at its sole option, either : (i) terminate this Agreement by written notice to Seller given within twenty fifteen (2015) days after Purchaser is notified receipt of notice from Seller of such actual or possible proceedings casualty (but before the Closing), in which case all of the Escrow Funds shall be returned deemed a termination pursuant to Purchaser and all further rights and obligations Section 19(a)(ii) of the parties under this Agreement shall terminate, except those expressly stated to survive termination, Agreement); or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without Section 18(c).
c. If: (A) any abatement portion of the Purchase Price Property is damaged by fire or any liability or obligation on casualty after the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal Effective Date and is not repaired and restored substantially to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller its original condition prior to Closing, and HNZW/502436_2.docx/3583-1 19 (B) at the time of Closing in connection with its insurance claim the estimated cost of repairs is One Hundred Thousand Dollars (including any deductibles paid$100,000) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restoreless, as determined by an independent appraiser chosen adjuster, or otherwise should Purchaser opt pursuant to Section 18(b)(ii) to proceed to Closing, Purchaser shall be required to purchase the Property in accordance with the terms of this Agreement, and at Seller’s option, Purchaser shall either: (x) receive a credit at Closing for the estimated cost of repairs as determined by Purchaser the aforesaid independent adjuster; or (y) at Closing Seller shall: (1) assign to Purchaser, without recourse, the right to all insurance claims and reasonably acceptable to proceeds with respect thereto (less sums theretofore expended in connection with such fire or casualty, if any, by Seller, including for temporary repairs or barricades) (ii) having a material adverse impact upon in which event Purchaser shall have the ability or feasibility of operating a nursing home facility on right to participate in the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice adjustment and settlement of any casualty insurance claim relating to said damage), and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Asset Purchase Agreement (Adcare Health Systems, Inc)
Casualty; Condemnation. If, prior to Closing, any Partnership Property or any part thereof shall be condemned, or destroyed or damaged by fire or other casualty, or if any proceeding shall be instituted for the taking in condemnation or by eminent domain of all or a portion of any Partnership Property, the Seller Parties shall promptly so notify Buyer. Upon Closing Buyer shall be entitled (a) If any in the event of a condemnation, to receive the condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing proceeds (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days as and when paid if after Purchaser is notified of such actual or possible proceedings (but before the Closing), and (b) in which case all the event of a casualty, to receive the Escrow Funds proceeds of insurance applicable thereto (including, if applicable, any rent loss proceeds for the post-Closing restoration period) and the Seller Parties shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or give Buyer a credit (ii) proceed to Closing without abatement of as a dollar for dollar reduction in the Purchase Price) in the amount of any deductible or coinsurance amount under the applicable Insurance Policies (but not for any uninsured loss, in which case all unless the failure to maintain such insurance constitutes a breach of the Seller Parties’ obligations under Section 2.17. Any proceeds or award (less awards paid to the Partnership or any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs Partnership Subsidiary after the date hereof, Seller hereof in connection with a casualty or condemnation shall not be distributed to the Seller Parties, but the Partnership or applicable Partnership Subsidiary shall be entitled to use any such proceeds or awards to repair any damage done by such casualty or condemnation to the Partnership Property. Buyer may participate in the negotiations regarding the settlement of any claim for proceeds resulting from a casualty or condemnation and Seller Parties will neither cause nor permit the Partnership or applicable Partnership Subsidiary to settle or agree to accept any compensation for same such claim without Purchaserobtaining Buyer’s prior written consent, which consent will not to be unreasonably withheld.
(b) , conditioned or delayed. In addition, the event Seller Parties agree that, without obtaining Buyer’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed, neither the Partnership nor any Partnership Subsidiary will make any repairs to, or otherwise restore, the Partnership Property, other than repairs required to protect the health or safety of loss any person or damage property at such Partnership Property and except as required by the terms of any Ground Lease, Partnership Space Lease or other agreement to which the Partnership or the applicable Partnership Subsidiary is a party or which is otherwise applicable to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement Partnership Property. Buyer shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide receive a credit against the Purchase Price equal for the amount of any proceeds or awards payable to Seller’s interest in insurance proceeds that have been collected Buyer as set forth above but which are instead retained by Seller and assign to Purchaser all of Seller’s rightany lender (other than sums, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair case of the damaged Property.
(c) In Mortgage Debt, which the event of a “major” loss or damage lender is obligated, under the applicable loan documents, to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage apply to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restorationfollowing Closing).
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Liberty Property Limited Partnership)
Casualty; Condemnation. In the event the Improvements are materially destroyed or damaged in an amount exceeding three hundred thousand dollars (a) If any $300,000), or if condemnation proceedings are threatened or conveyance in lieu thereof of commenced against all or any material portion of the Real Property occurs or Property, in each case between the date hereof and the date the same is threatened prior scheduled to Closing (written be acquired by Buyer pursuant to this Agreement, Buyer shall have the option, exercisable in its sole discretion and by giving notice of which shall be given such decision to Purchaser by Seller promptly upon its receipt)within ten (10) business days after Buyer’s receipt of notice of such damage, Purchaser may at its optiondestruction or condemnation proceedings, either to terminate this Agreement. In the event Buyer does not elect to so terminate, (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified in the case of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereofcondemnation, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser Buyer at the Closing all of Seller’s its right, title and interest in and to all proceeds resulting from such condemnation of the proceeds to be paid on the claim of lossProperty, less after deducting therefrom any sums expended third party costs or expenses incurred by Seller prior in settling, adjusting or compromising such condemnation award, including the right to Closing apply for and prosecute the same, which proceeds shall be held by Seller until disbursed in connection accordance with its insurance claim (including any deductibles paid) or for the restoration or repair provisions of Section 6.5 of the damaged Net Lease; provided however, that this assignment shall not preclude Seller from filing a separate claim for non-real property related condemnation proceeds (other than the Personal Property.
(c) In ), including but not limited to, loss of business, future profits, and good will; damages related to stock and/or trade fixtures, furniture and other personal property belonging to Seller; the event cost of removing fixtures, equipment and inventory; moving expenses related to the relocation of the business, and any and all other related damages or expenses incurred as a “major” result thereof and for loss of or damage to its leasehold interest in the Property Property, provided that such claim shall not diminish any condemnation award otherwise due to Buyer; and (ii) in the case of casualty, Seller shall repair such damage at its expense prior to the Closing, or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damageif that is impossible, then Purchaser shall be deemed to have elected to proceed with promptly following such Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against manner and subject to the Purchase Price equal to Seller’s interest standards in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair Section 5.5 of the damaged PropertyNet Lease.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
Appears in 1 contract
Samples: Sale and Leaseback Agreement (Specialty Laboratories Inc)
