Common use of Damage Before Closing Clause in Contracts

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing. If loss or damage to the Property occurs prior to Closing, then: (a) if the cost of repair or restoration, in the opinion of an independent architect or engineer satisfactory to the Vendor and the Purchaser, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days to repair, or if Tenants that, in the aggregate, lease more than 5% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage (such damage to the Property being referred to herein as “Substantial Damage”), then the Purchaser may, by written notice given to the Vendor within ten (10) Business Days after its receipt of the Expert Opinion, elect to terminate this Agreement and the parties shall be released from all obligations under this Agreement (except those which are expressly stated to survive termination of this Agreement). The Deposit and all interest earned thereon shall be returned to the Purchaser; or (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but the Purchaser has not elected to exercise its termination right pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price in favour of the Purchaser by the amount of the insurance deductible and the Vendor shall assign the proceeds of the property insurance to the Purchaser and the parties shall complete the Transaction without further delay or extension of the Closing Date and the Purchaser shall assume responsibility for remediation. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it is confirmed that in the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closing.

Damage Before Closing. The interest of the Vendor in and to the Property Industrial Building being purchased, acquired and assumed by the Purchaser pursuant to the terms and conditions of this Agreement shall be at the risk of the Vendor until Closing. If In the event that any loss of or damage to the Industrial Building resulting from insured perils or risks the cost of repair or replacement of which would exceed $150,000.00 (such loss or damage and repair or replacement cost to be determined by the Vendor's arm's length, independent architect, engineer or other qualified expert retained for the purpose), occurs before Closing which the Vendor has not covenanted to repair by the Closing Date or to adjust for, or in respect of which the Purchaser is not prepared to accept such Vendor's covenant to repair or adjust, then the Purchaser, within five (5) days after disclosure to the Purchaser by the Vendor of the loss or damage and the extent thereof and the Vendor's concurrent Notice that it does or does not intend to repair or adjust, at its option shall by Notice to the Vendor either: (i) elect to complete the purchase of the Property in which event the Purchaser shall be entitled to the proceeds of insurance in respect of the loss or damage and the Vendor shall pay any deductibles in respect of such loss or damage, or (ii) elect not to complete the purchase of the Property in which case this Agreement shall be terminated and of no further force and effect and the Purchaser shall be entitled to the return of the Deposit forthwith. In the event of loss or damage to the Property occurs prior to Closing, then: (a) if Industrial Building resulting from insured perils or risks the cost of repair or restorationreplacement of which is less than or equal to $150,000.00 and provided that proceeds of insurance are available (prior to or after Closing) to pay for the full cost (less reasonable deductibles) of repairing or replacing such loss or damage, in the opinion of an independent architect or engineer satisfactory Purchaser shall have no right to terminate this Agreement, the Vendor and the Purchaser, each acting reasonably, given within 30 days of the occurrence shall pay any deductibles in respect of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days to repairdamage, or if Tenants that, in the aggregate, lease more than 5% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage (such damage to the Property being referred to herein as “Substantial Damage”), then the Purchaser may, by written notice given to the Vendor within ten (10) Business Days after its receipt of the Expert Opinion, elect to terminate this Agreement and the parties shall be released from entitled to an assignment of all obligations under this Agreement (except those which are expressly stated to survive termination proceeds of this Agreement). The Deposit and all interest earned thereon shall be returned to the Purchaser; or (b) if insurance in respect of such loss or damage is not Substantial Damagedamage, or is Substantial Damage but the Purchaser has not elected to exercise its termination right pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price in favour of the Purchaser by the amount of the insurance deductible and the Vendor shall assign the proceeds of the property insurance to the Purchaser and the parties shall complete the Transaction without further delay or extension within transaction with respect to the Property. Any damage to the Commercial Building, regardless of the Closing Date cost required to repair or replace shall not entitle the Purchaser to terminate, but the Purchaser shall receive credit for any deductible in respect thereof and the Purchaser shall assume responsibility for remediation. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or be entitled to an assignment of insurance proceeds in connection therewith if the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it is confirmed that in the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closing.completes this transaction..

