Common use of Casualty Loss; Condemnation Clause in Contracts

Casualty Loss; Condemnation. This Sublease and Sublessee’s rights hereunder shall be subject to the exercise by Landlord or any third party entitled thereto of any rights granted pursuant to the Prime Lease or by law, including the right to terminate the Prime Lease or this Sublease in the event of any taking by eminent domain or condemnation or any casualty loss or damage. In the event of any taking by eminent domain or condemnation or any casualty loss or damage to the Sublet Premises, Sublessee agrees to be subject to any action taken to terminate the Prime Lease by Sublessor pursuant to the terms of the Prime Lease or by agreement between Sublessor and Landlord, provided however that Sublessor shall not (a) enter into any agreement or take any action that would result in the termination of this Sublease as a result of any taking by eminent domain or condemnation or any casualty loss or damage to the Sublet Premises without Sublessee’s written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Except for action taken pursuant to Section 11 of this Sublease, nothing in this Sublease shall require Sublessor to take any action to oppose any exercise by Prime Landlord of its rights under the Prime Lease in connection with any taking by eminent domain or condemnation or any casualty loss or damage. In the event the Building or Sublet Premises is damaged, destroyed or taken pursuant to the exercise of eminent domain or condemnation to a degree that substantially impairs Sublessee’s use or enjoyment of the Sublet Premises, then Sublessee may terminate this Sublease upon thirty (30) days notice if the Sublet Premises are not restored within (i) (90) days of Sublessor’s written notice to the effect that Sublessor has elected to restore the Sublet Premises, or (ii) within one hundred twenty (120) days of the date of casualty, whichever is later, provided however that such right to terminate shall not be available to Sublessee if Sublessor is unable to meet such dates as a result of Sublessee having unreasonably withheld, delayed or conditioned it’s consent to Sublessor’s request for consent to terminate the Prime Lease or this Sublease. In addition, notwithstanding any term, condition or covenant to the contrary, if all or any part of the Sublet Premises becomes unusable for occupancy by Sublessee as a result of casualty or damage or destruction or pursuant to the exercise of eminent domain or condemnation, Rent will xxxxx in the same proportion that the square foot area of the part of the Sublet Premises not usable by Sublessee bears to the total square foot area of the Sublet Premises from the date of casualty, damage, destruction, condemnation or the date taken by eminent domain, to the date the Sublet Premises are restored.

Casualty Loss; Condemnation. This Sublease and Sublessee’s rights hereunder shall be subject (a) If, after the Execution Date but prior to the exercise by Landlord Closing, all or any third party entitled thereto portion of any rights granted pursuant the Company Assets are destroyed or damaged by fire, flood, earthquake, storm, theft, vandalism, explosion, blowout, riot, sabotage, accident or other casualty of a similar nature or are taken in condemnation or under the right of eminent domain or have become the subject of pending condemnation or eminent domain proceedings, and the aggregate amount of the reasonably estimated Repair / Replacement Costs exceeds $200,000 (such damage in excess of such amount, a “Casualty Loss”), Seller will promptly send written notice to Buyer of the Prime Lease or by lawoccurrence of such event (a “Casualty Notice”) and provide Buyer with all reasonably requested information with respect thereto, including allowing Buyer and its representatives to visit and survey the right damage resulting therefrom (as applicable). If any Party believes in good faith that the amount of the aggregate Repair / Replacement Cost for such Casualty Loss is equal to terminate or exceeds $1,000,000, the Prime Lease Parties will together promptly select an independent third-party construction and engineering or consulting firm (as applicable depending on whether such Casualty Loss is caused by casualty or a condemnation or eminent domain taking) skilled in designing and/or constructing assets of the type that suffered the Casualty Loss (an “Engineering Firm”) who will be engaged to determine the amount of Repair / Replacement Cost for such Casualty Loss. If the Parties are unable to agree upon an Engineering Firm by the expiration of fifteen (15) days following the delivery of the Casualty Notice, each of Seller, on the one hand, and Buyer, on the other hand, will select a separate Engineering Firm to determine the Repair / Replacement Cost. If the two Engineering Firms so selected do not agree on the Repair / Replacement Cost, then the two Engineering Firms will select a third Engineering Firm to determine the Repair / Replacement Cost. The final Repair / Replacement Cost will be the average of the two Repair / Replacement Cost estimates that are the closest in amount relative to each other. Each Party will use its commercially reasonable efforts to cause any Engineering Firm engaged by such party in accordance with this Sublease Section 6.10(a) to return its determination of the Repair / Replacement Cost within thirty (30) days after the date of such appraiser’s engagement by such Party; provided that no Party may delay the Closing for the time periods set forth in this Section 6.10(a) for the