Common use of Casualty or Condemnation Clause in Contracts

Casualty or Condemnation. During the period from the Opening of Escrow through Closing, all risk of loss from fire or other casualty or condemnation shall be borne by Seller. If, prior to Closing, all or any portion of the Property is damaged by fire or other natural casualty (collectively “Damage”) or is taken or made subject to condemnation, eminent domain, or other governmental acquisition proceedings (collectively “Eminent Domain”), then Seller shall promptly notify Buyer and the following procedures shall apply: 12.1 If the aggregate cost of repair and/or replacement of the Damage (collectively, “repair and/or replacement”) is $50,000 or less, in the opinion of Buyer’s and Seller’s respective engineering consultants, Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement. Any casualty insurance shall be the sole property of Seller. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 In the event of a dispute between Seller and Buyer with respect to the cost of repair and/or replacement with respect to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costs, and expenses of this third engineer so selected shall be shared equally by Buyer and Seller.

Casualty or Condemnation. During the period from the Opening 11.3.1 Seller shall give Purchaser prompt notice of Escrow through Closing, all risk of loss from (i) any fire or other casualty substantially affecting a material portion of the Assets (a "CASUALTY") between the date of this Agreement and the Closing Date and (ii) any actual, pending or proposed condemnation of any portion of the Assets, as to which Seller have received written notice from the condemning authority ("TAKING"). 11.3.2 In the event the Assets suffer a Casualty subsequent to the date of this Agreement, but prior to the Closing Date, Purchaser's obligation to close hereunder shall not be borne by Seller. Ifaffected except as provided below in this Section 11.3.2, and Seller shall elect to either (i) prior to Closing, all repair fully or any portion make adequate provision for the full repair of such Assets to at least their prior condition, (ii) terminate this Agreement in accordance with Article XVI below without further Liability between the parties, or (iii) to provide Purchaser with a credit against the Purchase Price in an amount agreed upon by Seller and Purchaser to represent the reduction in the value of the Property is damaged Assets by fire or other natural casualty (collectively “Damage”) or is taken or reason of the Casualty, taking into account any repairs actually made subject by Seller to condemnationsuch Assets prior to the Closing Date. However, eminent domain, or other governmental acquisition proceedings (collectively “Eminent Domain”), then if Seller shall promptly notify Buyer and have elected to provide Purchaser with a credit against the following procedures shall apply: 12.1 If Purchase Price as provided in clause (iii) above, Purchaser may terminate this Agreement prior to the aggregate cost of repair and/or replacement Closing by notice to Seller if the amount of the Damage (collectively, “repair and/or replacement”) is $50,000 or less, in the opinion of Buyer’s and Seller’s respective engineering consultants, Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against caused by the cash otherwise due Casualty exceeds $250,000. In the event Seller exercises its option under clause (i) above, Closing may be delayed until November 28, 2008 to allow for the necessary repairs, at which point, if said repairs have not been completed, Seller shall be deemed to have exercised its option under (iii) above, and the Closing in the full amount of the repair and/or replacement. Any casualty insurance shall be the sole property of Selleroccur on such date. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 11.3.3 In the event of a dispute between Seller and Buyer with respect Taking, Purchaser's obligation to close hereunder shall not be affected unless the amount of the reduction in the value of the Assets by reason of the Taking exceeds $150,000. In the event of any Taking that does not result in a termination of this Agreement, all sums of money (or other consideration) awarded as damages or otherwise received on account of such Taking shall be applied as a credit to Purchaser to the cost of repair and/or replacement with respect to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costsPurchase Price, and expenses of this third engineer so selected all claims for any such award shall be shared equally by Buyer and Sellerassigned to Purchaser.