Damage Before Closing. The interest of the Vendor Smart in and to the Property Lands shall be at the risk of the Vendor Smart until Closing, subject to the terms and conditions of this Agreement. If after the Execution Date but before Closing: (i) erosion, subsidence or similar loss or damage to the Property occurs prior to ClosingLands occurs; or (ii) Hazardous Substances in, on, under or at the Lands are discharged or released, and are in excess of the applicable standards for soil, groundwater and sediment as set out in Environmental Laws (in the case of (i) and/or (ii), “Relevant Damage”), then: (a) if If the cost of repair or restorationrestoration of such Relevant Damage, in the opinion of an independent architect or engineer satisfactory to the Vendor and the PurchaserApplicable Consultant, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars (an amount equal to $10,000,000.00) and will take longer than 180 days to repair, or if Tenants that, in the aggregate, lease more than 5% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage 750,000 (such damage to the Property Relevant Damage being referred to herein as “Substantial Damage”), then the Purchaser may, Smart or SmartStop may by written notice given to the Vendor other party within ten (10) 10 Business Days after its receipt the Applicable Consultant provides notice to Smart and SmartStop of the Expert Opiniondetermination of such Substantial Damage, elect to terminate this Agreement, and upon delivery of such notice this Agreement shall terminate and the parties SmartStop and Smart shall be released from all obligations under this Agreement (except for those obligations which are expressly stated in Section 10.19 to survive the termination of this Agreement). The ) and the Deposit and all interest earned accrued thereon shall be returned to the Purchaser; ordealt with in accordance with Section 5.2. (b) if If such loss or damage Relevant Damage is not Substantial Damage, or is Substantial Damage but the Purchaser no Party has not elected to exercise its any termination right with respect to the Lands or this Agreement, as the case may be, pursuant to Subsection 7.2(aSection 9.3(a), then neither party then: (i) no Party shall have any right to terminate this Agreement by virtue thereof, ; (ii) the Vendor Parties shall adjust complete the Purchase Price in favour of Transaction; (iii) the Purchaser Property Contribution Amount will be reduced by the amount of any deductible that is payable under the insurance policy of Smart with respect to such Relevant Damage (to the extent such deductible has not been paid by Smart); and (iv) Smart will assign to the Limited Partnership on the Closing Date, Smart’s claim to any and all insurance proceeds with respect to such Relevant Damage (including insurance proceeds to cover lost rent and other income from the Vendor Lands from and after the Closing Date, if any, but excluding any insurance for loss of income suffered by Smart prior to the Closing Date) and any claim Smart may have against any Person in connection with such Relevant Damage. After Closing, the Limited Partnership shall assign promptly and diligently repair or cause to be repaired such Relevant Damage at its own expense. Each of Smart and SmartStop shall forthwith notify the proceeds other upon becoming aware of the property insurance to the Purchaser and the parties shall complete the Transaction without further delay or extension existence of the Closing Date and the Purchaser shall assume responsibility for remediationany Relevant Damage. If the damage or destruction Relevant Damage occurs at such time that there is insufficient time for the Vendor Smart or the Purchaser SmartStop to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it or if such date is confirmed that in not a Business Day, then the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closingnext Business Day thereafter.