determination of the Repair / Replacement Cost unless such Party, upon delivery of a Casualty Notice, believes in good faith that the amount of the aggregate Repair / Replacement Cost for such Casualty Loss is equal to or exceeds $1,000,000. (b) Subject to Section 6.10(c) and Section 6.10(d), in the event of any taking such Casualty Loss, at the Closing, the applicable Company Group Members and Seller will enter into customary agreements pursuant to which Seller will deliver to Buyer all sums paid to Seller or its Affiliates by eminent domain any insurance company for the Repair of the applicable Company Assets or condemnation in respect of such Casualty Loss. (c) In the event of a Casualty Loss after the Execution Date but prior to the Closing involving an aggregate Repair / Replacement Cost that is greater than $1,000,000 but less than $20,000,000 as established in accordance with Section 6.10(a), Seller and Buyer will proceed with the Closing but the Base Consideration will be adjusted downward by the estimated Repair / Replacement Cost for such Casualty Loss; provided that, in such case, to the extent that the Base Consideration is so reduced, all insurance proceeds received by Seller, any Company Group Member or their respective Affiliates for the (d) In the event of (i) a Casualty Loss after the Execution Date but prior to the Closing involving an aggregate Repair / Replacement Cost that is greater than $20,000,000 as established in accordance with Section 6.10(a), either Seller or Buyer may elect to terminate this Agreement or (ii) a Koki Casualty Event, Buyer may elect to terminate this Agreement, in either case, by giving five (5) days prior written notice to the other Party. If no Party exercises such right to terminate, then Buyer and Seller will proceed with the Closing notwithstanding any casualty loss such Casualty Loss (without reduction of the Base Consideration), and the applicable Company Group Members and Seller will enter into customary agreements pursuant to which Seller will deliver to Buyer all sums paid to Seller or damageits Affiliates by any insurance company for the Repair of the applicable Company Assets or in respect of such Casualty Loss. (e) The occurrence of a Casualty Loss after the Execution Date but prior to the Closing will not, in and of itself, be deemed a breach of Seller’s representations and warranties, covenants or other obligations under this Agreement absent some other breach of Seller’s representations and warranties, covenants or other obligations under this Agreement. An election by any Party to exercise its right pursuant to Section 6.10(d) to terminate this Agreement will not, in and of itself, result in any breach of any representation, warranty or covenant of such Party under this Agreement. (f) In the event of any taking by eminent domain Casualty Loss, Seller and Buyer agree, as applicable, to use commercially reasonable efforts and, if applicable, to cause the applicable Company Group Members to use commercially reasonable efforts, to pursue claims and collect any amounts to which Seller, Buyer or condemnation or any casualty loss or damage to the Sublet Premisessuch Company Group Member, Sublessee agrees to as applicable, may be subject to any action taken to terminate the Prime Lease by Sublessor pursuant to the terms of the Prime Lease or by agreement between Sublessor and Landlord, provided however that Sublessor shall not (a) enter into any agreement or take any action that would result in the termination of this Sublease as a result of any taking by eminent domain or condemnation or any casualty loss or damage to the Sublet Premises without Sublessee’s written consent, which consent shall not be unreasonably withheld, delayed or conditioned. Except for action taken pursuant to Section 11 of this Sublease, nothing in this Sublease shall require Sublessor to take any action to oppose any exercise by Prime Landlord of its rights entitled under the Prime Lease applicable insurance policies in connection with any taking by eminent domain or condemnation or any casualty loss or damage. In the event the Building or Sublet Premises is damaged, destroyed or taken pursuant to the exercise respect of eminent domain or condemnation to a degree that substantially impairs Sublessee’s use or enjoyment of the Sublet Premises, then Sublessee may terminate this Sublease upon thirty (30) days notice if the Sublet Premises are not restored within (i) (90) days of Sublessor’s written notice to the effect that Sublessor has elected to restore the Sublet Premises, or (ii) within one hundred twenty (120) days of the date of casualty, whichever is later, provided however that such right to terminate shall not be available to Sublessee if Sublessor is unable to meet such dates as a result of Sublessee having unreasonably withheld, delayed or conditioned it’s consent to Sublessor’s request for consent to terminate the Prime Lease or this Sublease. In addition, notwithstanding any term, condition or covenant to the contrary, if all or any part of the Sublet Premises becomes unusable for occupancy by Sublessee as a result of casualty or damage or destruction or pursuant to the exercise of eminent domain or condemnation, Rent will xxxxx in the same proportion that the square foot area of the part of the Sublet Premises not usable by Sublessee bears to the total square foot area of the Sublet Premises from the date of casualty, damage, destruction, condemnation or the date taken by eminent domain, to the date the Sublet Premises are restoredCasualty Loss.

