Common use of Damage or Condemnation Clause in Contracts

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.

Damage or Condemnation. If, before Closing, In the event of any part damage to or destruction of any of the Acquired Company Assets are damaged Improvements on the Leased Premises by fire or destroyedother casualty or in the event of any taking or condemnation, in whole or are condemnedin part, of the Leased Premises or if proceedings are filed for condemnation any Improvements thereon (or any conveyance in lieu thereof), the rights of Landlord and obligations of Tenant hereunder shall be subject and subordinate to the rights of each Leasehold Mortgagee and obligations of Tenant under the right Leasehold Mortgage as to the repair, demolition or restoration of eminent domain that results in damagethe Leased Premises and the Improvements thereon and as to the receipt, destruction use, and disbursement of all of the insurance or condemnation proceeds (except such portion of property with (A) the proceeds as is paid or awarded pursuant to this Lease to Landlord solely for its reversionary interest in the case Leased Premises and is not required by any Leasehold Mortgagee to be applied to any repair, demolition or restoration of the Acquired Companies Leased Premises or the Improvements thereon); provided that proceeds for loss of rents shall be applied in the following order- first, to any sums then due and payable under this Lease; second, to the payment of any amounts then due and payable under each Leasehold Mortgage in the order of their priority; and third, unless otherwise provided in any Leasehold Mortgage, to the Tenant. Any proceeds to be applied to the repair, demolition or restoration of the Leased Premises and the Improvements thereon shall be held by the Leasehold Mortgagee (if there is then more than one Leasehold Mortgagee, such proceeds shall be held by the senior Leasehold Mortgagee or its designee) and disbursed in the manner provided in its Leasehold Mortgage (or, if not so provided, in such manner as the Leasehold Mortgagee shall determine) for the payment of the costs of such repair or restoration. Any proceeds (other than loss of rent proceeds) remaining after being applied to the Javelina Partnerships), a fair market value (as determined payment of indebtedness secured by the Parties), or (BLeasehold Mortgage(s) in and/or to the case payment of the Javelina Partnershipscosts of repair, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% demolition or less restoration of the Purchase Price, Leased Premises and the Purchase Price Improvements thereon shall be reduced by (x) paid to Tenant and Landlord in accordance with the case terms of the Acquired Companies Lease. If any Leasehold Mortgagee (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to designee or nominee) shall acquire the Leasehold Estate by Foreclosure, such damage, destruction Leasehold Mortgagee (or condemnation, its designee or nominee) and (ii) more than 10% of the Purchase Price, the Buyer its successors and assigns shall not be obligated to consummate demolish, repair or restore the Closing, provided that, Improvements (regardless of whether such damage or destruction or condemnation or conveyance in lieu of electing not to closethereof occurred before or after Foreclosure), except as may be otherwise required by law, and the Buyer Leasehold Mortgagee (or its designee or nominee) may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair apply all or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction a portion of the Purchase Price therefor), in which case the Seller shall pay insurance or condemnation proceeds to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers payment of the Seller and unpaid indebtedness then or previously secured by its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationLeasehold Mortgage.

Damage or Condemnation. If, Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened before the Closing, and risk of loss to the Property due to fire, flood or any part other cause before the Closing, shall remain with Seller. If before the Closing the Property or any portion thereof shall be “materially damaged,” (as hereinafter defined) or if the Property or any material portion thereof shall be subjected to a bona fide threat (pursuant to a written notice to Seller or its agent) of condemnation or shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain or condemnation), then Buyer may terminate this Agreement by written notice to Seller given within 10 days of Seller’s notice to Buyer of the Acquired Company Assets are damaged occurrence of the damage or destroyedtaking. In the event of such termination, the Escrow Agent shall refund the Xxxxxxx Money to Buyer, and neither party shall have any further rights or are condemnedliabilities hereunder except as provided in Sections 2.2, or 2.3 and 10.2 of this Agreement. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to the next business day following the end of said 10-day period. If no such election is made, and in any event if proceedings are filed for condemnation or under the right of damage is not material, this Agreement shall remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain that results in damageor condemnation, destruction or condemnation of property shall be effected with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of no further adjustment to the Purchase Price, and upon the Purchase Price shall be reduced by (x) in the case Closing of the Acquired Companies (other than the Javelina Partnerships) such amountthis purchase, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain(i) assign, or transfer and set over to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, or pending any insurance proceeds that may thereafter be made for such damage or destruction, (ii) give Buyer a credit at Closing for an amount equal to any condemnation awards or insurance proceeds collected by Seller as a result of any such condemnation or damage or destruction, and the amount of any insurance deductible under such policies (but in no event shall the amount of such credit to Buyer exceed the Purchase Price), and (iii) receive a credit at Closing for any sums expended by Seller toward the restoration or repair of the Property, which have been approved by Buyer. In the event the amount of awards or proceeds subsequently received by Buyer exceeds the Purchase Price, then Buyer shall pay to Seller any such excess within 10 days after Buyer’s receipt of such awards or proceeds. For the purposes of this Section, the phrases “material damage”, “materially damaged” and “material portion” means (a) damage reasonably estimated by Seller and Buyer to exceed 5 percent of the Purchase Price attributable to the Building to repair, (b) material access to the Building, or a material portion of the parking for the Building is destroyed as a result of a casualty or is taken (or is threatened to be taken) under the power or threat of eminent domain, (c) the Tenant has the right to terminate its Lease as a result of a casualty or a temporary or permanent taking (or threatened taking that are actually received by taking) under the Seller power or threat of eminent domain and has not waived such right prior to Closing, or (d) other than the deductible, any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable damage to the Property which is uninsured, and not otherwise credited to Buyer under by Seller. The provisions of this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to 4.5 shall survive indefinitely the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent close of escrow and recordation of the BuyerDeed, which consent and shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur deemed merged into any of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationClosing documents.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Business Assets are damaged damaged, lost or destroyed, or are condemned, forfeited or seized, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) or properties resulting in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the an aggregate Damage Amount of (i) 10% or less of the Purchase Pricethan $10,000,000, the Purchase Price shall not be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amountDamage Amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, retain all property casualty insurance proceeds payable to the Seller or its Affiliates condemnation proceeds relating to such damage, destruction or condemnation, and (ii) more than 10% of $10,000,000 but less than the Cap Amount, the Purchase PricePrice shall be reduced by such Damage Amount in excess of $10,000,000, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain all property casualty insurance proceeds or condemnation proceeds relating to such damage, destruction or condemnation, or (iii) more than Cap Amount, the Buyer shall not be obligated to consummate close the Closingtransactions contemplated by this Agreement; provided, provided that, in lieu of electing not to closeclose the transactions contemplated by this Agreement, the Buyer may elect: elect either (xy) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (yz) to accept the Acquired Company Equity Interests, notwithstanding any such damage, destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received in respect of such damage, destruction or condemnation by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and or its Affiliates by reason of the damage, destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the damage, destruction, takingcondemnation, or pending or threatened taking condemnation that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina PartnershipsAffiliates. If any such payments payable to the Buyer under required by this Section 5(e) to be paid to the Buyer are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (yz) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld withheld, conditioned or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days 20 Business Days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.

Damage or Condemnation. IfRisk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened against the Real Property before the Close of Escrow, and risk of loss to the Real Property due to fire, flood or any other cause before Closingthe Close of Escrow, shall remain with Seller. If before the Close of Escrow the Real Property or any part of the Acquired Company Assets are damaged or destroyed, or are condemnedportion thereof shall be materially damaged, or if proceedings are filed for the Real Property or any material portion thereof shall be subjected to a BONA FIDE threat of condemnation or under shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results in damageor condemnation, destruction or condemnation then Buyer may elect not to acquire the Real Property by delivering written notice of property with such election to Seller within five (A5) in the case days after Buyer learns of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), damage or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties)taking, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price which event Buyer shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall no longer be obligated to proceed with the Closingpurchase, and the Seller shall retainno longer be obligated to sell, or the Real Property and the Deposit (including the Performance Deposit) shall be returned to Buyer. If the Closing Date is within the aforesaid 5-day period, then the Close of Escrow shall be extended to the extent received by any Acquired Company or the Buyer next business day following the Closingend of said 5-day period. If no such election is made, and in any event if the damage is not material, this Agreement shall remain in full force and effect, the Buyer or such Acquired Company shall pay to the Sellerpurchase contemplated herein, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and (ii) more than 10% upon the Close of the Purchase PriceEscrow, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may thereafter be made for such damage or other payments arising out destruction giving Buyer a credit at the Close of Escrow for any deductible under such policies. For purposes of this SECTION 5.4, the phrase(s) (i) "MATERIAL DAMAGE" or "MATERIALLY DAMAGED" means damage reasonably exceeding ten percent of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers Purchase Price of the Seller Real Property, and its Affiliates and the Javelina Partnerships. If (ii) "MATERIAL PORTION" means any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent portion of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur Real Property that has a "fair market value" exceeding 10% of the date this Agreement terminates or Purchase Price of the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationReal Property.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships Acquired Companies prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina PartnershipsAcquired Companies. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.