Damage Before Closing. The interest of the Vendor in and to the Property Hotel Assets shall be at the risk of the Vendor for insurance purposes until the Closing Date. Prior to Closing, the Vendor shall maintain its current insurance on the Hotel Assets (or such other substantially similar insurance as reasonably determined by the Vendor). If loss or damage to the Property Hotel Assets occurs at any time prior to Closing, then: (a) if such loss or damage is of such a nature and to such an extent that the cost of repair or restoration, in the reasonable opinion of an the Vendor’s independent architect or engineer satisfactory to the Vendor and the Purchaserengineer, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days an amount in aggregate equal to repair, or if Tenants that, in the aggregate, lease more than 525% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage Purchase Price (such damage to the Property being referred to herein as “Substantial Damage”), then the Purchaser may, may by written notice given to the Vendor within ten (10) five Business Days after its receipt it receives written notice of the Expert Opinionoccurrence of such Substantial Damage, elect to terminate this Agreement and the parties shall be released from all obligations under this Agreement Deposit (except those which are expressly stated to survive termination of this Agreement). The Deposit and together with all interest earned thereon thereon, and any security provided by the Purchaser pursuant to Section 2.5(a)(iii), if applicable) shall be returned to the PurchaserPurchaser forthwith after termination, subject to the Vendor’s rights pursuant to Section 2.5(c); orand (b) if such loss or damage is does not constitute Substantial Damage, or is does constitute Substantial Damage but the Purchaser has elected not elected to exercise its right of termination right pursuant to Subsection 7.2(aSection 8.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price in favour of the Purchaser by the amount of the insurance deductible and the Vendor shall assign the proceeds of the property insurance pay to the Purchaser on Closing (or, in the case of a right to proceeds of insurance, assign to the Purchaser on Closing) the total of all proceeds of insurance in respect of such loss or damage (except to the extent such proceeds compensate for income lost for the period before the Closing Date which proceeds shall be entirely the property of the Vendor) plus any deductibles relating to such insurance policies, and the parties shall complete the Transaction without further delay or extension Transaction. With respect to the payments to be made by the Vendor to the Purchaser under this Section 8.2(b) with regard to the deductibles, the parties agree that such amounts may be credited in favour of the Closing Date and Purchaser against the Purchase Price payable by the Purchaser shall assume responsibility for remediationon Closing (rather than paid by the Vendor to the Purchaser). If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier last day of the date such election is made or the period for making the Purchaser’s election, or if such election has expireddate is not a Business Day, then the next Business Day thereafter. For greater certainty, it is confirmed that The rights to proceeds of insurance as set out in the event that Subsection 7.2(bSection 8.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closing.

Damage Before Closing. (a) The interest interests of the Vendor in and to the Property being purchased, acquired and assumed by the Purchaser pursuant to the terms and conditions of this Agreement shall be at the risk of the Vendor until Closing. If any loss or damage occurs before Closing to the Property occurs prior to Closing, then: (a) if the cost of repair or restorationBuilding, in the opinion excess of an independent architect or engineer satisfactory to the Vendor and the Purchaser, each acting reasonably, given within 30 days ten percent (10%) of the occurrence of Purchase Price (such loss or damage (and replacement cost to be determined by the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days to repairPurchaser’s arm’s length, independent architect, engineer or if Tenants thatother qualified expert, in the aggregate, lease more than 5% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage (such damage to the Property being referred to herein as “Substantial Damage”acting reasonably), then the Purchaser may, by written notice given to the Vendor within ten (10) Business Days after its receipt of the Expert Opinion, elect to terminate this Agreement and the parties shall be released from all obligations under this Agreement (except those which are expressly stated to survive termination of this Agreement). The Deposit and all interest earned thereon shall be returned to the Purchaser; or (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but the Purchaser has not elected to exercise its termination right pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price in favour of the Purchaser by the amount of the insurance deductible and the Vendor shall assign the proceeds of the property insurance to the Purchaser and the parties shall complete the Transaction without further delay or extension of the Closing Date and the Purchaser shall assume responsibility for remediation. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is within five (5) Business Days after disclosure to the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it is confirmed that in the event that Subsection 7.2(b) is applicable, the failure Purchaser by the Vendor of the loss or damage and the extent thereof, shall by Notice to the Vendor elect either (i) to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension the purchase of the Closing Date. This Section 7.2 Property, in which event the Purchaser shall be entitled to the proceeds of insurance, if any, in respect of the loss or damage and the Vendor shall pay any deductibles in respect of such loss or damage, or (ii) not to complete the purchase of the Property, in which case this Agreement shall be terminated, null and void and of no further force or effect whatsoever, each of the Vendor and the Purchaser shall be released from all of its liabilities and obligations under this Agreement (other than those liabilities and obligations which are expressly stated to survive the Closingtermination of this Agreement), and the Deposit and accrued interest shall, subject to Section 4.2(b), be returned to the Purchaser. (b) If other loss or damage to the Building occurs, the Purchaser shall have no right to elect to terminate this Agreement, the Purchaser shall be entitled to all proceeds of insurance in respect of such loss or damage (plus the reimbursement by the Vendor of any deductibles), and the Parties shall complete the within Transaction.