Casualty Loss; Condemnation. This Sublease and Sublessee’s rights hereunder shall be subject to the exercise by Landlord or any third party entitled thereto of any rights granted pursuant to the Prime Lease or by law, including the right to terminate the Prime Lease or this Sublease in the event of any taking by eminent domain or condemnation or any casualty loss or damage. In the event of any taking by eminent domain or condemnation or any casualty loss or damage to the Sublet Premises, Sublessee agrees to be subject to any action taken to terminate the Prime Lease by Sublessor pursuant to the terms of the Prime Lease or by agreement between Sublessor and Landlord, provided however that Sublessor shall not (a) enter If, during the Interim Period, the Facility, or any portion thereof, is damaged or destroyed by casualty loss (a “Casualty Loss”), Seller shall promptly, but in no more than five (5) Business Days, provide written notice of the Casualty Loss to Purchaser. If the cost of restoring such damaged or destroyed Facility or Real Property to a condition reasonably comparable to its condition immediately prior to such Casualty Loss (net of and after giving effect to any insurance proceeds available to Seller for such restoration) (such cost as estimated by a qualified firm reasonably acceptable to Seller and selected by Purchaser in good faith and promptly after the date of the event giving rise to the Casualty Loss, the “Restoration Cost”) is greater than [ ] U.S. dollars ($[ ]) after taking into any agreement or take any action that would result in account the termination of this Sublease as a result amount of any taking by eminent domain or condemnation or any casualty loss or damage to the Sublet Premises without Sublessee’s written consentCondemnation Loss, which consent shall if any, but does not be unreasonably withheld, delayed or conditioned. Except for action taken pursuant to Section 11 of this Sublease, nothing in this Sublease shall require Sublessor to take any action to oppose any exercise by Prime Landlord of its rights under the Prime Lease in connection with any taking by eminent domain or condemnation or any casualty loss or damage. In the event the Building or Sublet Premises is damaged, destroyed or taken pursuant to the exercise of eminent domain or condemnation to a degree that substantially impairs Sublessee’s use or enjoyment exceed five percent (10%) of the Sublet PremisesPurchase Price, then Sublessee may terminate this Sublease upon Seller shall, within thirty (30) days following the date the Restoration Cost is known, elect to either (y) repair such Casualty Loss to a condition reasonably comparable to its condition immediately prior to such Casualty Loss or (z) reduce the amount of the Purchase Price by the amount of the Restoration Cost, and in either case such Casualty Loss shall not affect the Closing. If the Restoration Cost, including the amount of any Condemnation Value, if any, is in excess of five percent (5%) of the Purchase Price, Purchaser may, by notice to Seller no more than thirty (30) days after the date such Restoration Cost is known, terminate this Agreement. If Purchaser does not elect to terminate this Agreement pursuant to the immediately preceding sentence, the Purchase Price shall be reduced by the amount of the Restoration Cost and the Casualty Loss shall not otherwise affect the Closing. To the extent the Purchase Price is reduced by the amount of the Restoration Cost pursuant to this Section 5.04, Purchaser will, at Seller’s election: (a) assign to Seller any rights to any contribution or other rights available under insurance claims or recoveries available under insurance policies covering such Facility or Real Property; and (b) at Seller’s sole cost and expense, use commercially reasonable efforts to pursue any available contribution, claims or recoveries on Seller’s behalf for the benefit of Seller. Subject to this Section 5.04, during the period following the Casualty Loss and prior to the Closing, Seller shall consult with Purchaser in respect of remediating the Casualty Loss, including promptly commencing the restoration work with respect to such Casualty Loss and promptly filing claims with insurance companies under applicable insurance policies in respect of such Casualty Loss. To the extent Seller has made any repairs in respect of the Restoration Cost, the amounts paid for and the value of