Damage or Condemnation. If, before Closing, Risk of loss resulting from any part of the Acquired Company Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction proceeding which is commenced or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with has been threatened before the Closing, and the Seller shall retain, or risk of loss to the extent received by Property due to fire, flood or any Acquired Company or the Buyer following other cause before the Closing, shall remain with Seller. If before Closing the Buyer Property or such Acquired Company any portion thereof shall pay be damaged, or if the Property or any portion thereof shall be subjected to a bona fide threat of condemnation or shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction taking by eminent domain or condemnation, and then Seller shall give written notice of such damage or taking to Purchaser (ii) more than 10% the “Seller Notice”). Upon receipt of the Purchase PriceSeller’s notice, the Buyer shall not be obligated to consummate the Closing, provided that, Purchaser may elect in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the SellerPurchaser’s sole discretion, to terminate this Agreement by giving written notice of its election to Seller within ten (10) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction business days after Purchaser’s receipt of the Purchase Price therefor)Seller Notice, in which case event the Escrow Deposit and Additional Escrow Deposit and any accrued interest shall be returned to Purchaser without any further instructions or direction from any party hereto. If no such election is made, this Agreement shall remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Closing of the transaction described herein, Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, Purchaser all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromiseassign, settle transfer and set over to Purchaser any insurance proceeds that may thereafter be made for such damage or adjust destruction giving Purchaser a credit at Closing for any amounts payable to the Buyer deductible under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationpolicies.

Damage or Condemnation. IfSubject to the terms hereof, risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened against any Real Property before the applicable Closing, and risk of loss to such Real Property due to fire, flood or any part of other cause before the Acquired Company Assets are damaged applicable Closing, shall remain with the Seller that owns such Real Property. If before the applicable Closing for any Real Property, there is “Major” (as defined below) loss or destroyeddamage to such Property, then, the applicable Seller shall give prompt written notice thereof to Purchaser (which notice shall include the cost to repair and restore the Property as determined by an architect or engineer selected by the applicable Seller and reasonably approved by Purchaser), and Purchaser must elect to either (a) deliver a Withdrawn Property Notice with respect to such Property (in which event Section 7.6 shall apply), or are condemned, or if proceedings are filed for condemnation or under (b) acquire such Property (subject to the right satisfaction of eminent domain that results in damage, destruction or condemnation of property with (Aall applicable closing conditions) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), a) or (Bb) in by delivering written notice of such election to the case applicable Seller on or before five (5) business days after receipt of notice from the Javelina Partnershipsapplicable Seller of such damage or taking, and the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price applicable Closing Date shall be reduced extended as necessary to allow for such time period to elapse. Failure to deliver notice within the aforesaid time period shall be deemed an election by Purchaser to acquire such Property. If (x) in the case of the Acquired Companies (other than the Javelina Partnerships) no such amountelection is made, or (y) Purchaser elects to acquire such Property, or (z) the loss or damage to such Property is not “Major”, then this Agreement shall remain in the case of the Javelina Partnershipsfull force and effect, the Javelina Percentage Interest purchase of such amountaffected Property contemplated herein, the Parties less any interest taken by eminent domain or condemnation, shall be obligated to proceed effected with the Closingno further adjustment, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following at the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the applicable Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of Purchaser its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, and any insurance claims and proceeds that may thereafter be made for such damage or pending or threatened taking that are actually received by the Seller or any of its Affiliates destruction and that are not required to be paid by any of them as Purchaser shall receive a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments credit at the Buyer’s expense and remit all such amounts, less Closing in the amount of any related expenses, to deductible or co-payments under the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware applicable insurance policy of such damage, destruction or proposed condemnationSeller.

Damage or Condemnation. IfIn the event of any damage to or destruction of any Improvements on the Premises by fire or other casualty or in the event of any taking or condemnation, before Closingin whole or in part, any part of the Acquired Company Assets are damaged Property (or destroyedany conveyance in lieu thereof), or are condemned, or if proceedings are filed for condemnation or the rights of Landlord and obligations of Tenant under the right Lease shall be subject and subordinate to the rights of eminent domain that results in damageVHDA and obligations of Tenant under its Leasehold Mortgage with VHDA as to the repair, destruction demolition or restoration of the Property and as to the receipt, use, and disbursement of all of the insurance or condemnation proceeds (except such portion of property with (A) the proceeds as is paid or awarded pursuant to the Lease to Landlord solely for its reversionary interest in the case Property and is not required by VHDA to be applied to any repair, demolition or restoration of the Acquired Companies Property); provided that proceeds for loss of Tenant’s rents under Tenancy Agreements shall be applied in the following order: first, to the payment of any amounts then due and payable under the Leasehold Mortgage with VHDA; and second, unless otherwise provided in the Leasehold Mortgage with VHDA, to the Tenant. Any proceeds to be applied to the repair, demolition or restoration of the Property shall be held by VHDA and disbursed in the manner provided in its Leasehold Mortgage (or, if not so provided, in such manner as VHDA shall reasonably determine) for the payment of the costs of such repair or restoration. Any proceeds (other than loss of rent proceeds) remaining after being applied to the Javelina Partnerships), a fair market value (as determined payment of indebtedness secured by VHDA’s Leasehold Mortgage and/or to the Parties), or (B) in the case payment of the Javelina Partnershipscosts of repair, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% demolition or less restoration of the Purchase Price, the Purchase Price Property shall be reduced by (x) paid to Tenant and Landlord in accordance with the case terms of the Acquired Companies (other than Lease. If VHDA shall acquire the Javelina Partnerships) such amountLeasehold Estate by Foreclosure, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, VHDA and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, successors and (ii) more than 10% of the Purchase Price, the Buyer assigns shall not be obligated to consummate demolish, repair or restore the Closing, provided that, Improvements (regardless of whether such damage or destruction or condemnation or conveyance in lieu of electing not to closethereof occurred before or after Foreclosure), the Buyer except as may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair be otherwise required by law, and VHDA may apply all or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction a portion of the Purchase Price therefor), in which case the Seller shall pay insurance or condemnation proceeds to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers payment of the Seller and unpaid indebtedness then or previously secured by its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationLeasehold Mortgage.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets are damaged damaged, lost or destroyed, or are condemned, forfeited or seized, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) or properties resulting in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the an aggregate Damage Amount of (i) 10% or less of the Purchase Pricethan $5,000,000, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amountDamage Amount, the Parties shall be obligated to proceed with the Closing, and the Seller Sellers shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, retain all property casualty insurance proceeds payable to the Seller or its Affiliates condemnation proceeds relating to such damage, destruction or condemnation, and or (ii) more than 10% of the Purchase Price$5,000,000, the Buyer Investor shall not be obligated to consummate the Closingclose, provided that, in lieu of electing not to close, the Buyer Investor may elect: either (xy) to offer to extend the date for Closing to allow the Seller Sellers the opportunity (in the Seller’s Sellers’ sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (yz) to accept the Acquired Company Equity InterestsAssets, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller Entities shall pay to the Buyer Investor all property casualty insurance proceeds actually received in respect of such damage, destruction or condemnation by the Seller Entities or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the any Seller and or its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller Entities or any of its their Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the BuyerInvestor, or subrogate the Buyer Investor to, all of the right, title and interest of the Seller Entities and its their Affiliates in and to any such unpaid awards or other payments arising out of the damage, destruction, takingcondemnation, or pending or threatened taking condemnation that are actually received by the Seller Entities or any of its their Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller Entities and its Affiliates and the Javelina Partnershipstheir Affiliates. If any such payments payable to the Buyer under required by this Section 5(e) to be paid to the Investor are not assignable, the Seller Entities will collect such payments at the BuyerInvestor’s expense and remit all such amounts, less any related expenses, to the Buyer Investor as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller Entities shall not compromise, settle or adjust any amounts payable to the Buyer Investor under clause (yz) above, without first obtaining the written consent of the BuyerInvestor, which consent shall not be unreasonably withheld or delayed. The BuyerInvestor’s election under this Section 5(e) shall expire twenty (20) business days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer Investor receives written notice from the Seller Sellers describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.

