Common use of Damage or Destruction Condemnation Clause in Contracts

Damage or Destruction Condemnation. In the event that, after the date hereof but prior to the Closing Date, either any portion of the Property is taken pursuant to eminent domain proceedings or any of the improvements on the Property are damaged or destroyed by any casualty, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost of repair of damage to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere with the operations of the Property, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereunder.

Damage or Destruction Condemnation. (a) In the event thatthe Assigned Space or the improvements thereon are damaged by any casualty which is required to be insured against by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date hereof but prior of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the Closing Dateother within sixty (60) days after the date of occurrence of such damage, either any portion to terminate this Permit as of the Property is taken date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to eminent domain proceedings or any of this Permit shall be paid to Port. (c) If the improvements on the Property are Assigned Space is damaged or destroyed by any casualty, Seller Permittee shall have no obligation to repair or replace claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Seller shallPort and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, upon consummation and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the transaction herein providedAssigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, assign then, in such event, on the earlier of the date title to Buyer all claims the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of Seller respecting the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any condemnation compensation or casualty insurance coveragedamages for, as applicableon the account of, and all condemnation proceeds or proceeds from arising out of such taking. For any such casualty insurance received by Seller period of time prior to termination during which Permittee (involuntarily on account of such taking or any casualty (the damage from which shall proceedings related thereto) does not have been repaired by Seller prior to full use of the Closing Date) as applicableAssigned Space, and Seller the monthly Rent due hereunder shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Propertybe equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (ias of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the condemnation award shall equal Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyerquasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (ii) the cost of repair of damage to the Property involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a casualtysubstantial taking, the award of damages and compensation arising by reason of such taking shall equal be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or exceed One Hundred Thousand Dollars on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit ($100,000including without limitation Section 1(2) or otherwise materially above) solely to reconstruct and adversely interfere restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the operations last sentence of the PropertySection 37(2)(a) above. Permittee, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereonhowever, shall be returned entitled to Buyeran equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and each (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be relieved effective in any arbitration proceeding arising out of all further obligations this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Damage or Destruction Condemnation. (a) In the event that, after the date hereof but prior to the Closing Date, either any portion of partial damage or destruction of the Property is taken pursuant of a type which can, under the circumstances, be expected in the reasonable judgment of Seller and Buyer to eminent domain proceedings be restored or any repaired at a cost of the improvements $500,000 or less, then, this Contract shall be consummated on the Property are damaged or destroyed by any casualtyClosing Date at the Purchase Price, Seller shall have no obligation to repair or replace any and unless such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have has been repaired by Seller prior to Closing, Seller shall assign to Buyer the casualty insurance proceeds payable to Seller and business interruption proceeds applicable to the period on and after the Closing Date) as applicableDate payable to Seller (but only to the extent such business interruption proceeds are assignable to Buyer), less any amounts expended by Seller for partial restoration and Seller shall give Buyer with a credit equal to Buyer for the amount of any deductible portion of Seller's insurance policy attributable to the Property. and/or uninsured damage. (b) In the event that the Property shall have been damaged by fire or casualty, the cost of repair or restoration of which would, in the reasonable judgment of Seller and Buyer, exceed the sum of $500,000, then unless Seller has previously repaired or restored the Property to its former condition, at Buyer’s election, Seller shall either (i) pay over or assign to Buyer, on delivery of the condemnation award shall equal or exceed One Hundred Thousand Dollars Deed all casualty insurance proceeds payable to Seller and business interruption proceeds applicable to the period on and after the Closing Date payable to Seller ($100,000) or otherwise materially and adversely affect but only to the Propertyextent such business interruption proceeds are assignable to Buyer), as less any amounts reasonably determined expended by BuyerSeller for partial restoration, with a credit to Buyer for the amount of any deductible and/or uninsured damage, or (ii) direct Escrow Agent to return the Deposit to Buyer in which case, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Contract shall terminate and be without further recourse or remedy to the parties hereto. Notwithstanding the foregoing, if Buyer elects to proceed with the transaction under clause (i) of this paragraph (b), in no event shall Seller be obligated to incur any out of pocket cost above $500,000 (whether attributable to a casualty being uninsured, underinsured or to any deductible). (c) If all or part of repair the Property is taken by condemnation, eminent domain or by agreement in lieu thereof, or any proceeding to acquire, take or condemn all or part of damage the Property is threatened or commenced, Buyer may either terminate this Contract (in which event Buyer shall be entitled to a return of the Deposit and accrued interest thereon, if any, and, except for the Surviving Obligations, all other obligations of the parties hereto shall cease and this Contract shall terminate and be without further recourse or remedy to the parties hereto) or close title to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere in accordance with the operations terms hereof, without reduction in the Purchase Price, together with an assignment of Seller's rights to any award paid or payable by or on behalf of the condemning authority. If Seller has received payments from the condemning authority and if Buyer elects to close title to the Property, as reasonably determined by Buyer, Buyer may, Seller shall credit the amount of said payment against the Purchase Price at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereunderClosing.