the parts used in such repairs, up to the amount equal to the Restoration Cost by which the Purchase Price (as adjusted pursuant to Section 2.06) was reduced in accordance with this Section 5.04, shall be added to the Purchase Price (as adjusted pursuant to Section 2.06. If the Restoration Cost, including the amount of any Condemnation Value, if any, is [ ] U.S. dollars ($[ ]) or less (x) Purchaser shall not have the Sublet Premises are not restored within right to terminate this Agreement and (iy) there shall be no reduction in the amount of the Purchase Price. In no event shall a Casualty Loss cause any of the closing conditions in Article IX (other than Section 9.03) to be unsatisfied or give rise to an indemnity claim by Purchaser, and this Section 5.04 shall govern all matters with respect to a Casualty Loss. (b) If, during the Interim Period, the Real Property or any portion thereof, is condemned (a “Condemnation”), Seller shall promptly, but in no more than five (5) Business Days, provide written notice of the Condemnation to Purchaser. If the value of such Condemnation (net of and after giving effect to any condemnation award available to Seller for such Condemnation) (90) days of Sublessor’s written notice such value as estimated by a qualified firm reasonably acceptable to the effect that Sublessor has elected to restore the Sublet Premises, or (ii) within one hundred twenty (120) days of Seller and selected by Purchaser in good faith and promptly after the date of casualtythe event giving rise to the Condemnation, whichever the “Condemnation Value”) is latergreater than [ ] U.S. dollars ($[ ]), provided however that after taking into account the amount of any Casualty Loss, if any, but does not exceed five percent (5%) of the Purchase Price, then within thirty (30) days following the date the Condemnation Value is known, Seller shall reduce the amount of the Purchase Price by the amount of the Condemnation Value, and the Condemnation shall not affect the Closing. If the Condemnation Value, including the amount of any Restoration Cost, if any, is in excess of five percent (5%) of the Purchase Price, Purchaser may, by notice to Seller no more than thirty (30) days after the date such Condemnation Value is known, terminate this Agreement. If Purchaser does not elect to terminate this Agreement pursuant to the immediately preceding sentence, the Purchase Price shall be reduced by the amount of the Condemnation Value and the Condemnation shall not otherwise affect the Closing. To the extent the Purchase Price is reduced by the amount of the Condemnation Value pursuant to this Section 5.04, Purchaser will, at Seller’s election: (a) assign to Seller any rights to (A) any condemnation award and (B) any contribution or other rights available under insurance claims or recoveries available under insurance policies covering such Real Property; and (b) at Seller’s sole cost and expense, use commercially reasonable efforts to pursue (A) any condemnation award and (B) any available contribution, claims or recoveries on Seller’s behalf for the benefit of Seller. If the Condemnation Value, including the amount of any Restoration Cost, if any, is [ ] U.S. dollars ($[ ]) or less (x) Purchaser shall not have the right to terminate this Agreement and (y) there shall not be available to Sublessee if Sublessor is unable to meet such dates as a result no reduction in the amount of Sublessee having unreasonably withheld, delayed or conditioned it’s consent to Sublessor’s request for consent to terminate the Prime Lease or this SubleasePurchase Price. In addition, notwithstanding no event shall a Condemnation cause any term, condition or covenant to the contrary, if all or any part of the Sublet Premises becomes unusable for occupancy closing conditions in Article IX (other than Section 9.03) to be unsatisfied or give rise to an indemnity claim by Sublessee as Purchaser, and this Section 5.04 shall govern all matters with respect to a result of casualty or damage or destruction or pursuant to the exercise of eminent domain or condemnation, Rent will xxxxx in the same proportion that the square foot area of the part of the Sublet Premises not usable by Sublessee bears to the total square foot area of the Sublet Premises from the date of casualty, damage, destruction, condemnation or the date taken by eminent domain, to the date the Sublet Premises are restoredCondemnation.