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of any and all loss or damage to the Property in excess of $50,000 forthwith following the occurrence thereof. If loss or damage to the Property occurs prior to Closingoccurs, then: (a) if the cost of repair or restoration, in the opinion of an independent the Vendor’s architect or engineer satisfactory to the Vendor and the Purchaserengineer, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days an amount equal to repair, or if Tenants that, in the aggregate, lease more than 535% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage Purchase Price (such damage to the Property being referred to herein as “Substantial Damage”), then the Vendor or the Purchaser may, may by written notice given to the Vendor other party within ten (10) Business Days after its receipt the occurrence of the Expert Opinionsuch Substantial Damage, elect to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the parties Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement). The ) and the Deposit and all interest earned thereon shall be returned to the PurchaserPurchaser forthwith without deduction; orand (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but the Purchaser neither party has not elected to exercise its the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price pay any insurance deductibles in favour respect of such loss or damage, the Purchaser by the amount shall be entitled to all proceeds of the property insurance deductible and in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall assign the proceeds of the property insurance be paid to the Purchaser and Vendor), the parties shall complete the Transaction without further delay or extension of the Closing Date and the Purchaser shall assume responsibility for remediationpromptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it or if such date is confirmed that in not a Business Day, then the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closingnext Business Day thereafter.

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. If loss or damage to the Property occurs prior to Closingoccurs, then: (a) if the cost of repair or restoration, in the opinion of an independent the Vendor’s architect or engineer satisfactory to the Vendor and the Purchaserengineer, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days an amount equal to repair, or if Tenants that, in the aggregate, lease more than 535% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage Purchase Price (such damage to the Property being referred to herein as “Substantial Damage”), then the Vendor or the Purchaser may, may by written notice given to the Vendor other party within ten (10) Business Days after its receipt the occurrence of the Expert Opinionsuch Substantial Damage, elect to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the parties Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement). The ) and the Deposit and all interest earned thereon shall be returned to the PurchaserPurchaser forthwith without deduction; orand (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but the Purchaser neither party has not elected to exercise its the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price pay any insurance deductibles in favour respect of such loss or damage, the Purchaser by the amount shall be entitled to all proceeds of the property insurance deductible and in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall assign the proceeds of the property insurance be paid to the Purchaser and Vendor), the parties shall complete the Transaction without further delay or extension of the Closing Date and the Purchaser shall assume responsibility for remediationpromptly and diligently repair such damage at its own expense following Closing. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it or if such date is confirmed that in not a Business Day, then the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closingnext Business Day thereafter.