Damage or Destruction Condemnation. (a) The risk of loss, damage or destruction to the Property by fire or other casualty or the taking of all or part of the Property by condemnation or eminent domain or by an agreement in lieu thereof until the Closing is assumed by Seller, except to the extent otherwise provided in paragraph 6(d) of this Contract. (b) In the event thatthat the Property shall have been damaged or destroyed, after the date hereof but prior cost of repair or restoration of which would, in Buyer's and Seller's reasonable determination, exceed the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00) (the "Casualty Amount"), then at Buyer's election, Seller shall, unless Seller has previously repaired or restored the Property to its former condition, either (i) pay over or assign to Buyer, on delivery of the Deeds all amounts recovered or recoverable on account of any insurance, together with amounts equal to any deductibles thereunder, less any amounts reasonably expended by Seller for partial restoration, or (ii) direct Escrow Agent to return the Deposit to Buyer in which case all other obligations of the parties hereto shall cease and this Contract shall be void and without recourse to the Closing Dateparties hereto, either except such liabilities and obligations as expressly survive termination of this Contract. If the Property, or any part thereof, suffers any damage, the cost of repair or restoration of which would, in Buyer's and Seller's reasonable estimation, be less than the Casualty Amount, then Buyer shall consummate the Closing, without reduction in the Purchase Price, and accept the assignment of all amounts recovered or recoverable on account of any insurance, together with the amount of any deductibles thereunder, less any amounts reasonably expended by Seller for partial restoration. (c) If all or any portion of the Property is taken pursuant to by condemnation, eminent domain proceedings or by agreement in lieu thereof, or any proceeding to acquire, take or condemn all or part of the improvements on Property is threatened or commenced, Buyer may either terminate this Contract (in which event Buyer shall be entitled to a return of the Deposit) or purchase the Property are damaged in accordance with the terms hereof, without reduction in the Purchase Price, together with an assignment of Seller's right to any award paid or destroyed payable by any casualtyor on behalf of the condemning authority. If Seller has received payments from the condemning authority and if Buyer elects to purchase the Property, Seller shall have no obligation to repair or replace credit the amount of said payments against the Purchase Price at the Closing. (d) Seller shall immediately notify Buyer of any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost of repair of damage destruction to the Property on account or any notice received by it or information or awareness acquired by it regarding the threatening of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) commencement of condemnation or otherwise materially and adversely interfere with the operations of the Property, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereundersimilar proceedings.

