Common use of Closing Despite Casualty/Condemnation Clause in Contracts

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members shall not as provided herein, or neither Investor or Existing Members has the right to, Terminate this Agreement on account thereof, then the parties shall proceed to Closing without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and (a) Existing Members shall assign to the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income prior to Closing); (b) Existing Members shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) all proceeds previously paid to Existing Members with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members in connection with such casualty or Condemnation Proceeding, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor shall pay Investor’s Pro Rata Share of such excess to Existing Members within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreement.

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members Buyer shall not as provided hereinnot, or neither Investor or Existing Members has the no right to, Terminate this Agreement on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income Payments prior to Closing); (bc) Existing Members Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller’s deductible under Seller’s insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members Seller in connection with such casualty or Condemnation Proceeding, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor Buyer shall pay Investor’s Pro Rata Share of such excess to Existing Members Seller within one five (15) Business Day Days after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreement).

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members shall not as provided herein, or neither Investor or Existing Members has the right to, Terminate Buyer nor Seller Terminates this Agreement with respect to the affected Hotel(s) or all Hotels on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income rental payments prior to Closing); (bc) Existing Members Buyer and Seller shall cause Owner and Manager to waive any of their respective ability to terminate the Management Agreement as to such affected Hotel or Hotels as a result of such Hotel or Hotels being “Unsuitable for Its Permitted Use” pursuant to the terms of the Management Agreement; and (d) Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller’s deductible under Seller’s insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members Seller in connection with receiving such casualty proceeds or Condemnation Proceedingaward, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor shall pay Investor’s Pro Rata Share of such excess to Existing Members within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreementcondemnation.

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members Buyer shall not as provided hereinnot, or neither Investor or Existing Members has the no right to, Terminate this Agreement on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income Payments prior to Closing); , (bc) Existing Members Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller’s deductible under Seller’s insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members Seller in connection with such casualty or Condemnation Proceeding, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor Buyer shall pay Investor’s Pro Rata Share of such excess to Existing Members Seller within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreement).

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members shall not as provided herein, or neither Investor or Existing Members has the right to, Terminate Buyer nor Seller Terminates this Agreement with respect to the affected Hotel(s) or all Hotels on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income rental payments prior to Closing); (bc) Existing Members Buyer and Seller shall cause Owner and Manager to waive any of their respective ability to terminate the Management Agreement as to such affected Hotel or Hotels as a result of such Hotel or Hotels being "Unsuitable for Its Permitted Use" pursuant to the terms of the Management Agreement; and (d) Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller's deductible under Seller's insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ ' fees, expenses and disbursements, incurred by Existing Members - 26 - Seller in connection with receiving such casualty proceeds or Condemnation Proceedingaward, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor shall pay Investor’s Pro Rata Share of such excess to Existing Members within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreementcondemnation.

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members Buyer shall not as provided hereinnot, or neither Investor or Existing Members has the no right to, Terminate this Agreement on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income Payments prior to Closing); (bc) Existing Members Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller’s deductible under Seller’s insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members Seller in connection with such casualty or Condemnation Proceeding, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty casualty, provided that Seller shall consult with Buyer with regard to any such stabilization or repair activities prior to taking such actions, to the extent feasible (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor Buyer shall pay Investor’s Pro Rata Share of such excess to Existing Members Seller within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreement).

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members Buyer shall not as provided hereinnot, or neither Investor or Existing Members has the no right to, Terminate this Agreement on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income Payments prior to Closing); , (bc) Existing Members Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller’s deductible under Seller’s insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, reasonably incurred by Existing Members Seller in connection with such casualty or Condemnation Proceeding, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor Buyer shall pay Investor’s Pro Rata Share of such excess to Existing Members Seller within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with ). Seller’s obligations under this Section 9.2 shall survive the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating AgreementClosing.

