Partial Taking If any part of the Premises is taken and the remaining part after Landlord makes repairs and alterations is reasonably suitable, as reasonably determined by Landlord and Tenant, for Tenant’s continued occupancy for the purposes and uses permitted by this Lease, this Lease shall, as to the part so taken terminate as of the date that possession of such part of the Premises is taken and the Base Monthly Rental shall be reduced in the same proportion that the floor area of the portion of the Building so taken (less any addition thereto by reason of any reconstruction) bears to the original floor area of the Building. Tenant shall, at its sole cost and expense, make all necessary repairs or alterations to the Building so as to make the portion of the Building not taken a complete architectural unit in accordance with the terms and provisions of Section 19.4, Landlord shall make available to Tenant any condemnation proceeds it receives which are allocable to such portion of the Building in accordance with the terms and provisions of Section 19.4. Base Monthly Rental due and payable hereunder shall be temporarily abated during such restoration period in proportion to the degree to which Tenant’s use of Premises is impaired. Notwithstanding the foregoing, if more than twenty-five percent (25%) of the square footage of the Building is taken or sold under such threat, Landlord may terminate this Lease as of the date that the condemning authority takes possession by delivery of written notice of such election within twenty (20) days after Landlord has been notified of the taking or, in the absence thereof, within twenty (20) days after the condemning authority shall have taken possession.
Substantial Taking If the whole of the Premises, or such part thereof as shall substantially interfere with Tenant's use and occupancy of the Premises, as contemplated by this Lease, is taken for any public or quasi-public purpose by any lawful power or authority by exercise of the right of appropriation, condemnation or eminent domain, or sold to prevent such taking, either party will have the right to terminate this Lease effective as of the date possession is required to be surrendered to such authority.
Total Taking If the entire Building or Premises are taken by right of eminent domain or conveyed in lieu thereof (a “Taking”), this Lease shall terminate as of the date of the Taking.
Casualty and Taking 3.4.1 In the event that the Premises or any material part thereof shall be destroyed or damaged by fire or casualty, shall be taken by any public authority or for any public use or shall be condemned by the action of any public authority, then this Lease may be terminated at Landlord’s election.
3.4.2 Such election, which may be made notwithstanding the fact that Landlord’s entire interest may have been divested, shall be made by the giving of notice by Landlord to Tenant within fourteen (14) days after the date of the taking or casualty.
3.4.3 If Landlord does not elect to so terminate, this Lease shall continue in force and as long as the damage is not caused by the negligence or other wrongful act of Tenant or Tenant Parties, Base Rent shall be proportionately suspended or abated until the Premises, excluding any improvements to the Premises made at Tenant’s expense, or what may remain thereof, shall be put by Landlord in proper condition for use, which Landlord covenants to do with reasonable diligence to the extent permitted by zoning and building codes or ordinances then in existence.
3.4.4 Irrespective of the form in which recovery may be had by law, all rights to seek reimbursement for damages or compensation from fire or other casualty or any taking by eminent domain or condemnation shall belong to Landlord in all cases.
3.4.5 Tenant hereby grants to Landlord all of Tenant’s rights to such claims for damages and compensation and covenants to deliver such further assignments thereof as Landlord may from time to time request.
3.4.6 Nothing contained herein shall be construed to prevent Tenant 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 Landlord from the taking authority.