Damage Before Closing. (a) The interest Seller shall promptly give the Partnership and MHI Inc. written notice of any damage in excess of $250,000 to a Facility or $1,000,000 to the Facilities, in the aggregate, describing such damage, stating whether and to what extent such damage and loss of rents is covered by insurance, any applicable deductibles, retentions or self-insurance amounts, and the estimated cost and timing of repairing such damage and any injuries to persons or damage to other Person’s property, attaching a copy of the Vendor in and relevant insurance policy to the Property shall be at the risk of the Vendor until Closing. such notice. (b) If loss or damage to a Facility occurs at any time after the Property occurs prior to date hereof and before Closing, then: (ai) if the cost of repair or restoration, in the opinion of restoration exceeds an independent architect or engineer satisfactory amount equal to the Vendor and the Purchaser, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days to repair, or if Tenants that, in the aggregate, lease more than 510% of the square footage of the Buildings, have the right value allocated to terminate their Leases as a result of such damage Facility in Schedule 6.16(b) (such damage to the Property being referred to herein as “Substantial Material Damage” and such Facility so affected being referred to as “Materially Damaged Facility”), then then, following a thirty (30) Business Day period during which the Purchaser maySeller shall have the opportunity to repair such Material Damage to a condition that such Facility is no longer considered a Materially Damaged Facility, the Partnership, at its sole option, may by written notice given to the Vendor Seller within ten (10) Business Days after its the receipt of the Expert OpinionSeller’s notification in respect of such damage, either: (a) elect to terminate this Agreement in respect of such Materially Damaged Facility and in such event the parties Seller shall take such steps as are necessary to cause the Purchased Entity (or, if applicable, the Indirect Purchased Entity) to transfer the Facility to the Seller or its Affiliates (other than the Purchased Entity or its Subsidiaries) or otherwise dispose of the Facility prior to Closing and, accordingly, the Purchase Price shall be released from all obligations under this Agreement (except those reduced by that portion of the Purchase Price allocated to said Materially Damaged Facility, which are expressly stated to survive termination of this Agreementallocation is set forth on Schedule 6.16(b). The Deposit and all interest earned thereon shall be returned to the Purchaser; or (b) elect to complete the Transaction, including with respect to said Materially Damaged Facility, and (i) all proceeds of insurance relating to said Material Damage pursuant to the insurance policies of the Purchased Entity (or applicable Indirect Purchased Entity) shall be paid to the Partnership, upon receipt and (ii) the Seller and the Partnership shall complete this Transaction in accordance with its terms and the Partnership shall receive a credit to the Purchase Price for any unpaid deductible amount pursuant to said policies of insurance at Closing. (c) If the Partnership does not provide the Seller with notice of its election prior to the expiry of said ten (10) Business Day period, then the Partnership shall be deemed to have elected to complete the Transaction in accordance with Section 6.16(b)(i)(b). (ii) if such loss or damage is does not Substantial represent Material Damage, or is Substantial Damage but the Purchaser has not elected to exercise its termination right pursuant to Subsection 7.2(a), then neither no party hereto shall have any right to terminate this Agreement by virtue thereof, and the Vendor Seller shall adjust (i) repair any such loss or damage and return the Facility to substantially the same condition as it was prior to such damage at its expense prior to the Closing or (ii) elect to pay all proceeds of insurance relating to the damage pursuant to the insurance policies of the Purchased Entity or applicable Indirect Purchased Entity to the Partnership and provide Partnership a credit to the Purchase Price at Closing in favour of the Purchaser by the amount of any applicable deductible that has not been expanded by the insurance deductible and the Vendor shall assign the proceeds of the property insurance to the Purchaser Seller and the parties shall complete the Transaction without further delay or extension of the Closing Date and the Purchaser shall assume responsibility for remediation. If Transaction. (iii) if the damage or destruction occurs at such time that there is insufficient time for the Vendor Seller or the Purchaser Partnership to make its election hereunder, the Closing Date shall be postponed to a date which is five ten (510) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it or if such date is confirmed that not a Business Day, then the next Business Day thereafter. (c) Nothing in this Section 6.16 shall be construed in any way as limiting the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension rights of the Closing Date. This Section 7.2 shall survive the ClosingPartnership and MHI to terminate this Agreement pursuant to Article 8 as a result of Material Damage.