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members shall not as provided herein, or neither Investor or Existing Members has the right to, Terminate Buyer nor Seller Terminates this Agreement on account thereofAgreement, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty Purchase Price, (b) Seller shall assign, or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and cause to be assigned, to Buyer (awithout recourse to Seller) Existing Members shall assign to all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income rental payments prior to Closing); (bc) Existing Members Buyer and Seller shall, or shall cause the Lessor and Lessee of the Hotel, to waive any of their respective ability to terminate the Hotel Lease Agreement as to the Hotel as a result of the Hotel being "Unsuitable for Its Permitted Use" pursuant to the terms of the Hotel Lease Agreement; and (d) Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) the Company's deductible under the Company's insurance policy, plus all proceeds or awards previously paid to Existing Members the Company with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ ' fees, expenses and disbursements, incurred by Existing Members Seller or the Company in connection with receiving such casualty proceeds or Condemnation Proceedingaward, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the - 25 - Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller or the Company in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor shall pay Investor’s Pro Rata Share of such excess to Existing Members within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreementcondemnation.

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members shall not as provided herein, or neither Investor or Existing Members has the right to, Terminate Buyer nor Seller Terminates this Agreement on account thereofAgreement, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty Purchase Price, (b) Seller shall assign, or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and cause to be assigned, to Buyer (awithout recourse to Seller) Existing Members shall assign to all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income rental payments prior to Closing); (bc) Existing Members Buyer and Seller shall, or shall cause the Lessor and Lessee of the Hotel, to waive any of their respective ability to terminate the Hotel Lease Agreement as to the Hotel as a result of the Hotel being “Unsuitable for Its Permitted Use” pursuant to the terms of the Hotel Lease Agreement; and (d) Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) the Company’s deductible under the Company’s insurance policy, plus all proceeds or awards previously paid to Existing Members the Company with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members Seller or the Company in connection with receiving such casualty proceeds or Condemnation Proceedingaward, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller or the Company in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor shall pay Investor’s Pro Rata Share of such excess to Existing Members within one (1) Business Day after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreementcondemnation.

Closing Despite Casualty/Condemnation. If a casualty or Condemnation Proceeding occurs and either Investor or Existing Members Buyer shall not as provided hereinnot, or neither Investor or Existing Members has the no right to, Terminate this Agreement on account thereof, then at Closing (a) the parties conveyance of the Property shall proceed to Closing be less such portion of the Property so taken by (or, as applicable, shall be subject to) said Condemnation Proceeding, without adjustment of the Investor Capital Contribution on account of such casualty or Condemnation Proceeding except as expressly provided in this Paragraph 9.2 and Purchase Price, (ab) Existing Members Seller shall assign to Buyer (without recourse to Seller) all the Company at Closing all their rights to all awards or insurance proceeds with respect to such casualty or Condemnation Proceeding (except for business interruption coverage with respect to Rental Payments, income from Bookings and any other income prior to Closing)or casualty; (bc) Existing Members Seller shall provide a credit at Closing equal to Investor’s Pro Rata Share of (i) Seller’s deductible under Seller’s insurance policy, plus all proceeds or awards previously paid to Existing Members Seller with respect to such casualty or, with respect to a Condemnation Proceeding, all awards previously paid to Existing Members with respect to such or Condemnation Proceeding, less (ii) an amount equal to the sum of (A) the actual out-of-pocket costs, expenses and fees, including reasonable attorneys’ fees, expenses and disbursements, incurred by Existing Members Seller in connection with such casualty or Condemnation Proceeding, (B) any portion of any Condemnation Proceeding award that is allocable to loss of use of the Property prior to Closing, and the proceeds of any rental loss, business interruption or similar insurance to the extent allocable to the period prior to the Closing Date, and (C) the reasonable and actual out-of-pocket costs incurred by Existing Members Seller in stabilizing and/or repairing the Property following a casualty (and to the extent the sum of the items in (ii) is greater than the items in (i), Investor Buyer shall pay Investor’s Pro Rata Share of such excess to Existing Members Seller within one five (15) Business Day Days after receipt of such awards or proceeds after Closing) and (c) any actual out-of-pocket costs or expenses in connection with the restoration of the Property as a result of such casualty or Condemnation Proceeding shall be treated as a Company Cost Overrun pursuant to the terms of the Amended and Restated Operating Agreement).