Partial Condemnation In the event of a Condemnation of less than the whole of any Property such that such Property is still suitable for its Permitted Use, Tenant shall, to the extent of the Award and any additional amounts disbursed by Landlord as hereinafter provided, commence (or cause to be commenced) promptly and continue diligently to restore (or cause to be restored) the untaken portion of the applicable Leased Improvements so that such Leased Improvements shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as such Leased Improvements existing immediately prior to such Condemnation, in material compliance with all Legal Requirements, subject to the provisions of this Section 11.2. If the cost of the repair or restoration of the affected Property exceeds the amount of the Award, Tenant shall give Landlord Notice thereof which notice shall set forth in reasonable detail the nature of such deficiency and whether Tenant shall pay and assume the amount of such deficiency (Tenant having no obligation to do so, except that if Tenant shall elect to make such funds available, the same shall become an irrevocable obligation of Tenant pursuant to this Agreement). In the event Tenant shall elect not to pay and assume the amount of such deficiency, Landlord shall have the right (but not the obligation), exercisable at Landlord’s sole election by Notice to Tenant given within sixty (60) days after Tenant’s Notice of the deficiency, to elect to make available for application to the cost of repair or restoration the amount of such deficiency; provided, however, in such event, upon any disbursement by Landlord thereof, the Minimum Rent shall be adjusted as provided in Section 3.1.1(c). In the event that neither Landlord nor Tenant shall elect to make such deficiency available for restoration, either Landlord or Tenant may terminate this Agreement with respect to the affected Property and the entire Award shall be allocated as set forth in Section 11.5. Subject to the terms hereof, Landlord shall contribute to the cost of restoration that part of the Award necessary to complete such repair or restoration, together with severance and other damages awarded for the taken Leased Improvements and any deficiency Landlord has agreed to disburse, to Tenant regularly during the restoration period so as to permit payment for the cost of such repair or restoration. Landlord may, at its option, condition advancement of such Award and other amounts on (a) the absence of any Event of Default, (b) its approval of plans and specifications of an architect satisfactory to Landlord (which approval shall not be unreasonably withheld, delayed or conditioned), (c) general contractors’ estimates, (iv) architect’s certificates, (d) conditional lien waivers of general contractors, if available, (e) evidence of approval by all governmental authorities and other regulatory bodies whose approval is required, (f), if Tenant has elected to advance deficiency funds pursuant to the preceding paragraph, Tenant depositing the amount thereof with Landlord and (g) such other certificates as Landlord may, from time to time, reasonably require. Landlord’s obligation under this Section 11.2 to disburse the Award and such other amounts shall be subject to (x) the collection thereof by Landlord and (y) the satisfaction of any applicable requirements of any Facility Mortgage, and the release of such Award by the applicable Facility Mortgagee. Tenant’s obligation to restore the Leased Property shall be subject to the release of the Award by the applicable Facility Mortgagee to Landlord.
Damage or Destruction Condemnation (a) In the event of partial damage or destruction of the Property of a type which can, under the circumstances, be expected in the reasonable judgment of Seller and Buyer to be restored or repaired at a cost of $500,000 or less, then, this Contract shall be consummated on the Closing Date at the Purchase Price, and unless such damage has been repaired by Seller prior to Closing, Seller shall assign to Buyer the casualty insurance proceeds payable to Seller and business interruption proceeds applicable to the period on and after the Closing Date payable to Seller (but only to the extent such business interruption proceeds are assignable to Buyer), less any amounts expended by Seller for partial restoration and with a credit to Buyer for the amount of any deductible and/or uninsured damage.
(b) In the event that the Property shall have been damaged by fire or casualty, the cost of repair or restoration of which would, in the reasonable judgment of Seller and Buyer, exceed the sum of $500,000, then unless Seller has previously repaired or restored the Property to its former condition, at Buyer’s election, Seller shall either (i) pay over or assign to Buyer, on delivery of the Deed all casualty insurance proceeds payable to Seller and business interruption proceeds applicable to the period on and after the Closing Date payable to Seller (but only to the extent such business interruption proceeds are assignable to Buyer), less any amounts reasonably expended by Seller for partial restoration, with a credit to Buyer for the amount of any deductible and/or uninsured damage, or (ii) direct Escrow Agent to return the Deposit to Buyer in which case, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Contract shall terminate and be without further recourse or remedy to the parties hereto. Notwithstanding the foregoing, if Buyer elects to proceed with the transaction under clause (i) of this paragraph (b), in no event shall Seller be obligated to incur any out of pocket cost above $500,000 (whether attributable to a casualty being uninsured, underinsured or to any deductible).