Damage or Condemnation. IfIf before the Closing the Property or any portion thereof shall be materially damaged, before Closing, any part or the commencement of condemnation proceedings shall affect all or a material portion of the Acquired Company Assets are damaged or destroyedProperty, or are condemned, or if proceedings are filed for condemnation or under the right then Buyer may terminate this Agreement by written notice to Seller given within 10 days of eminent domain that results in damage, destruction or condemnation of property with (A) in the case Seller’s notice of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case occurrence of the Javelina Partnershipsdamage or taking. In the event of such termination, the Javelina Percentage Interest Escrow Agent shall refund the Xxxxxxx Money to Buyer, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2.3 and 10.2 of a fair market value (as determined by this Agreement. For the Parties)purposes of this Section, in the aggregate of phrases “material damage” and “materially damaged” means (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other estimated repair cost is greater than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 105% of the Purchase Price, (ii) such damage or destruction will entitle Tenant to terminate the Buyer Lease or xxxxx its rent in whole or in part and such abated rent is not entirely replaced with the proceeds of a rent interruption or similar policy held by Seller or Buyer, (iii) the damage or destruction is not covered by Seller’s insurance or if such insurance is not for full replacement cost and Seller is not willing to provide a credit against the Purchase Price for the uncovered portion of the loss, or (iv) Buyer’s lender shall not be obligated refuse to consummate the Closingloan to Buyer, provided thatdespite Buyer’s good faith efforts to proceed with the loan, as a result of such damage or destruction. For the purposes of this Section, condemnation proceedings shall be deemed to affect a material portion of the Property if (i) the condemnation proceedings eliminate any driveway or access points for the Property for which a replacement driveway or access point is unavailable, or which results in lieu a taking of electing not to close, a portion of the Buyer may elect: (x) to offer to extend building greater than 5% or a taking of the date for Closing to allow parking areas of the Seller the opportunity (Property below legal requirements or requirements in the Seller’s sole discretionLease, (ii) such condemnation proceedings will entitle Tenant to repair terminate the Lease or replacexxxxx its rent in whole or in part and such abated rent is not entirely replaced with the proceeds of a rent interruption or similar policy held by Seller or Buyer, or (iii) Buyer’s lender shall refuse to cause consummate the repair or replacement ofloan to Buyer, any such damaged or destroyed assets; or (y) accept despite Buyer’s good faith efforts to proceed with the Acquired Company Equity Interestsloan, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking result of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to condemnation proceedings. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to repair, restore or replace the next business day following the end of said 10-day period. If no such damaged or taken assetselection is made, and in any event if the damage is not material, this Agreement shall assign remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Closing of this purchase, Seller shall (i) assign, transfer and set over to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, or pending any insurance proceeds that may thereafter be made for such damage or threatened taking that are actually destruction, (ii) give Buyer a credit at Closing for an amount equal to any condemnation awards or insurance proceeds collected by Seller as a result of any such condemnation or damage or destruction, and the amount of any insurance deductible under such policies (but in no event shall the amount of such credit to Buyer exceed the Purchase Price), and (iii) receive a credit at Closing for any sums expended by Seller toward the restoration or repair of the Property. In the event the amount of awards or proceeds subsequently received by Buyer exceeds the Purchase Price, then Buyer shall pay to Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under excess within 10 days after Buyer’s receipt of such awards or proceeds. The provisions of this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to 4.4 shall survive indefinitely the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent close of escrow and recordation of the BuyerDeed, which consent and shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur deemed merged into any of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationClosing documents.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets are damaged or destroyeddestroyed by fire or other casualty, or if any part of the Assets are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnershipsdomain, the Javelina Percentage Interest result of which will have a fair market value (as determined by the Parties)Material Adverse Effect, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (xi) to proceed to Closing with a reduction in the Purchase Price reasonably determined by the Buyer to equal the fair value of the damage or taking (which amount may not exceed either the cost to replace or repair the property damaged or destroyed, or the value of the property condemned); or (ii) offer to extend the date for Closing to allow the Seller TXU the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, replace any such damaged or destroyed assetsAsset; or (yiii) accept the Acquired Company Equity InterestsAssets, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller TXU shall pay to the Buyer all property casualty insurance proceeds actually received sums paid to TXU by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty third parties (including insurance providers of the Seller TXU and its Affiliates Affiliates) by reason of the destruction, or taking of such assetsportion of the Assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships TXU prior to the Closing Date to repair, restore or replace such damaged or taken assetsAsset, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates TXU in and to any such unpaid awards or other payments from third parties (including insurance providers of TXU and its Affiliates) arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnershipstaking. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller TXU will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller TXU shall not compromise, settle or adjust any amounts payable by reason of any destruction, taking, or pending or threatened taking, as to such portion of the Assets as to which Buyer under has elected the option set forth in clause (yiii) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under TXU shall promptly notify Buyer of any destruction or taking of the type described in this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation5.9.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets are damaged or destroyeddestroyed by fire or other casualty, or if any part of the Assets are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnershipsdomain, the Javelina Percentage Interest result of which will have a fair market value (as determined by the Parties)Material Adverse Effect, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (xi) to proceed to Closing with a reduction in the Purchase Price reasonably determined by the Buyer to equal the fair value of the damage or taking (which amount may not exceed either the cost to replace or repair the property damaged or destroyed, or the value of the property condemned); or (ii) offer to extend the date for Closing to allow the Seller TXU the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, replace any such damaged or destroyed assetsAsset; or (yiii) accept the Acquired Company Equity InterestsAssets, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller TXU shall pay to the Buyer all property casualty insurance proceeds actually received sums paid to TXU by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty third parties (including insurance providers of the Seller TXU and its Affiliates Affiliates) by reason of the destruction, or taking of such assetsportion of the Assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships TXU prior to the Closing Date to repair, restore or replace such damaged or taken assetsAsset, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates TXU in and to any such unpaid awards or other payments from third parties (including insurance providers of TXU and its Affiliates) arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnershipstaking. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller TXU will collect such payments at the Buyer’s 's expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller TXU shall not compromise, settle or adjust any amounts payable by reason of any destruction, taking, or pending or threatened taking, as to such portion of the Assets as to which Buyer under has elected the option set forth in clause (yiii) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under TXU shall promptly notify Buyer of any destruction or taking of the type described in this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation5.9.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets or the Vessels are damaged damaged, lost or destroyed, or are condemned, forfeited or seized, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) or properties resulting in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the an aggregate Damage Amount of (i) 10% or less of the Purchase Pricethan $5,000,000, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amountDamage Amount, the Parties shall be obligated to proceed with the Closing, and the Seller Sellers shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, retain all property casualty insurance proceeds payable to the Seller or its Affiliates condemnation proceeds relating to such damage, destruction or condemnation, and or (ii) more than 10% of the Purchase Price$5,000,000, the Buyer shall not be obligated to consummate the Closingclose, provided that, in lieu of electing not to close, the Buyer may elect: either (xy) to offer to extend the date for Closing to allow the Seller Sellers the opportunity (in the Seller’s Sellers’ sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (yz) to accept the Acquired Company Equity InterestsAssets and Vessels, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller Sellers shall pay to the Buyer all property casualty insurance proceeds actually received in respect of such damage, destruction or condemnation by the Seller Sellers or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the any Seller and or its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller Sellers or any of its their Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller Sellers and its their Affiliates in and to any such unpaid awards or other payments arising out of the damage, destruction, takingcondemnation, or pending or threatened taking condemnation that are actually received by the Seller Sellers or any of its their Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller Sellers and its Affiliates and the Javelina Partnershipstheir Affiliates. If any such payments payable to the Buyer under required by this Section 5(e) to be paid to the Buyer are not assignable, the Seller Sellers will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller Sellers shall not compromise, settle or adjust any amounts payable to the Buyer under clause (yz) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) 20 business days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller Sellers describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.