Damage or Destruction Condemnation. In Property Owners shall deliver to BPLP written notice of any casualty involving in excess of $50,000 to repair or any taking involving the Property promptly upon learning of such casualty or taking. If, prior to the Closing, either of the Properties (each a "DAMAGED PROPERTY") is damaged or destroyed by casualty such that the cost to repair and/or restore such damage and/or destruction (which cost, for purposes of this Section, shall be deemed to include reasonably anticipated post-Closing rental loss not covered by rental loss insurance through completion of such repair and/or restoration) would exceed Five Million Dollars ($5,000,000) with respect to any one of the Properties, or Seven Million Five Hundred Thousand Dollars ($7,500,000) in the aggregate with respect to both Properties, and the Damaged Property cannot be repaired and/or restored to substantially the same condition as immediately prior to such casualty without termination, amendment or modification of the applicable Lease or other material agreement relating to the Damaged Property (any such event, a "MAJOR CASUALTY"), within twelve (12) months after the Closing Date, then BPLP shall have the right to terminate its obligation to complete the transaction contemplated under this Agreement with respect to such Damaged Property by delivery of written notice thereof to Property Owners within ten (10) Business Days after BPLP's first learning of the occurrence of such casualty and Property Owners' good faith estimate of the cost of such repair and/or restoration, timing for completion of such repair and/or restoration and confirmation that no Leases or other material agreements will be terminated, amended or modified as a result of such casualty. If all or any part of the Property is damaged and/or destroyed by fire or other casualty prior to the Closing but (i) the event thatis not a Major Casualty or (ii) the event is a Major Casualty but BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement with respect to such Damaged Property (or the Agreement in its entirety, as applicable) pursuant to this Section 4.5 as a result thereof, then the Closing Date shall occur as scheduled with respect to such Property notwithstanding such damage or destruction, and Property Owners' interest in all proceeds of insurance payable by reason of such casualty, including, without limitation, for rental loss to the extent allocable to the period after the date hereof but Closing Date, shall be assigned to BPLP as of the Closing Date or credited to BPLP if previously received by Property Owners, and Property Owners shall be responsible for the amount of any deductible under such insurance (and such amount shall be credited to BPLP at the Closing). If, prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property or either Property Owner enters into an agreement in lieu thereof, and the portion of the Property lost thereby would have a material adverse effect on the operations of the Property (a "MAJOR CONDEMNATION," and the effected Property, a "CONDEMNED PROPERTY"), then BPLP shall have the option to terminate its obligation to complete the transaction contemplated under this Agreement with respect to such Condemned Property by delivery of written notice thereof to Property Owners within ten (10) Business Days after BPLP first learns of such commencement or entry. If, prior to the Closing Date, either an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property is taken pursuant to eminent domain proceedings or any of the improvements on the either Property are damaged or destroyed by any casualty, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event Owner enters into an agreement in lieu thereof but (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, such event does not constitute a Major Condemnation or (ii) the cost event is a Major Condemnation, but BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement with respect to such Condemned Property pursuant to this Section 4.5 as a result thereof, then the Closing Date shall occur as scheduled notwithstanding such proceeding or entry, and Property Owners' interest in all awards or payments arising out of repair of damage such proceedings or agreement shall be assigned to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere with the operations BPLP as of the Property, as reasonably determined Closing Date or credited to BPLP if previously received by Buyer, Buyer may, at its option, terminate Property Owners. Property Owners' obligations under this Agreement by notice to Seller, given on or before Section shall survive the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereunderClosing.