(c) If all or part of the Property is taken by condemnation, eminent domain or by agreement in lieu thereof, or any proceeding to acquire, take or condemn all or part of the Property is threatened or commenced, Buyer may either terminate this Contract (in which event Buyer shall be entitled to a return of the Deposit and accrued interest thereon, if any, and, except for the Surviving Obligations, all other obligations of the parties hereto shall cease and this Contract shall terminate and be without further recourse or remedy to the parties hereto) or close title to the Property in accordance with the terms hereof, without reduction in the Purchase Price, together with an assignment of Seller's rights to any award paid or payable by or on behalf of the condemning authority. If Seller has received payments from the condemning authority and if Buyer elects to close title to the Property, Seller shall credit the amount of said payment against the Purchase Price at the Closing.
Damage, Destruction and Condemnation (a) Seller will bear the risk of loss for any damage, destruction, or condemnation that may occur prior to Closing. If any portion of the Property is damaged or destroyed prior to Closing, Purchaser may elect to terminate this Agreement, unless prior to Closing all that damage has been repaired and the Improvements restored or replaced to their condition prior to the damage. If any material portion of the Property is condemned or taken prior to Closing, Purchaser may elect to terminate this Agreement.
(b) Purchaser's election under this Section with respect to any condemnation or taking will be exercised by written notice to Seller within twenty (20) days after written notice from Seller of the condemnation or taking. Purchaser's election under this Section with respect to any damage or destruction not repaired prior to Closing will be exercised by written notice to seller within twenty (20) days of the later to occur of:
(i) written notice from Seller of the damage or destruction and Seller's inability to repair and restore prior to Closing; or
(ii) written notice from Seller's insurance carrier regarding the estimated cost of repair, replacement, or reconstruction and the portion of the repair, replacement, or reconstruction for which insurance proceeds will be made available. The Closing Date will be extended as necessary to give Purchaser time to make the election.
(c) If Purchaser elects to terminate this Agreement under this Section, neither party will have any further rights, duties, or obligations. If Purchaser does not elect to terminate this Agreement, this Agreement will remain in full force and the purchase contemplated in this Agreement, less any interest taken by condemnation, will be effected, and at the Closing, Seller will pay the Purchaser the amount of any deductible under Seller's insurance policy and will assign, transfer, and set over to Purchaser all of Seller's right, title, and interest to any condemnation awards or insurance proceeds that have been or that may later be made for the taking or destruction.
CASUALTY LOSS AND CONDEMNATION (a) If after the date of execution of this Agreement and prior to the Closing any part of the Assets suffers a Casualty Loss or if any part of the Assets is taken in condemnation or under the right of eminent domain or if proceedings for such purposes are pending or Threatened, Seller shall promptly give Buyer written notice of such occurrence, including reasonable particulars with respect thereto, and this Agreement shall remain in full force and effect notwithstanding any such destruction, taking, proceeding, or threat, subject to Sections 11.08 and 11.14.
(b) With regard to a Casualty Loss or condemnation occurring after the date of execution of this Agreement, without Buyer’s prior consent, no insurance or condemnation proceeds shall be committed or applied by Seller to repair, restore, or replace a lost, damaged, destroyed or taken portion of the Assets if the cost to repair, restore, or replace a lost, damaged, destroyed or taken portion of the Assets is projected to exceed $50,000. To the extent such proceeds are not committed or applied by Seller prior to the Closing Date in accordance with this Section 11.16(b), Seller shall at the Closing pay to Buyer all sums paid to Seller by reason of such loss, damage, destruction or taking, less any reasonable costs and expenses incurred by Seller in collecting such proceeds. In addition and to the extent such proceeds have not been committed or applied by Seller in accordance with this Section 11.16(b), in such repair, restoration, or replacement, Seller shall transfer to Buyer, at Closing, without recourse against Seller, all of the right, title, and interest of Seller in and to any unpaid insurance or condemnation proceeds arising out of such loss, damage, destruction or taking, less any reasonable costs and expenses incurred by Seller in collecting such proceeds. Any such funds which have been committed by Seller for repair, restoration, or replacement as aforesaid shall be paid by Seller for such purposes or, at Seller’s option, delivered to Buyer upon Seller’s receipt from Buyer of adequate assurance and indemnity that Seller shall incur no liability or expense as a result of such commitment.