Casualty or Condemnation. During If any material part of the period from Premises is taken by condemnation or the Opening power of Escrow through Closingeminent domain (including voluntary sale or conveyance in lieu or under threat thereof), all risk either Landlord or Tenant may terminate this Lease by written notice to the other. If portions of loss from fire the Shopping Center other than the Premises are materially damaged, destroyed or other casualty taken, rendering the continued operation of the Shopping Center uneconomical in Landlord's reasonable business judgment, or condemnation shall be borne if the Shopping Center no longer complies with the requirements of governmental. authority, Landlord may terminate this Lease by Sellerwritten notice to Tenant. IfTenant must provide notice of termination, if at all, prior to Closingreceiving notice from Landlord that Landlord intends to restore the Premises. Landlord's notice of intent to restore extinguishes Tenant's termination right. Termination of this Lease under this paragraph 7 is effective thirty (30) days after the giving of notice of termination. In the absence of termination of this Lease under this paragraph 7, Landlord will diligently restore the Premises to as near as possible their condition existing at the date of this Lease (with such additional improvements, if any, as Landlord agreed to make prior to Tenant's occupancy), after which Tenant will diligently further restore the Premises to as near as possible their condition existing prior to the damage, destruction or taking. However, Landlord's restoration obligations are conditioned upon Landlord's full recovery of insurance proceeds (less deductible) from its insurers, or the condemnation award from the condemning authority, as applicable, and upon Landlord's obtaining all necessary permits and regulatory approvals. Tenant waives any compensation or damages from Landlord, any portion of insurance proceeds from policies maintained by Landlord, and any award in condemnation or settlement in lieu thereof, arising from the Property is damaged by fire Premises being damaged, destroyed or taken. Tenant waives any statutory or other natural casualty (collectively “Damage”) or is taken or made subject to condemnation, eminent domain, or other governmental acquisition proceedings (collectively “Eminent Domain”), then Seller shall promptly notify Buyer and the following procedures shall apply: 12.1 If the aggregate cost right of repair and/or replacement of the Damage (collectively, “repair and/or replacement”) is $50,000 or less, in the opinion of Buyer’s and Seller’s respective engineering consultants, Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement. Any casualty insurance shall be the sole property of Seller. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect Tenant to terminate this AgreementLease if the Premises are damaged, then Buyer shall close and take the Property as diminished by such eventsdestroyed, subject to a reduction in the Purchase Price applied against the cash taken, or otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Sellerrendered untenantable. 12.3 In the event of a dispute between Seller and Buyer with respect to the cost of repair and/or replacement with respect to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costs, and expenses of this third engineer so selected shall be shared equally by Buyer and Seller.

Casualty or Condemnation. During 12.1.1 In the period from the Opening of Escrow through Closing, all risk of loss from fire or other casualty or condemnation shall be borne by Seller. Ifevent that, prior to Closingthe Closing Date, all or any portion of the Property Refinery or any Marketing Site is damaged or destroyed by fire or other natural casualty (collectively “Damage”a "CASUALTY") or is taken by condemnation or made subject eminent domain or by agreement in lieu thereof with any person or entity authorized to condemnation, eminent domain, or other governmental acquisition proceedings exercise such rights (collectively “Eminent Domain”a "TAKING"), then Seller shall promptly notify Buyer Purchaser thereof. 12.1.2 In the event of a Casualty or Taking between the Effective Date and the following procedures Closing Date affecting the Refinery, Seller shall apply: 12.1 If elect (a) to repair or replace or make adequate provision for the aggregate cost of repair and/or or replacement of the Damage affected Asset at Seller's cost prior to the Closing, in which case Purchaser's obligation to effect the Closing shall not be affected, but the Closing Date and the Outside Closing Date shall be deferred until three business days after repairs are completed and/or (collectivelyb) to negotiate with Purchaser to reduce the Purchase Price by an amount agreed to by Seller and Purchaser to reflect the cost to repair or replace the affected Assets (the "REPAIR COSTS"), “repair and/or replacement”) is $50,000 or lessin which case, in the opinion event of Buyer’s a Repair Cost Dispute, the Closing Date and the Outside Closing Date shall be deferred as provided in Section 12.1.6. 