Damage or Condemnation. All risk of loss resulting from any fire, flood or any other casualty before the Closing shall remain with Optionor. If, before the Closing, any part of the Acquired Company Purchased Assets are damaged or destroyed, or are condemnedshall be materially damaged, or if proceedings are filed for condemnation the Purchased Assets or under any material portion thereof shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results or condemnation, Optionor shall notify Pabst in damage, destruction or condemnation of property with writing in reasonable detail within five (A5) in the case Business Days of the Acquired Companies damage or taking, and, if Pabst has prior to its receipt of such notice delivered the Exercise Notice to Optionor, then Pabst may terminate this Agreement by written notice to Optionor given within ten (other than 10) Business Days after Pabst receives written notice from Optionor of the Javelina Partnershipsdamage or taking, in which event Escrow Agent shall deliver the Deposit to Pabst. If the Closing Date is within the aforesaid 10-Business Day period, then Closing shall be extended to the next Business Day following the end of said 10-Business Day period. If no such election to terminate is made, and in any event if the taking or damage is not material (as applicable), a fair market value (as determined by the Parties)this Agreement shall remain in full force and effect and, or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with upon the Closing, Optionor shall assign, transfer and the Seller shall retain, or set over to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, Pabst all of the right, title and interest of the Seller and its Affiliates Optionor in and to any awards that have been or that have or may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, and Optionor shall assign, transfer and set over to Pabst any insurance proceeds that may thereafter be made for such damage or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amountsdestruction, less any related expenses, amounts reasonably and actually expended by Optionor to collect any such insurance proceeds or to remedy any unsafe conditions at the Buyer as such are collected. Prior to the ClosingReal Property or, to the extent reasonably approved by Pabst (it has being understood that it would not be considered “reasonable” for Pabst not to approve any repair or restoration work that any Optionor is required by applicable law) SC1:4886116.33 to repair or restore any damage provided and the Legal RightPurchase Price allocated to the Property will be credited by the amount of the deductible applicable to such insurance payout to the extent not paid or satisfied as of the Closing. For the purposes of this paragraph, the Seller phrases “material damage”, “materially damaged”, “material portion”, and “material taking” shall mean, damage to, or one or more takings of, all or any portion of the Purchased Assets, (a) exceeding in the cost of repair and/or value of taken property $5,000,000 in the aggregate, (b) not compromisecovered by insurance, settle unless Optionor agrees to credit the Purchase Price for the repair cost of such uninsured casualty not expended by Optionor prior to Closing or adjust any amounts payable (c) adversely affecting access to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld Real Property or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationBrewery operations.

Damage or Condemnation. If, Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened before the Closing, and risk of loss to the Property due to fire, flood or any part of other cause before the Acquired Company Assets are damaged Closing, shall remain with Seller. If before the Closing the Property or destroyed, or are condemnedany portion thereof shall be “materially damaged,” (as hereinafter defined), or if proceedings are filed for the Property or any material portion thereof shall be subjected to a bona fide threat (pursuant to a written notice to Seller or its agent) of condemnation or under shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results in damageor condemnation, destruction or condemnation then Buyer may terminate this Agreement by written notice to Seller given within ten (10) days of property with (A) in the case Seller’s notice to Buyer of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case occurrence of the Javelina Partnershipsdamage or taking. In the event of such termination, the Javelina Percentage Interest Escrow Agent shall refund the Xxxxxxx Money to Buyer, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2.3, 6.5, and 10.2 of a fair market value (as determined this Agreement. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to the next business day following the end of said 10-day period. If no such election to terminate by the Parties)Buyer is made, and, in any event, if the aggregate of (i) 10% damage is not material, this Agreement shall remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain or less of condemnation, shall be effected with no further adjustment to the Purchase Price, and upon the Purchase Price shall be reduced by (x) in the case Closing of the Acquired Companies (other than the Javelina Partnerships) such amountthis purchase, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain(i) assign, or transfer and set over to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, or pending any insurance proceeds that may thereafter be made for such damage or destruction, (ii) give Buyer a credit at Closing for an amount equal to any condemnation awards or insurance proceeds collected by Seller as a result of any such condemnation or damage or destruction, and the amount of any insurance deductible under such policies (but in no event shall the amount of such credit to Buyer exceed the Purchase Price), and (iii) receive a credit at Closing for any sums expended by Seller toward the restoration or repair of the Property, which have been approved by Buyer (and, if applicable, approved by Buyer within the period provided under an applicable Lease for the landlord thereunder to act provided Seller notifies Buyer of same) such approval not to be unreasonably withheld, conditioned or delayed. In the event the amount of awards or proceeds subsequently received by Buyer under subsection (i) for any portion of the Property exceeds the Allocated Value attributable to such portion of the Property, then Buyer shall pay to Seller any such excess within ten (10) days after Buyer’s receipt of such awards or proceeds. For the purposes of this Section, the phrases “material damage”, “materially damaged” and “material portion” means (a) damage reasonably estimated by Seller and Buyer to exceed the greater of Three Hundred Thousand Dollars ($300,000) or five percent (5%) of the Allocated Value attributable to any individual Building to repair, (b) material access to any Building if no other commercially reasonable means of access is available, or a material portion of the parking for any Building is destroyed as a result of a casualty or is taken (or is threatened to be taken) under the power or threat of eminent domain, (c) any Major Tenant has the right to terminate its respective Lease as a result of a casualty or a temporary or permanent taking (or threatened taking taking) under the power or threat of eminent domain and has not waived such right prior to Closing or (d) other than the deductible, any damage to the Property which is uninsured that are actually received would customarily be insured, and not either paid for by the Seller or any of its Affiliates and that are not required credited to be paid by any of them as a reimbursement to any property casualty insurance providers Buyer at Closing. The provisions of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under sixth (6th) sentence of this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to 4.5 shall survive indefinitely the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent close of escrow and recordation of the BuyerDeed, which consent and shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur deemed merged into any of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationClosing documents.

Damage or Condemnation. If, If before the Closing the Property or any portion thereof shall be materially damaged and Seller cannot repair or restore the Property prior to the Closing, any part or the commencement of condemnation proceedings shall affect all or a material portion of the Acquired Company Assets are damaged Property, then Buyer may terminate this Agreement by written notice to Seller given within 10 days of Seller’s notice of the occurrence of the damage or destroyedtaking. In the event of such termination, the Escrow Agent shall refund the Xxxxxxx Money to Buyer, and neither party shall have any further rights or are condemnedliabilities hereunder except as provided in Sections 2.2, 2.3 and 10.2 of this Agreement. For the purposes of this Section, the phrases “material damage” and “materially damaged” means (i) the estimated repair cost is greater than $5,000,000.00, (ii) such damage or destruction will entitle Tenant to terminate the Lease or xxxxx its rent in whole or in part and such abated rent is not entirely replaced with the proceeds of a rent interruption or similar policy held by Seller or Buyer, (iii) the damage or destruction is not covered by Seller’s insurance or if proceedings are filed such insurance is not for condemnation or under full replacement cost and Seller is not willing to provide a credit against the right of eminent domain that results in damage, destruction or condemnation of property with (A) in Purchase Price for the case uncovered portion of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties)loss, or (Biv) in Buyer’s lender shall refuse to consummate the case of the Javelina Partnershipsloan to Buyer, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated despite Buyer’s good faith efforts to proceed with the Closingloan, as a result of such damage or destruction. For the purposes of this Section, condemnation proceedings shall be deemed to affect a material portion of the Property if (i) the condemnation proceedings eliminate any driveway or access points for the Property for which a replacement driveway or access point is unavailable, or which results in a taking of a portion of the building greater than 5% or a taking of the parking areas of the Property below legal requirements or requirements in the Lease, (ii) such condemnation proceedings will entitle Tenant to terminate the Lease or xxxxx its rent in whole or in part and such abated rent is not entirely replaced with the proceeds of a rent interruption or similar policy held by Seller or Buyer, or (iii) Buyer’s lender shall refuse to consummate the loan to Buyer, despite Buyer’s good faith efforts to proceed with the loan, as a result of such condemnation proceedings. Buyer acknowledges that the Property shall be subject to certain right of way easements pertaining to that certain land to be dedicated for the new right of way located on the eastern and southern boundaries of the Property as depicted on Exhibit A-1 attached hereto and incorporated herein by this reference, which shall not be deemed a material portion of the Property for purposes of this Section. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to the next business day following the end of said 10-day period. If no such election is made, and in any event if the Seller damage is not material, this Agreement shall retainremain in full force and effect and the purchase contemplated herein, or to the extent received less any interest taken by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction eminent domain or condemnation, shall be effected with no further adjustment, and (ii) more than 10% upon the Closing of the Purchase Pricethis purchase, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay (i) assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, or pending any insurance proceeds that may thereafter be made for such damage or threatened taking that are actually destruction, (ii) give Buyer a credit at Closing for an amount equal to any condemnation awards or insurance proceeds collected by Seller as a result of any such condemnation or damage or destruction, and the amount of any insurance deductible under such policies (but in no event shall the amount of such credit to Buyer exceed the Purchase Price), and (iii) receive a credit at Closing for any sums expended by Seller toward the restoration or repair of the Property. In the event the amount of awards or proceeds subsequently received by the Seller Buyer for purposes of restoration or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers repair of the Property exceeds the Purchase Price, then Buyer shall pay to Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under excess within 10 days after Buyer’s receipt of such awards or proceeds. The provisions of this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to 4.4 shall survive indefinitely the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent close of escrow and recordation of the BuyerDeed, which consent and shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur deemed merged into any of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationClosing documents.