Damage Before Closing. The interest of the Vendor in and to the Property Hotel Assets shall be at the risk of the Vendor Seller until Closingthe Closing Date. If loss or damage to the Property Hotel Assets occurs at any time prior to Closing, then: (a) if such loss or damage is of such a nature and to such an extent that the cost of repair or restoration, in the opinion of an the Seller’s independent architect or engineer satisfactory to the Vendor and the Purchaserengineer, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars an amount in aggregate equal to FIVE MILLION DOLLARS ($10,000,000.005,000,000) and will take longer than 180 days to repair, or if Tenants that, in the aggregate, lease more than 5% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage (such damage to the Property being referred to herein as “Substantial Damage”), then the Purchaser may, may by written notice given to the Vendor Seller within ten (10) seven Business Days after its receipt it receives written notice of the Expert Opinionoccurrence of such Substantial Damage, elect to terminate this Agreement and Agreement, in which case, the parties shall be released from all obligations under this Agreement (except those which are expressly stated to survive termination of this Agreement). The Deposit and all any accrued interest earned thereon shall be returned paid to the Purchaser; orand (b) if such loss or damage is does not constitute Substantial Damage, or is does constitute Substantial Damage but the Purchaser has elected not elected to exercise its termination right pursuant to Subsection 7.2(a)of termination, then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor Purchaser shall adjust be entitled to all proceeds of insurance in respect of such loss or damage (except insofar as such proceeds relate to lost income on or before the Purchase Price in favour Closing Date which shall be entirely the property of the Purchaser by the amount of the insurance deductible and the Vendor shall assign the proceeds of the property insurance to the Purchaser Seller), and the parties shall complete the Transaction without further delay Transaction, provided that the Purchase Price shall be reduced by an amount equal to the deductible under the applicable property insurance, if the Seller has not already paid the deductible, and uninsured losses, if any. The Seller has delivered to the Purchaser a certificate or extension certificates of insurance setting out the property coverage for the Hotel Assets, which shall be for full replacement cost, subject to deductibles. The Seller covenants with the Purchaser that the Seller will, from the Execution Date to the Closing Date and Date, maintain such Existing Insurance over the Purchaser shall assume responsibility for remediationHotel Assets. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier last day of the date such election is made or the period for making the Purchaser’s election, or if such election has expired. For greater certaintydate is not a Business Day, it is confirmed that in then the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closingnext Business Day thereafter.

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. If loss or damage to the Property occurs prior to Closingoccurs, then: (a) if the cost of repair or restoration, in the opinion of an independent the Vendor's architect or engineer satisfactory to the Vendor and the Purchaserengineer, each acting reasonably, given within 30 days of the occurrence of such loss or damage (the “Expert Opinion”) will exceed Ten Million Dollars ($10,000,000.00) and will take longer than 180 days an amount equal to repair, or if Tenants that, in the aggregate, lease more than 550% of the square footage of the Buildings, have the right to terminate their Leases as a result of such damage Purchase Price (such damage to the Property being referred to herein as “"Substantial Damage”"), then the Vendor or the Purchaser may, may by written notice given to the Vendor other party within ten (10) Business Days after its receipt the occurrence of the Expert Opinionsuch Substantial Damage, elect to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the parties Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement). The ) and the Deposit and all interest earned thereon shall be returned to the Purchaser; orand (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but the Purchaser neither party has not elected to exercise its the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall adjust the Purchase Price pay any insurance deductibles in favour respect of such loss or damage, the Purchaser by the amount shall be entitled to all proceeds of the property insurance deductible and in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall assign the proceeds of the property insurance be paid to the Purchaser and Vendor), the parties shall complete the Transaction without further delay or extension of the Closing Date and the Purchaser shall assume responsibility for remediationpromptly and diligently repair such damage at its own expense following Closing. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired. For greater certainty, it or if such date is confirmed that in not a Business Day, then the event that Subsection 7.2(b) is applicable, the failure by the Vendor to complete any necessary repair or restoration prior to Closing shall not result in a delay or extension of the Closing Date. This Section 7.2 shall survive the Closingnext Business Day thereafter.