12.1.2.1 If Seller and Purchaser agree on the Repair Costs within 15 days of Purchaser's receipt of Seller’s respective engineering consultants's notice of the Casualty or Taking (the "REPAIR NEGOTIATION PERIOD"), Buyer Purchaser's obligation to effect the Closing shall close not be affected, but the Purchase Price and take the Property as diminished Cash Purchase Price shall be reduced by such eventsthe Repair Costs so agreed. 12.1.2.2 If the parties do not agree on the Repair Costs within the Repair Negotiation Period (a "REPAIR COST DISPUTE"), subject either party may request Parsons Engineering to evaluate the affected Assets and deliver to Purxxxxxx and Seller its written estimate of the Repair Costs (the "THIRD PARTY ESTIMATE") within 15 days after the end of the Repair Negotiation Period. 12.1.2.2.1 If the Third Party Estimate is less than $100,000,000, the Purchaser's obligation to effect the Closing shall not be affected and the parties shall submit the Repair Cost Dispute to binding arbitration under Article 28 for resolution after the Closing, with a post-Closing adjustment to the Purchase Price equal to the finally-determined Repair Costs. 12.1.2.2.2 If the Third Party Estimate is equal to or greater than $100,000,000 but less than $625,000,000, Purchaser's obligation to effect the Closing shall not be affected, but the Cash Purchase Price shall be reduced by the amount of the Third Party Estimate and the parties shall submit the Repair Cost Dispute to binding arbitration under Article 28 for resolution after the Closing, with a post-Closing adjustment of the Purchase Price equal to the difference between the Third Party Estimate and the finally-determined Repair Costs. 12.1.2.2.3 If the Third Party Estimate is equal to or greater than $625,000,000, Purchaser may elect, by giving Seller written notice of election within 15 days of receipt of the Third Party Estimate, to terminate this Agreement (other than Sections 8.14, 9.6 and 31.14 and Article 20, which shall continue in effect) without further obligation to Seller, in which event Seller shall return the Earnest Money Deposit (together with interest earned thereon) to Purchxxxx xxthin three business days of receipt of Purchaser's notice of termination. 12.1.3 In the event of a Casualty or Taking between the Effective Date and the Closing Date affecting a Marketing Site, Seller shall pay to Purchaser, within five business days of receipt: (a) with regard to a Casualty, any insurance proceeds actually received by Seller on account of such Casualty, and (b) with regard to a Taking, any award actually received by Seller on account of such Taking. Neither a Casualty nor a Taking affecting a Marketing Site shall affect Purchaser's obligation to effect the Closing. 12.1.4 In the event of any reduction in the Purchase Price applied against the cash otherwise due in connection with a Taking at the Refinery, as provided in Section 12.1.2, Purchaser shall be entitled to collect from any condemnor the entire award(s) that may be made in any such proceeding, without deduction, to be paid out as follows: subject to actual receipt of such award(s) by Purchaser, (a) Purchaser shall pay to Seller all such amounts, up to the amount of such Purchase Price reduction, and (b) Purchaser shall be entitled to retain the balance (if any) of such award(s). Seller hereby expressly assigns to Purchaser all of Seller's right, title and interest in or to every such award, and agrees to execute any and all documents that may be required in order to facilitate collection thereof by Purchaser. 12.1.5 Any adjustment of the Purchase Price pursuant to this Section 12.1 which is necessary to reflect a final determination of Repair Costs after the Closing shall be made as follows: (a) an adjustment in favor of Purchaser shall be allocated first to a reduction of the full principal amount of the repair and/or replacementPurchaser Note and any balance paid in cash by Seller; and (b) an adjustment in favor of Seller shall be paid in cash to the extent the Cash Purchase Price had been reduced pursuant to this Section 12.1. Any casualty insurance such reduction, refund or payment shall be the sole property of Sellermade within 10 business days after such final determination. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 12.1.6 In the event of a dispute between Repair Cost Dispute, the Closing Date and the Outside Closing Date shall be deferred until (a) three business days after receipt of the Third Party Estimate, or (b) if Seller and Buyer elects the option in Section 12.1.2(a), as provided therein. 12.1.7 Purchaser may elect to secure contingent business interruption insurance on customary terms reasonably satisfactory to Seller with respect to a Casualty at the Refinery between the Effective Date and the Closing ("CASUALTY INSURANCE"). If Purchaser elects to secure Casualty Insurance, Purchaser will be responsible for the first $500,000 of the premium therefor, Seller will reimburse the actual premium cost in excess of repair and/or replacement with respect $500,000 up to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costsa total premium (including Purchaser's initial $500,000) of $1,000,000, and expenses Seller will reimburse Purchaser for 50% of this third engineer so selected shall be shared equally by Buyer and Sellerany of actual premium cost in excess of $1,000,000.