Damage or Condemnation. Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened against the Real Property before the Close of Escrow, and risk of loss to the Real Property due to fire, flood or any other cause before the Close of Escrow, shall remain with Seller. If, before Closing, any part after Buyer’s exercise of the Acquired Company Assets are damaged Option in accordance with the terms of Section 1.2 hereof and before the Close of Escrow the Real Property or destroyed, or are condemnedany portion thereof shall be materially damaged, or if proceedings are filed for the Real Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or under shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results in damage, destruction or condemnation (collectively, an “Event”), then Buyer may elect not to acquire the Real Property by delivering written notice of property with such election to Seller within five (A5) in the case days after Buyer learns of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), damage or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties)taking, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price which event Buyer shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall no longer be obligated to proceed purchase, and Seller shall no longer be obligated to sell, the Real Property and the Deposit (once made) (but not the Option Payment) shall be returned to Buyer. If the Closing Date is within the aforesaid 5-day period, then the Close of Escrow shall be extended to the next business day following the end of said 5-day period. If no such election is made or if the Event occurs during the pendency of this Agreement but prior to Buyer’s exercise of the Option in accordance with the Closingterms of Section 1.2 hereof and Buyer subsequently exercises the Option in accordance with the terms of Section 1.2 hereof, and in any event if the Seller damage is not material, this Agreement shall retain, or to the extent received by any Acquired Company or the Buyer following the Closingremain in full force and effect, the Buyer or such Acquired Company shall pay to the Sellerpurchase contemplated herein, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and (ii) more than 10% upon the Close of the Purchase PriceEscrow, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may thereafter be made for such damage or other payments arising out destruction giving Buyer a credit at the Close of Escrow for any deductible under such policies. For purposes of this Section 5.4, the phrase(s) (i) “Material damage” or “Materially damaged” means damage reasonably exceeding ten percent of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers Purchase Price of the Seller Real Property, and its Affiliates and the Javelina Partnerships. If (ii) “material portion” means any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent portion of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(eReal Property that has a “fair market value” exceeding ten percent (10%) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or Purchase Price of the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationReal Property.

Damage or Condemnation. IfIf before the Closing the Property or any portion thereof shall be materially damaged, before Closing, any part or the commencement of condemnation proceedings shall affect all or a material portion of the Acquired Company Assets are damaged Property, then Buyer may terminate this Agreement by written notice to Seller given within 10 days of Seller’s notice of the occurrence of the damage or destroyed, taking. In the case of any damage to the Property or are condemnedany portion thereof, or if proceedings are filed for a condemnation proceeding is commenced affecting the Property or under any portion thereof, Seller shall give to Buyer prompt written notice thereof. In the right event of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnershipssuch termination, the Javelina Percentage Interest Escrow Agent shall refund the Xxxxxxx Money to Buyer, and neither party shall have any further rights or liabilities hereunder except as provided in Sections 2.2, 2.3 and 10.2 of a fair market value (as determined by this Agreement. For the Parties), in the aggregate purposes of (i) 10% or less of the Purchase Pricethis Section, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, phrases “material damage” and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10“materially damaged” means damage reasonably exceeding 5% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) Price to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to restore. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to repair, restore or replace the next business day following the end of said 10-day period. If no such damaged or taken assetselection to terminate is made, and in any event if the damage is not material, this Agreement shall assign remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, provided that upon the Closing of this purchase, Seller shall (i) assign, transfer and set over to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards or other payments arising out of the destruction, taking, or pending any insurance proceeds that may thereafter be made for such damage or threatened taking that are actually received destruction and (ii) give Buyer a credit at Closing for an amount equal to any condemnation awards or insurance proceeds collected by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement result of any such condemnation or damage or destruction, and the amount of any insurance deductible under such policies (but in no event shall the amount of such credit to Buyer exceed the Purchase Price), and (iii) receive a credit at Closing for any property casualty insurance providers sums expended by Seller toward the restoration or repair of the Seller and its Affiliates and the Javelina PartnershipsProperty. If any such payments payable to the Buyer under The provisions of this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to 4.4 shall survive indefinitely the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent close of escrow and recordation of the BuyerDeed, which consent and shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur deemed merged into any of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationClosing documents.

Damage or Condemnation. If, Risk of any loss resulting from any condemnation or eminent domain proceeding which is commenced before the Closing, and risk of material loss to the Property due to fire, flood or any part of other cause before the Acquired Company Assets are Closing, shall remain with City. If before the Closing, the Property or any portion thereof shall be materially damaged or destroyed, or are condemnedif the Property or any material portion thereof shall become the subject of any proceedings, judicial, administrative, or if proceedings are filed for condemnation or under otherwise, with respect to the right of taking by eminent domain that results in damageor condemnation, destruction then Purchaser may terminate this Agreement by written notice to City given within ten (10) Business Days after Purchaser’s receipt of written notice of the damage or condemnation taking, and, subject to the provisions of property with Section 14.5 of this Agreement, all further rights and obligations of the parties under this Agreement shall terminate and the Purchaser shall promptly receive a refund of the Xxxxxxx Money. If the Closing Date is within the aforesaid ten (A10) Business Day period, then Closing shall be extended to the next Business Day following the end of said ten (10) Business Day period. If no such election is made by Purchaser, or in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest event of a fair market value (as determined casualty that is not material in nature, this Agreement shall remain in full force and effect and the purchase contemplated herein, less any interest taken by the Parties)eminent domain or condemnation, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amounteffected with no further adjustment, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with and upon the Closing, City shall assign, transfer and the Seller shall retain, or set over to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, Purchaser all of the right, title and interest of the Seller and its Affiliates City in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and City shall assign, transfer and set over to Purchaser any insurance proceeds that may have been or other payments arising thereafter may be made for such damage or destruction except for City’s out of pocket cost for pursuing the destructioninsurance claim, takingif any, giving Purchaser a credit at Closing for any deductible under such policies, and City shall provide its insurance company with written notice that City has assigned such proceeds to Purchaser pursuant to this Section 7.3 and cause said insurance company to acknowledge such assignment. For the purposes of this Section, the phrases “material damage” and “materially damaged” mean damage or pending impacts either (a) exceeding $250,000.00 as reasonably determined by City and Purchaser acting in good faith or threatened taking that are actually received by (b) which causes access to or egress from the Seller Property or any of its Affiliates and that are not required parking at the Property to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationmaterially impaired.

