Common use of CASUALTY LOSS AND CONDEMNATION Clause in Contracts

CASUALTY LOSS AND CONDEMNATION. Until Closing, Seller has the risk of loss or damage to the Property. If any loss or damage occurs prior to Closing, Buyer may, at its option, elect to either (i) terminate this Agreement pursuant to Section 4.2 hereof, or (ii) accept the Property with the Purchase Price reduced by the cost of replacement or repair, which costs shall be determined by an independent third party and reasonably acceptable to Buyer. If, prior to the Closing, all or any portion of the Property is taken by condemnation or eminent domain (or is the subject of a pending or contemplated taking which has not been consummated), Seller shall notify Buyer promptly upon Seller becoming aware of such fact. In the event of a Material Taking (as hereinafter defined), Buyer shall have the option to terminate this Agreement upon written notice to Seller given not later than the earlier of (a) five (5) days after receipt of such notice from Seller, or (b) the Closing. If Buyer does not timely elect, or has no right, to terminate this Agreement, Seller shall assign and turn over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation, and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. As used herein, the term “Material Taking” shall mean a taking or condemnation, or a pending taking or condemnation of which the parties have received notice, of a portion of the Property that would, in Buyer’s commercially reasonable business judgment, materially and adversely affect Buyer’s intended use of the Property in any material respect or would adversely affect access to the Property in any material respect.

CASUALTY LOSS AND CONDEMNATION. Until Closing, Seller has the risk of loss or damage to the Property. If any loss or damage occurs prior to Closing, Buyer may, at its option, elect to either (i) terminate this Agreement pursuant to Section 4.2 hereof, or (ii) accept the Property with the Purchase Price reduced by the cost of replacement or repair, which costs shall be determined by an independent third party and reasonably acceptable to Buyer. If, prior to the Closing, all or any portion of the Property Properties is destroyed by fire or other casualty or if any portion of the Properties shall be taken by condemnation or under the right of eminent domain (all of which are herein called "Casualty Loss" and limited to property damage or is the subject of a pending or contemplated taking which has not been consummated), Seller shall notify Buyer promptly upon Seller becoming aware of such fact. In the event of a Material Taking (as hereinafter definedonly), Buyer and Seller must agree prior to Closing either (i) to delete that portion of the Properties which is subject to the Casualty Loss from the Properties, and the Purchase Price shall be reduced by the Allocated Value as set out in Schedule 3.1, or (ii) for Buyer to proceed with the purchase of such Properties, notwithstanding any such destruction or taking (without reduction of the Purchase Price) in which case Seller shall pay, at the Closing, to Buyer all sums paid to Seller by third parties by reason of the destruction or taking of such Properties and shall assign, transfer and set over unto Buyer all insurance proceeds received by Seller as well as all of the right, title and interest of Seller in and to any claims, causes of action, unpaid proceeds or other payments from third parties arising out of such destruction or taking; provided, however, if the value of that portion of the Properties affected by the Casualty Loss, not to exceed that Allocated Value in Schedule 3.1, exceeds five percent (5%) of the Purchase Price, Buyer and Seller shall each have the option right to terminate this Agreement upon written notice notification to the other, the transaction shall not close, the Buyer’s Performance Deposit shall be refunded, and thereafter neither Buyer nor Seller given not later than shall have any liability or further obligations to the earlier of (a) five (5) days after receipt of such notice from Seller, or (b) the other hereunder. Prior to Closing. If Buyer does not timely elect, or has no right, to terminate this Agreement, Seller shall assign and turn over to not voluntarily compromise, settle or adjust any amounts payable by reason of any Casualty Loss without first obtaining the written consent of Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation, and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. As used herein, the term “Material Taking” shall mean a taking or condemnation, or a pending taking or condemnation of which the parties have received notice, of a portion of the Property that would, in Buyer’s commercially reasonable business judgment, materially and adversely affect Buyer’s intended use of the Property in any material respect or would adversely affect access to the Property in any material respect.