Casualty or Condemnation. During A. Each Subject Property is being conveyed to Purchaser in its condition as of the period from Transfer Effective Date, as the Opening same may be affected by condemnation or casualty loss. The initiation of Escrow through Closing, all risk any eminent domain proceedings with respect to a Subject Property or the occurrence of loss from a fire or other casualty which damages or condemnation shall be borne by Seller. If, prior to Closing, all or destroys any portion of the Subject Property is damaged by shall not affect the obligations of the parties with respect to such Subject Property and Purchaser shall pay the Purchase Price to Seller without adjustment of any kind, except as provided in paragraph B of this Section. In no event shall Seller have any obligation to repair or restore the Subject Property or any portion thereof. B. Notwithstanding the foregoing, if a fire or other natural casualty (collectively “Damage”) or is taken or made subject to condemnationoccurs after the date that the Appraisal has been completed but before the Transfer Effective Date, eminent domain, or other governmental acquisition proceedings (collectively “Eminent Domain”), then Seller shall promptly notify Buyer and cause a new Appraisal to be made at its expense, reflecting the following procedures shall apply: 12.1 If the aggregate cost of repair and/or replacement "as is" value of the Damage (collectivelySujectProperty after the casualty, “repair and/or replacement”) is $50,000 or less, in the opinion of Buyer’s and Seller’s respective engineering consultants, Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement. Any casualty insurance shall be the sole property of Seller. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyeradjusted accordingly. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 In the event of a dispute between the initiation of condemnation or eminent domain proceedings after the date that the Appraisal has been completed, the Purchase Price will be based upon the then-existing Appraisal, and no new Appraisal will be required; however, Seller and Buyer will assign to Purchaser Seller's rights in any condemnation award with respect to the cost of repair and/or replacement with respect Subject Property. The Resale Deadline for any property that is subject to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer condemnation or eminent domain proceedings shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve be tolled until such disputeproceedings have been terminated. All fees, costsFor any property for which Purchaser obtains casualty insurance, and expenses of this third engineer so selected which suffers casualty damage occurring after the Transfer Effective Date and exceeding $20,000, the Resale Deadline shall be shared equally by Buyer and Sellertolled until Purchaser has recovered insurance proceeds from its insurer, which recovery Purchaser shall diligently pursue.

Casualty or Condemnation. During 12.1.1 In the period from the Opening of Escrow through Closing, all risk of loss from fire or other casualty or condemnation shall be borne by Seller. Ifevent that, prior to Closingthe Closing Date, all or any portion of the Property Refinery or any Marketing Site is damaged or destroyed by fire or other natural casualty (collectively “Damage”a "CASUALTY") or is taken by condemnation or made subject eminent domain or by agreement in lieu thereof with any person or entity authorized to condemnation, eminent domain, or other governmental acquisition proceedings exercise such rights (collectively “Eminent Domain”a "TAKING"), then Seller shall promptly notify Buyer Purchaser thereof. 12.1.2 In the event of a Casualty or Taking between the Effective Date and the following procedures Closing Date affecting the Refinery, Seller shall apply: 12.1 If elect (a) to repair or replace or make adequate provision for the aggregate cost of repair and/or or replacement of the Damage affected Asset at Seller's cost prior to the Closing, in which case Purchaser's obligation to effect the Closing shall not be affected, but the Closing Date and the Outside Closing Date shall be deferred until three business days after repairs are completed and/or (collectivelyb) to negotiate with Purchaser to reduce the Purchase Price by an amount agreed to by Seller and Purchaser to reflect the cost to repair or replace the affected Assets (the "REPAIR COSTS"), “repair and/or replacement”) is $50,000 or lessin which case, in the opinion event of Buyer’s a Repair Cost Dispute, the Closing Date and the Outside Closing Date shall be deferred as provided in Section 12.1.6. 12.1.2.1 If Seller and Purchaser agree on the Repair Costs within 15 days of Purchaser's receipt of Seller’s respective engineering consultants's notice of the Casualty or Taking (the "REPAIR NEGOTIATION PERIOD"), Buyer Purchaser's obligation to effect the Closing shall close not be affected, but the Purchase Price and take the Property as diminished Cash Purchase Price shall be reduced by such eventsthe Repair Costs so agreed. 