Damage or Condemnation. IfBuyers shall assume all risk of loss with respect to, before and any change in the condition of, the Wattenberg System from the date hereof until Closing, . If prior to the Closing any part of the Acquired Company Assets are Wattenberg System shall be damaged or destroyed, destroyed by fire or are condemned, other casualty or if proceedings are filed for any part of the Wattenberg System shall be taken in condemnation or under the right of eminent domain that results in damage("CASUALTY LOSS"), destruction such event shall not excuse Buyers from any of their obligations under this Agreement or condemnation of property with (A) in give rise to any right to terminate this Agreement, and subject to the case terms of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the SellerMaster Equipment Lease, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damageproceeds, destruction or condemnationcondemnation proceeds, Claims, awards and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of such Casualty Loss ("Casualty Proceeds") shall be paid to or retained by Sellers. If Buyers repair or replace the destructiondamaged, takingdestroyed or condemned property to a condition at least as good as its condition immediately prior to such Casualty Loss, at the request of Buyers, Sellers with the consent and approval of Master Equipment Lessor, shall apply any such Casualty Proceeds held by Sellers to reimburse Buyers for the cost of such repair or pending replacement and shall cooperate with Buyers in requesting that Master Equipment Lessor apply any such Casualty Proceeds held by it to such reimbursement of Buyers. If Buyers do not repair or threatened taking that are actually replace the damaged, destroyed or condemned property to a condition at least as good as its condition immediately prior to such Casualty Loss, the Casualty Proceeds received by Sellers shall be applied as follows: (i) first, to reduce the Seller Base Cash Consideration; (ii) then, to reduce the Facility Fees in the reverse order that they are payable; (iii) then, to reduce the Gathering Interim Gross Margin payable to KNGG under the Gathering System Operating Services Agreement and (iv) then, to reduce the Transmission Interim Margin payable to KNWTLLC under the Transmission System Operating Services Agreement. If Buyers repair or any replace the damaged, destroyed or condemned property to its condition immediately prior to such Casualty Loss, and the total amount of its Affiliates and that are not required Casualty Proceeds exceed the costs to repair or replace the damaged, destroyed or condemned property, the excess Casualty Proceeds shall be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina PartnershipsBuyers. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller Sellers or KNWTLLC shall not voluntarily compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, by reason of a Casualty Loss without first obtaining the written consent of the BuyerBuyers, which consent shall not be unreasonably withheld withheld, conditioned or delayed. The Buyer’s election under this Section 5(e) If any Casualty Loss is caused by the negligence, willful misconduct or gross negligence of Sellers or KNWTLLC and the cost to repair or replace the damaged or destroyed property to a condition at least as good as its condition immediately preceding such Casualty Loss exceeds the Casualty Proceeds received in connection therewith (such excess being the "Uninsured Cost"), the Base Cash Consideration shall expire twenty (20) days after be reduced by the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware percentage of such damageUninsured Cost that equals the percentage that the negligence, destruction willful misconduct or proposed condemnationgross negligence of Sellers or KNWTLLC that contributed to the cause of such Casualty Loss bears to all causes that contributed thereto.

Damage or Condemnation. IfRisk of loss resulting from any condemnation or eminent domain proceeding, which is commenced or has been threatened against the Real Property before Closingthe Close of Escrow, and risk of loss to the Real Property due to fire, flood or any part other cause before the Close of Escrow, shall remain with Seller. If before the Acquired Company Assets are damaged Close of Escrow the Real Property or destroyed, or are condemnedany portion thereof shall be materially damaged, or if proceedings are filed for the Real Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or under shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results in damageor condemnation, destruction or condemnation then Buyer may elect not to acquire the Property by delivering written notice of property with such election to Seller within five (A5) in the case days after Buyer learns of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), damage or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties)taking, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price which event Buyer shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall no longer be obligated to proceed with the Closingpurchase, and the Seller shall retainno longer be obligated to sell, sign, transfer or convey the Property, the Deposit shall be immediately refunded to Buyer, Buyer shall immediately return all Property Information to Seller and, except for those provisions of this Agreement which expressly survive the termination of this Agreement, the parties hereto shall have no further obligations hereunder. If the Closing Date is within the aforesaid 5-day period, then the Close of Escrow shall be extended to the extent received by any Acquired Company or the Buyer next business day following the Closingend of said 5-day period. If no such election is made, and in any event if the damage is not material, this Agreement shall remain in full force and effect, the Buyer or such Acquired Company shall pay to the Sellerassignment and purchase contemplated herein, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and (ii) more than 10% upon the Close of the Purchase PriceEscrow, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may thereafter be made for such damage or other payments arising out destruction, giving Buyer a credit at the Close of Escrow for any deductible under such policies. For purposes of this Section 5.4, the phrase(s) (i) "MATERIAL DAMAGE" or "MATERIALLY DAMAGED" means damage reasonably exceeding ten percent of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers Purchase Price of the Seller Real Property, and its Affiliates and the Javelina Partnerships. If (ii) "MATERIAL PORTION" means any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent portion of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur Real Property that has a "fair market value" exceeding 10% of the date this Agreement terminates or Purchase Price of the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationReal Property.

Damage or Condemnation. IfSubject to the lease terms of each of the respective Branches, before if prior to Closing, any part of the Acquired Company Assets are damaged or Branches is damaged, destroyed, or are condemnedcondemned (or threatened with condemnation), or if proceedings are filed for but not materially so, Purchaser shall, without reduction in the Purchase Price, acquire the Branches in accordance with the terms of this Agreement, and Seller shall pay to Purchaser all casualty insurance and condemnation or under the right proceeds which have been paid (and assign to Purchaser any rights which Seller then has with respect to any casualty insurance and condemnation proceeds which may thereafter be paid) to Seller by reason of eminent domain that results in such damage, destruction or condemnation of property with (A) in condemnation. If, prior to the case Closing, any of the Acquired Companies Branches is materially damaged, destroyed, or condemned (other than the Javelina Partnershipsor threatened with condemnation), a fair market value (as determined by the Parties)then Purchaser shall, or (B) without reduction in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, acquire the Purchase Price shall be reduced by (x) Branches in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed accordance with the Closingterms of this Agreement, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, Purchaser all property casualty insurance and condemnation proceeds payable which have been paid (and assign to the Purchaser any rights which Seller or its Affiliates relating then has with respect to any casualty insurance and condemnation proceeds which may thereafter be paid) to Seller by reason of such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay use its best efforts to promptly assist the Purchaser in restoring branch services, and, where necessary and appropriate, providing commercially reasonable alternative premises such as a temporary branch structure. Such assistance shall be appropriate to the Buyer all property casualty insurance proceeds actually received by circumstances, taking into account the Seller or any amount of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of time remaining between when the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationcondemnation occurs and the Closing. The term "materially" as used in this Section 6.12 means to such an extent that the Branch so affected by such damage, destruction, or condemnation cannot continue to provide banking services to its customers or conduct the business of a branch banking office.

Damage or Condemnation. If, before Closing, (a) In the event of any damage to or destruction of the Improvements and the Equipment or any part thereof as a result of any casualty ("Damage"), or in the event the Site, the Improvements and the Equipment, or any part thereof are taken or damaged as the result of the Acquired Company Assets are damaged or destroyedexercise of the power of eminent domain, or are condemnedas the result of any other governmental action for which compensation shall be given by any governmental authority ("Condemnation"), or if proceedings Mortgagor shall receive any notice or advice of any Condemnation proceedings, Mortgagor shall give prompt notice thereof to Mortgagee. Mortgagor shall, in the event of any Damage or Condemnation and whether or not the proceeds of insurance or any awards or other compensation payable as a result of such Condemnation are filed sufficient for condemnation the purpose, promptly restore or under cause to be restored the right of eminent domain that results in damageImprovements and the Equipment so damaged, destruction or condemnation of property with (A) in the case of a Condemnation, if such Condemnation is not of such nature as to preclude the Acquired Companies (other than restoration of the Javelina Partnerships)portion thereof not so taken to a viable economic unit, restore the portion thereof not so taken, in a fair market good and workmanlike manner as nearly as possible to the value (as determined by the Parties)and condition thereof immediately prior to such Damage, or (B) in the case of a Condemnation, to a viable economic unit; provided, however, that if the Javelina Partnerships, the Javelina Percentage Interest of Project Mortgage shall have been paid and --------- ------- discharged in full and a fair market value (as determined by the Parties), partial Damage or Condemnation shall occur which results in the aggregate reduction of Contract Output to not less than kilowatthours per year, Mortgagor shall not be so obligated to restore the Improvements and the Equipment so damaged or the portion thereof not so taken, unless (i) 10% the proceeds of insurance or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (any awards or other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest compensation payable as a result of such amount, Condemnation are sufficient for the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, purpose or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase PriceMortgagor shall have elected, the Buyer shall not be obligated by notice given to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) Mortgagee within 90 days after the earlier occurrence of such Damage Or receipt of notice to occur such Condemnation, to so restore the same; and provided, further, that if such Damage or Condemnation occurs during the --------- ------- last two years of the date this Agreement terminates or stated term of the date on which Agreement, Mortgagor shall have no obligation to so restore the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationsame.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), an Allocated Value in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the ClosingClose, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s 's sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina PartnershipsAffiliates. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s 's expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s 's election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.