(c) If and to the extent any portion of the loss attributable to a Casualty Loss occurring after the date of execution of this Agreement and before Closing is not covered by insurance (such uncovered portion of the Casualty Loss being referred to in this Section as an "uninsured loss"), Buyer and Seller shall attempt to agree on the value of the uninsured Casualty Loss on or before the date five (5) days after Buyer receives written notice of the Casualty Loss. If the parties are not able to agree on such value within such 5-day period, the value shall be determined by an independent casualty adjuster, experienced in determining casualty losses in matters similar to the disputed Casualty Loss, who shall be selected by Seller from a list of three (3) such independent casualty adjusters that is provided to Seller by Buyer. Said independent casualty adjuster shall be selected by Seller within five (5) days of the written receipt by Seller of Buyer’s written listing of independent casualty adjusters and shall provide both Seller and Buyer with a complete and documented report as to his findings within ten (10) Business Days after being selected by Seller. For purposes of this Section, the value of the uninsured Casualty Loss shall be equal to the lesser of (i) the aggregate reduction in Allocated Value of the affected Assets resulting from the uninsured Casualty Loss, if such affected Assets are not repaired, or (ii) the amount required to repair the affected portion of the Assets to its condition immediately preceding the occurrence of the Casualty Loss plus any other Damages which may be suffered on account of such Casualty Loss. The Purchase Price shall be reduced by the amount of the value of such an uninsured Casualty Loss as finally determined pursuant to this Section, and if such final determination is not available on the scheduled Closing Date, Closing shall not be delayed, but rather, the amount paid at Closing shall be reduced by the value of the uninsured Casualty Loss estimated in good faith by Buyer, and the difference between such good faith estimate and the value finally determined pursuant hereto shall be included as part of the final adjustments to be made after Closing as contemplated by Section 2.05.
Casualty or Condemnation If, prior to the Closing, the Improvements or any material portion thereof (having a replacement cost equal to or in excess of $100,000 are damaged or destroyed by fire or casualty, or are taken by eminent domain by any governmental entity, and Seller is unable to restore such damage or destruction prior to the Closing Date in the case of a casualty, then Buyer shall have the option, exercisable by written notice given to Seller at or prior to the Closing, to terminate this Agreement, whereupon all obligations of all parties hereto shall cease, the Deposit shall be returned to Buyer, and this Agreement shall be void and without recourse to the parties hereto except for provisions which are expressly stated to survive such termination. If Buyer does not elect to terminate this Agreement as aforesaid or if such damage or destruction or taking has a replacement cost or is in an amount of less than $100,000, Buyer shall proceed with the consummation of the Closing (to the extent then otherwise obligated to do so) without reduction or offset of the Purchase Price, and in such case, unless the Seller shall have previously restored the Real Property to its condition prior to the occurrence of any such damage or destruction, Seller shall pay over or assign to Buyer all amounts received or due from, and all claims against, any insurance company or governmental entity as a result of such destruction or taking, and Seller shall pay the applicable deductible amount under the insurance maintained by Seller. In the event of any such casualty or condemnation, Seller agrees to (a) provide Buyer with copies of all written communications between Seller or the Partnership and their insurance carriers or the applicable governmental authorities, as applicable, the subject matter of which is the adjustment of insurance proceeds or condemnation awards, and (b) allow Buyer to review and make comments to any proposed settlement arrangement proposed to be entered into by Seller or the Partnership with any such third party; provided, that after the Inspection Period, if Buyer has not terminated this Agreement, Seller shall not enter into any settlement arrangement concerning casualty or condemnation in excess of $50,000 without obtaining the prior written consent of Buyer, which consent may be granted or withheld in Buyer’s sole discretion.
Complete Taking If at any time during the Fee Term title to or temporary use of the entire Project should become vested in a public or quasi-public authority by virtue of the exercise of a taking by condemnation, inverse condemnation or the right of eminent domain, or by voluntary transfer under threat of such taking, or in the event that title to a portion of the Project shall be taken rendering continued occupancy of the Project commercially infeasible in the judgment of the Sponsor, the Sponsor shall have the option to terminate this Fee Agreement as of the time of vesting of title by sending written notice to the County within a reasonable period of time following such vesting.