12.1.2.2 If the parties do not agree on the Repair Costs within the Repair Negotiation Period (a "REPAIR COST DISPUTE"), subject either party may request Parsons Engineering to evaluate the affected Assets and deliver to Puxxxxxxx and Seller its written estimate of the Repair Costs (the "THIRD PARTY ESTIMATE") within 15 days after the end of the Repair Negotiation Period. 12.1.2.2.1 If the Third Party Estimate is less than $100,000,000, the Purchaser's obligation to effect the Closing shall not be affected and the parties shall submit the Repair Cost Dispute to binding arbitration under Article 28 for resolution after the Closing, with a post-Closing adjustment to the Purchase Price equal to the finally-determined Repair Costs. 12.1.2.2.2 If the Third Party Estimate is equal to or greater than $100,000,000 but less than $625,000,000, Purchaser's obligation to effect the Closing shall not be affected, but the Cash Purchase Price shall be reduced by the amount of the Third Party Estimate and the parties shall submit the Repair Cost Dispute to binding arbitration under Article 28 for resolution after the Closing, with a post-Closing adjustment of the Purchase Price equal to the difference between the Third Party Estimate and the finally-determined Repair Costs. 12.1.2.2.3 If the Third Party Estimate is equal to or greater than $625,000,000, Purchaser may elect, by giving Seller written notice of election within 15 days of receipt of the Third Party Estimate, to terminate this Agreement (other than Sections 8.14, 9.6 and 31.14 and Article 20, which shall continue in effect) without further obligation to Seller, in which event Seller shall return the Earnest Money Deposit (together with interest earned thereon) to Purcxxxxx xithin three business days of receipt of Purchaser's notice of termination. 12.1.3 In the event of a Casualty or Taking between the Effective Date and the Closing Date affecting a Marketing Site, Seller shall pay to Purchaser, within five business days of receipt: (a) with regard to a Casualty, any insurance proceeds actually received by Seller on account of such Casualty, and (b) with regard to a Taking, any award actually received by Seller on account of such Taking. Neither a Casualty nor a Taking affecting a Marketing Site shall affect Purchaser's obligation to effect the Closing. 12.1.4 In the event of any reduction in the Purchase Price applied against the cash otherwise due in connection with a Taking at the Refinery, as provided in Section 12.1.2, Purchaser shall be entitled to collect from any condemnor the entire award(s) that may be made in any such proceeding, without deduction, to be paid out as follows: subject to actual receipt of such award(s) by Purchaser, (a) Purchaser shall pay to Seller all such amounts, up to the amount of such Purchase Price reduction, and (b) Purchaser shall be entitled to retain the balance (if any) of such award(s). Seller hereby expressly assigns to Purchaser all of Seller's right, title and interest in or to every such award, and agrees to execute any and all documents that may be required in order to facilitate collection thereof by Purchaser. 12.1.5 Any adjustment of the Purchase Price pursuant to this Section 12.1 which is necessary to reflect a final determination of Repair Costs after the Closing shall be made as follows: (a) an adjustment in favor of Purchaser shall be allocated first to a reduction of the full principal amount of the repair and/or replacementPurchaser Note and any balance paid in cash by Seller; and (b) an adjustment in favor of Seller shall be paid in cash to the extent the Cash Purchase Price had been reduced pursuant to this Section 12.1. Any casualty insurance such reduction, refund or payment shall be the sole property of Sellermade within 10 business days after such final determination. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 12.1.6 In the event of a dispute between Repair Cost Dispute, the Closing Date and the Outside Closing Date shall be deferred until (a) three business days after receipt of the Third Party Estimate, or (b) if Seller and Buyer elects the option in Section 12.1.2(a), as provided therein. 12.1.7 Purchaser may elect to secure contingent business interruption insurance on customary terms reasonably satisfactory to Seller with respect to a Casualty at the Refinery between the Effective Date and the Closing ("CASUALTY INSURANCE"). If Purchaser elects to secure Casualty Insurance, Purchaser will be responsible for the first $500,000 of the premium therefor, Seller will reimburse the actual premium cost in excess of repair and/or replacement with respect $500,000 up to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costsa total premium (including Purchaser's initial $500,000) of $1,000,000, and expenses Seller will reimburse Purchaser for 50% of this third engineer so selected shall be shared equally by Buyer and Sellerany of actual premium cost in excess of $1,000,000.