Damage or Condemnation. If, Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened before the Closing, and risk of loss to the Property due to fire, flood or any part of other cause before the Acquired Company Assets are Closing, shall remain with Seller. If before the Closing the Property shall be damaged or destroyed, or are condemnedand the cost to repair such damage would exceed $100,000 (the “Threshold Amount”), or if proceedings are filed for the Property or any portion thereof shall be subjected to a bona fide threat of condemnation or under shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain or condemnation, then Purchaser shall have the right of eminent domain that results in damage, destruction to terminate this Agreement upon written notice to Seller delivered on or condemnation of property with (A) in prior to the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties)Closing Date, in which event the aggregate of (i) 10% or less of Xxxxxxx Money shall be promptly returned to Purchaser. If Purchaser does not elect to terminate this Agreement in accordance with the foregoing, this Agreement shall remain in full force and effect and Purchaser shall pay the Purchase PricePrice at the Closing on the Closing Date without reduction, except that if the Property has been damaged and the cost to repair exceeds $100,000, then the Purchase Price shall be reduced by the lesser of (xi) in the case amount of the Acquired Companies (other than the Javelina Partnerships) such amountany uninsured loss, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by including any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the deductible under Seller, all property casualty ’s insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnationpolicy, and (ii) more than 10% of the Purchase PriceThreshold Amount. In such event, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, Purchaser all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Purchaser any insurance proceeds that may thereafter be available for such damage or other payments arising out destruction. Seller agrees to cooperate with Purchaser after the Closing in collecting on Seller’s insurance policy, provided that Seller incurs no cost in connection therewith, which obligation shall survive the Closing. Seller and Purchaser each expressly waive the provisions of California Civil Code Section 1662 and hereby agree that the provisions of this Paragraph 4.6 shall govern the parties’ rights and obligations in the event of any damage or destruction to the Property or the taking of all or any part of the destructionProperty, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationapplicable.

Damage or Condemnation. IfRisk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened against the Real Property before the Close of Escrow, and risk of loss to the Real Property due to fire, flood or any other cause before Closingthe Close of Escrow, shall remain with Seller. If before the Close of Escrow the Real Property or any part of the Acquired Company Assets are damaged or destroyed, or are condemnedportion thereof shall be materially damaged, or if proceedings are filed for the Real Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or under shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results in damageor condemnation, destruction or condemnation then Buyer may elect not to acquire the Real Property by delivering written notice of property with such election to Seller within five (A5) in the case days after Buyer learns of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), damage or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties)taking, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price which event Buyer shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall no longer be obligated to proceed with the Closingpurchase, and the Seller shall retainno longer be obligated to sell, or the Real Property. If the Closing Date is within the aforesaid 5day period, then the Close of Escrow shall be extended to the extent received by any Acquired Company or the Buyer next business day following the Closingend of said 5day period. If no such election is made, and in any event if the damage is not material, this Agreement shall remain in full force and effect, the Buyer or such Acquired Company shall pay to the Sellerpurchase contemplated herein, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and (ii) more than 10% upon the Close of the Purchase PriceEscrow, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay assign, transfer and set over to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may thereafter be made for such damage or other payments arising out destruction giving Buyer a credit at the Close of Escrow for any deductible under such policies. For purposes of this Section 5.4, the phrase(s) (i) “Material damage” or “Materially damaged” means (a) damage reasonably exceeding five percent (5%) of the destruction, takingPurchase Price of the Real Property, or pending or threatened taking that are actually received by (b) any damage which is not fully insured (which shall include lost rents) and for which Buyer will not receive, at Seller’s election, a credit in the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers amount of the Seller uninsured portion of such damage upon the Close of Escrow, and its Affiliates and the Javelina Partnerships. If (ii) “material portion” means any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent portion of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(eReal Property that has a “fair market value” exceeding one percent (1%) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or Purchase Price of the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationReal Property.

Damage or Condemnation. IfUpon an occurrence of a casualty, before and upon an occurrence of, or commencement of proceedings regarding, any condemnation or taking, Seller shall notify Buyer in writing of same. Until Closing, the risk of loss or damage to the Property, except as otherwise expressly provided herein, shall be borne by Seller. In the event all or any part portion of the Acquired Company Assets Property is damaged in any casualty or any proceedings regarding taking or condemnation are damaged instituted, so that: (a) Tenant has or destroyed, will have a right of termination or are condemned, or if proceedings are filed for condemnation or abatement of rent under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties)Lease, or (Bb) in Buyer as landlord would be required by the case terms of the Javelina PartnershipsLease to repair or restore the Premises (or make the same a functioning whole following any condemnation, or the like, (c) with respect to any casualty, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) cost to repair such amount, casualty would exceed $150,000.00 or (yd) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated with respect to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction taking or condemnation, and (ii) more than 10% any Improvements or access to the Property or any other material portion of the Purchase PriceProperty is (or will be) condemned or taken, then, Buyer may elect to terminate this Agreement by providing written notice of such termination to Seller within ten (10) business days after Buyer’s receipt of notice of such condemnation, taking or damage (or commencement of proceedings regarding same), upon which termination the Deposit shall be returned to the Buyer and neither party hereto shall not be obligated have any further rights, obligations or liabilities under this Agreement, except as otherwise expressly set forth herein. With respect to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair any condemnation or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without of commencement of proceedings regarding same) or a casualty, if Buyer does not elect to cancel this Agreement as aforesaid, there shall be no reduction of the Purchase Price therefor)and Seller shall assign to Buyer at the Closing the rights of Seller to the awards, in which case if any, for the condemnation or taking, and Buyer shall be entitled to receive and keep all such awards. With respect to a casualty, if Buyer does not elect to terminate this Agreement or does not have the right to terminate this Agreement as aforesaid, there shall be no abatement of the Purchase Price and at Closing the Seller shall assign to Buyer at the Closing the rights of Seller to the proceeds under Seller’s insurance policies covering such Property with respect to such damage or destruction (and/or pay to the Buyer all property casualty insurance any such proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to Closing) and pay to Buyer the Closing Date to repair, restore or replace such damaged or taken assetsamount of any deductible with respect thereto, and Buyer shall assign be entitled to receive and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to keep any monies received from such unpaid awards or other payments arising out of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnationpolicies.

Damage or Condemnation. If, before Closing, Risk of loss resulting from any part of the Acquired Company Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction proceeding which is commenced or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with has been threatened before the Closing, and the Seller shall retain, or risk of loss to the extent received by Property due to fire, flood or any Acquired Company or the Buyer following other cause before the Closing, shall remain with Seller. If before the Buyer Closing the Property or such Acquired Company any portion thereof shall pay be materially damaged, or if the Property or any material portion thereof shall be subjected to a bona fide threat of condemnation or shall become the subject of any proceedings, judicial, administrative or otherwise, with respect to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction taking by eminent domain or condemnation, and then Buyer may terminate this Agreement by written notice to Seller given within five (ii5) more than 10% days after Buyer receives written notice from Seller of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair damage or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case event the Seller Xxxxxxx Money shall pay be promptly returned to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to Buyer. If the Closing Date is within the aforesaid 5-day period, then Closing shall be extended to repair, restore or replace the next business day following the end of said five (5)-day period. If no such damaged or taken assetselection is made, and in any event if the damage is not material, this Agreement shall assign remain in full force and effect and the purchase contemplated hereby, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Closing of this purchase, Seller shall assign, transfer and set over to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates (if any) in and to any awards that have been or that may thereafter be made for such unpaid taking, and Seller shall assign, transfer and set over to Buyer any interest of Seller (if any) in any insurance proceeds that may thereafter be made for such damage or destruction giving Buyer a credit at Closing for any deductible under such policies, it being acknowledged and agreed that such separate assignments will not be required if Property Owner (as distinguished from Seller) shall have rights to such awards or other payments arising out proceeds. Any insurance proceeds received by Seller after the Closing and assigned to Buyer hereunder shall be promptly paid to Buyer upon receipt and until so paid, shall be held in trust by Seller for the benefit of Buyer. For the purposes of this paragraph, the phrases “material damage” and “materially damaged” means damage reasonably estimated by Seller in good faith (such estimate, the “Seller Assessment”) to have a cost exceeding three percent (3%) of the destruction, taking, or pending or threatened taking that are actually received by Purchase Price. If Buyer disagrees with the Seller Assessment and the parties are unable to agree on the cost of repair or any restoration within five (5) business days after delivery of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of notice containing the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignableAssessment, the Seller will collect such payments at Closing Date shall automatically be extended until the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause earlier of (yi) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty thirty (2030) days after such damage or condemnation, and (ii) such time as the earlier parties are able to occur agree on the cost of the date this Agreement terminates repair or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.restoration as follows:

Damage or Condemnation. IfRisk of loss shall remain with Seller. If prior to the Close of Escrow, before Closing, any part of the Acquired Company Assets are damaged or destroyed, or are condemnedReal Property shall be Materially Damaged (defined below), or if proceedings are filed for any Material Portion (defined below) of the Real Property shall be subjected to a bona fide written threat of condemnation or under shall become the right subject of any proceedings, judicial, administrative or otherwise, with respect to the taking by eminent domain that results in damage, destruction or condemnation by a governmental authority (a “Material Taking”), then Seller shall promptly notify Buyer in writing that such Material Damage or Material Taking has occurred after Seller obtains actual knowledge of property with such occurrence, and Buyer may elect not to acquire the Real Property by delivering written notice of such election to Seller within five (A5) in the case days after Buyer learns of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), Material Damage or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties)Material Taking, in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price which event Buyer shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall no longer be obligated to proceed with purchase, and Seller shall no longer be obligated to sell, the ClosingReal Property and this Agreement shall terminate. If the Closing Date is within the aforesaid 5‑day period, then Buyer shall have the right to elect in writing to extend the Close of Escrow to no later than the next business day following the end of said 5‑day period so that Buyer may receive the benefit of such 5-day period (or so much so as Buyer may elect). If no such election is made, and in any event if the damage does not constitute Material Damage, or an eminent domain or condemnation proceeding or bona fide written threat does not affect a Material Portion of the Real Property, then this Agreement shall remain in full force and effect, and the Seller purchase contemplated herein (less any interest taken by eminent domain or condemnation) shall retain, or be consummated pursuant to the extent received terms of this Agreement (after deducting all reasonable costs incurred by any Acquired Company Seller in defending such eminent domain or the Buyer following the Closing, the Buyer or such Acquired Company shall pay to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller shall pay to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships condemnation proceeding prior to the Closing Date Close of Escrow); provided, however, that Buyer shall be entitled to repair, restore receive any condemnation award or replace such damaged or taken assetspayment, and upon the Close of Escrow, Seller shall assign assign, transfer and transfer set over to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may thereafter be made for such damage or other payments arising out destruction giving Buyer a credit at the Close of Escrow for any deductible under such policies. For purposes of this Section 5.4, the phrase(s) (i) “Material Damage” or “Materially Damaged” means damage reasonably exceeding ten percent (10%) of the destruction, taking, or pending or threatened taking that are actually received by the Seller or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.Purchase Price as

Damage or Condemnation. IfRisk of loss resulting from any fire, flood or any other casualty before Closing, any part of the Acquired Company Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the aggregate of (i) 10% or less of the Purchase Price, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amount, the Parties shall be obligated to proceed with the Closing, and the Seller shall retain, or to the extent received by any Acquired Company or the Buyer following remain with Seller. If before the Closing, the Buyer Property shall be materially damaged, or such Acquired Company if the Property or any material portion thereof shall pay become the subject of any proceedings, judicial, administrative or otherwise, with respect to the Seller, all property casualty insurance proceeds payable to the Seller or its Affiliates relating to such damage, destruction taking by eminent domain or condemnation, and (ii) more than 10% then Purchaser may terminate this Agreement by written notice to Seller given within 10 days after Purchaser learns of the Purchase Price, the Buyer shall not be obligated to consummate the Closing, provided that, in lieu of electing not to close, the Buyer may elect: (x) to offer to extend the date for Closing to allow the Seller the opportunity (in the Seller’s sole discretion) to repair damage or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (y) accept the Acquired Company Equity Interests, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case event the Seller Xxxxxxx Money shall pay be returned to the Buyer all property casualty insurance proceeds actually received by the Seller or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the Seller or any of its Affiliates or the Javelina Partnerships prior to Purchaser. If the Closing Date is within the aforesaid 10-day period, then Closing shall be extended to repair, restore or replace the next business day following the end of said 10-day period. If no such damaged or taken assetselection is made, and in any event if the damage is not material, this Agreement shall assign remain in full force and effect and the purchase contemplated herein, less any interest taken by eminent domain or condemnation, shall be effected with no further adjustment, and upon the Closing of this purchase, Seller shall assign, transfer and set over to the Buyer, or subrogate the Buyer to, Purchaser all of the right, title and interest of the Seller and its Affiliates in and to any awards that have been or that may thereafter be made for such unpaid awards taking, and Seller shall assign, transfer and set over to Purchaser any insurance proceeds that may thereafter be made for such damage or other payments arising out destruction and Seller shall, at its election, either pay, or credit to Purchaser at Closing, the amount of any deductible or coinsured amount under said insurance policies. For the purposes of this paragraph, the phrases “material damage” and “materially damaged” means damage (a) reasonably exceeding $2,500,000 to repair, (b) materially and adversely changing the orientation of any residential buildings comprising the Project, (c) adversely affecting the availability of parking for the Project such that the Project can not be made to comply with applicable law in a manner generally consistent with the existing aesthetic design of the destructionProperty, taking, (d) eliminating legal access to the Project permanently or pending or threatened taking that are actually received by (e) causing any building comprising the Seller or any of its Affiliates and that are not required Property to be paid by any of them as considered a reimbursement to any property casualty insurance providers of non-conforming use that prohibits the Seller and its Affiliates and the Javelina Partnerships. If any such payments payable to the Buyer under this Section 5(e) are not assignable, the Seller will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller shall not compromise, settle or adjust any amounts payable to the Buyer under clause (y) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty (20) days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller describing in reasonable detail the nature and amount becomes aware reconstruction of such damage, destruction or proposed condemnationbuilding.

Damage or Condemnation. If, before Closing, any part of the Acquired Company Subject Assets are damaged or destroyed, or are condemned, or if proceedings are filed for condemnation or under the right of eminent domain that results in damage, destruction or condemnation of property with (A) resulting in the case of the Acquired Companies (other than the Javelina Partnerships), a fair market value (as determined by the Parties), or (B) in the case of the Javelina Partnerships, the Javelina Percentage Interest of a fair market value (as determined by the Parties), in the an aggregate Damage Amount of (i) 10% or less of the Purchase Pricethan $56,000,000, the Purchase Price shall be reduced by (x) in the case of the Acquired Companies (other than the Javelina Partnerships) such amount, or (y) in the case of the Javelina Partnerships, the Javelina Percentage Interest of such amountDamage Amount, the Parties shall be obligated to proceed with the Closing, and the Seller Sellers shall retain, retain (or to the extent received by Buyer or any Acquired Company or the Buyer of its Affiliates following the Closing, the Buyer or such Acquired Company Affiliate, shall pay to the SellerSellers), all property casualty insurance proceeds payable to the Seller or its Affiliates condemnation proceeds relating to such damage, destruction or condemnation, and (ii) more than 10% of the Purchase Price$56,000,000, the Buyer shall not be obligated to consummate the ClosingClose, provided that, in lieu of electing not to close, the Buyer may elect: either (xy) to offer to extend the date for Closing to allow the Seller Sellers the opportunity (in the Seller’s Sellers’ sole discretion) to repair or replace, or to cause the repair or replacement of, any such damaged or destroyed assets; or (yz) to accept the Acquired Company Equity InterestsSubject Assets, notwithstanding any such destruction, taking, or pending or threatened taking (without reduction of the Purchase Price therefor), in which case the Seller Sellers shall pay to the Buyer all property casualty insurance proceeds actually received in respect of such damage, destruction or condemnation by the Seller Sellers or any of its Affiliates that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller and any Sellers or its Affiliates by reason of the destruction, or taking of such assets, to the extent such sums are not committed, used or applied by the such Seller or any of its Affiliates or the Javelina Partnerships prior to the Closing Date to repair, restore or replace such damaged or taken assets, and shall assign and transfer to the Buyer, or subrogate the Buyer to, all of the right, title and interest of the Seller Sellers and its their Affiliates in and to any such unpaid awards or other payments arising out of the damage, destruction, takingcondemnation, or pending or threatened taking condemnation that are actually received by the Seller Sellers or any of its Affiliates and that are not required to be paid by any of them as a reimbursement to any property casualty insurance providers of the Seller Sellers and its Affiliates and the Javelina PartnershipsAffiliates. If any such payments payable to the Buyer under required by this Section 5(e) to be paid to the Buyer are not assignable, the Seller Sellers will collect such payments at the Buyer’s expense and remit all such amounts, less any related expenses, to the Buyer as such are collected. Prior to the Closing, to the extent it has the Legal Right, the Seller Sellers shall not compromise, settle or adjust any amounts payable to the Buyer under clause (yz) above, without first obtaining the written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. The Buyer’s election under this Section 5(e) shall expire twenty ten (2010) business days after the earlier to occur of the date this Agreement terminates or the date on which the Buyer receives written notice from the Seller Sellers describing in reasonable detail the nature and amount becomes aware of such damage, destruction or proposed condemnation.