Casualty or Condemnation. During In the period from the Opening of Escrow through Closing, all risk of loss from fire or other casualty or condemnation shall be borne by Seller. Ifevent that, prior to Closingthe Closing Date, all or any portion of the Property is Company’s assets are damaged or destroyed by fire or other natural casualty for which the associated repair or replacement costs to the Company or associated materially adverse impact on the earnings of the Company could reasonably be expected to exceed $10,000,000 (collectively a “DamageCasualty”) or is taken by condemnation or made subject eminent domain or by agreement in lieu thereof with any Person or Governmental Authority authorized to condemnation, eminent domain, or other governmental acquisition proceedings exercise such rights (collectively a “Eminent DomainTaking”), then Seller shall promptly notify Buyer thereof. (i) In the event of a Casualty or Taking between the Date of this Agreement and the following procedures Closing Date, Seller shall apply: 12.1 If elect (i) to repair or replace, after reasonable consultation with Buyer, or make adequate provision for the aggregate cost of repair and/or or replacement of the Damage affected part of the Company at Seller’s cost prior to the Closing, in which case Buyer’s obligation to effect the Closing shall not be affected, but the Closing Date, at Buyer’s option, shall be deferred until three Business Days after repairs are completed and/or (collectivelyii) to negotiate with Buyer to reduce the Purchase Price by an amount agreed to by Seller and Buyer to reflect the cost to repair or replace the affected part of the Company (the “Repair Costs”), “repair and/or replacement”) is $50,000 or lessin which case, in the opinion event of a Repair Cost Dispute, the Closing Date shall be deferred as provided herein. (ii) If Seller and Buyer agree on the Repair Costs within 15 days of Buyer’s and receipt of Seller’s respective notice of the Casualty or Taking (the “Repair Negotiation Period”), Buyer’s obligation to affect the Closing shall not be affected, but the Purchase Price shall be reduced by the Repair Costs so agreed. (iii) If Seller and Buyer do not agree on the Repair Costs within the Repair Negotiation Period (a “Repair Cost Dispute”), either party may request a reasonably mutually acceptable engineering consultantsfirm to evaluate the affected part of the Company and deliver to Buyer and Seller its written estimate of the Repair Costs (the “Third-Party Estimate”) within 15 days after the end of the Repair Negotiation Period. (iv) If the Third-Party Estimate is less than $10,000,000, Buyer’s obligation to effect the Closing shall not be affected and the parties shall submit the Repair Cost Dispute to dispute resolution as set forth in Article IX below for resolution after the Closing, with a post-Closing adjustment to the Purchase Price equal to the finally-determined Repair Costs. (v) If the Third-Party Estimate is equal to or greater than $10,000,000 but less than $25,000,000, Buyer’s obligation to effect the Closing shall not be affected, but the Purchase Price shall be reduced by the amount of the Third-Party Estimate and the Parties shall submit the Repair Cost Dispute to dispute resolution under Article IX below after the Closing, with a post-Closing adjustment of the Purchase Price equal to the difference between the Third-Party Estimate and the finally-determined Repair Costs. (vi) If the Third-Party Estimate is equal to or greater than $25,000,000, Buyer shall close and take may elect, by giving Seller written notice of election within 15 days of receipt of the Property as diminished by such eventsThird-Party Estimate, subject to a terminate this Agreement without further obligation to Seller or to proceed in accordance with Section 4.1(s)(v) above. (vii) In the event of any reduction in the Purchase Price applied against in connection with a Taking, Seller shall be entitled to collect from Buyer or any condemnor the cash otherwise due at entire award(s) that may be made in any such proceeding or the Closing in the full amount of the repair and/or replacement. Any casualty any insurance shall be the sole property of Sellercoverage, without deduction. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 In the event of a dispute between Seller and Buyer with respect to the cost of repair and/or replacement with respect to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costs, and expenses of this third engineer so selected shall be shared equally by Buyer and Seller.

Casualty or Condemnation. During the period from the Opening 11.2.1 Seller shall give Purchaser prompt notice of Escrow through Closing, all risk of loss from (i) any fire or other casualty substantially affecting a material portion of the Assets (a “Casualty”) between the date of this Agreement and the Closing Date and (ii) any actual, pending or proposed condemnation of any portion of the Assets, as to which Seller have received written notice from the condemning authority (“Taking”). 11.2.2 In the event the Assets suffer a Casualty subsequent to the date of this Agreement, but prior to the Closing Date, Purchaser’s obligation to close hereunder shall not be borne by Seller. Ifaffected except as provided below in this Section 11.2.2, and Seller shall elect to either (i) prior to Closing, all repair fully or any portion make adequate provision for the full repair of such Assets to at least their prior condition, (ii) terminate this Agreement in accordance with Article XVI below without further Liability between the parties, or (iii) provide Purchaser with a credit against the Purchase Price in an amount agreed upon by Seller and Purchaser to represent the reduction in the value of the Property is damaged Assets by fire or other natural casualty (collectively “Damage”) or is taken or reason of the Casualty, taking into account any repairs actually made subject by Seller to condemnationsuch Assets prior to the Closing Date. However, eminent domain, or other governmental acquisition proceedings (collectively “Eminent Domain”), then if Seller shall promptly notify Buyer and have elected to provide Purchaser with a credit against the following procedures shall apply: 12.1 If Purchase Price as provided in clause (iii) above, Purchaser may terminate this Agreement prior to the aggregate cost of repair and/or replacement Closing by notice to Seller if the amount of the Damage (collectively, “repair and/or replacement”) is $50,000 or less, in the opinion of Buyer’s and Seller’s respective engineering consultants, Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against caused by the cash otherwise due Casualty exceeds $250,000. In the event Seller exercises its option under clause (i) above, Closing may be delayed until June 30, 2010 to allow for the necessary repairs, at which point, if said repairs have not been completed, Seller shall be deemed to have exercised its option under (iii) above, and the Closing in the full amount of the repair and/or replacement. Any casualty insurance shall be the sole property of Selleroccur on such date. 12.2 If the aggregate cost of repair and/or replacement is greater than $50,000, in the opinion of Buyer’s and Seller’s respective engineering consultants, or in the event of Eminent Domain, then Buyer may terminate this Agreement in which Deposit shall be returned to the Buyer. If Buyer does not elect to terminate this Agreement, then Buyer shall close and take the Property as diminished by such events, subject to a reduction in the Purchase Price applied against the cash otherwise due at the Closing in the full amount of the repair and/or replacement and any casualty insurance shall be the sole property of Seller. 12.3 11.2.3 In the event of a dispute between Seller and Buyer with respect Taking, Purchaser’s obligation to close hereunder shall not be affected unless the amount of the reduction in the value of the Assets by reason of the Taking exceeds $150,000. In the event of any Taking that does not result in a termination of this Agreement, all sums of money (or other consideration) awarded as damages or otherwise received on account of such Taking shall be applied as a credit to Purchaser to the cost of repair and/or replacement with respect to the matters set forth in this Section, an engineer designated by Seller and an engineer designated by Buyer shall select an independent engineer licensed to practice in the jurisdiction where the Property is located who shall resolve such dispute. All fees, costsPurchase Price, and expenses of this third engineer so selected all claims for any such award shall be shared equally by Buyer and Sellerassigned to Purchaser.