Damage or Destruction Condemnation. In (a) If the event thatLeased Premises shall be partially damaged by any casualty covered under Landlord’s insurance policy, after Landlord shall repair the same to the condition which existed as of the date hereof but prior of this Lease, and the Base Rent and all Additional Rent and other charges shall be abated proportionately as to the Closing Date, either any that portion of the Property is taken pursuant to eminent domain proceedings or any of Leased Premises rendered untenantable. If (a) the improvements on the Property are damaged or destroyed by any casualty, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event Leased Premises (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyerreason of such occurrence is rendered wholly untenantable, or (ii) should be damaged in whole or in part during the cost last year of the Lease Term or of any Renewal Term hereof, or (b) the building of which the Leased Premises is a part (whether or not the Leased Premises is damaged) is damaged to the extent of seventy-five percent (75%) or more of the then monetary value thereof or (c) if a substantial material portion of or all of the buildings or common facilities are damaged, whether or not the Leased Premises are damaged, to such an extent that the Property cannot, in the reasonable judgment of Landlord, be operated as an integral unit, then, in any of such events described in (a) through (c) above, Landlord may either elect to repair of the damage to the condition existing at the time of execution of this Lease (other than damage to Tenant’s fixtures, furniture, equipment, other personal property and any other portions of the Leased Premises or any property located therein for which Tenant is required to or does insure or as to which Tenant shall be responsible to repair or restore as provided below) or may cancel this Lease by notice of cancellation given within sixty (60) days after such event and thereupon this Lease shall expire, and Tenant shall vacate and surrender the Leased Premises to Landlord. Upon the occurrence of any of the events described in (a) through (c) above, Tenant may cancel this Lease by notice of cancellation given within sixty (60) days after such event and thereupon this Lease shall expire. Tenant’s liability for Rent upon the termination of this Lease shall cease as of the later of (y) the day following the event or damages or (z) the date upon which Tenant ceased to do business at the Demised Premises. In the event Landlord elects to repair the damage, any abatement of Rent shall end upon the date that Landlord completes Landlord’s obligations to restore the Leased Premises. (b) If the whole of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, then the Term shall cease and terminate as of the date of title vesting in the condemnor in such proceeding and all Rent shall be paid up to that date and Tenant shall have no claim against Landlord for the value of any unexpired Lease Term of this Lease. (c) If any part of the Leased Premises or of the Property shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, and in the event that such partial taking or condemnation shall render the Leased Premises and/or the Property unsuitable for the business of Tenant, then the Lease Term shall cease and terminate as of the date of title vesting in the condemnor in such proceeding, and Tenant shall have no claim against Landlord for the value of any unexpired Lease Term. In the event of a partial taking or condemnation which is not extensive enough to render the Leased Premises unsuitable for the business of Tenant, then Landlord shall promptly restore the Leased Premises to the condition set forth in Exhibit A less the portion lost in the taking, and this Lease shall continue in full force and effect. Landlord shall not be required to expend in such restoration more than the proceeds of the award which is reserved for such purpose. The Base Rent shall be reduced in the proportion that the area of the Leased Premises taken bears to the entire area contained in the Leased Premises. (d) In the event of any condemnation or taking as hereinbefore provided, whether whole or partial, Tenant shall not be entitled to any part of the award, as damages or otherwise, for such condemnation and Landlord is to receive the full amount of such award. Tenant hereby expressly waives any right or claim to any part thereof and assigns to Landlord any share of such an award as may be granted to it. Although all damages in the event of any condemnation are to belong to Landlord whether such damages are awarded as compensation for diminution in value of the leasehold or to the fee of the Leased Premises, and although Tenant hereby expressly waives all claims against Landlord, Tenant shall have the right to claim and recover from the condemning authority, not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant’s own right on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially any and adversely interfere with the operations all damages to Tenant’s business by reason of the Propertycondemnation and for or on account of any cost or loss to which Tenant might be put in removing Tenant’s merchandise, as reasonably determined by Buyerfurniture, Buyer mayfixtures, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, leasehold improvements and each party shall be relieved of all further obligations hereunderequipment.

Damage or Destruction Condemnation. (a) If the Leased Premises shall be partially damaged by any casualty covered under Landlord’s insurance policy, Landlord shall repair the same to the condition which existed as of the date of this Lease, and the Base Rent and all Additional Rent and other charges shall be abated proportionately as to that portion of the Leased Premises rendered untenantable; provided, however, that in light of the short term nature of this Lease, Landlord may either elect to repair the damage to the condition existing at the time of execution of this Lease (other than damage to Tenant’s fixtures, furniture, equipment, other personal property and any other portions of the Leased Premises or any property located therein for which Tenant is required to or does insure or as to which Tenant shall be responsible to repair or restore as provided below) or may cancel this Lease by notice of cancellation given within sixty (60) days after such event and thereupon this Lease shall expire, and Tenant shall vacate and surrender the Leased Premises to Landlord. Upon the occurrence of any casualty which shall, in the written opinion of an architect selected by Landlord, require more than ninety (90) days from the date of the casualty for Landlord to repair and restore the Leased Premises, Tenant may cancel this Lease by notice of cancellation given within thirty (30) days after such event and thereupon this Lease shall expire. Tenant’s liability for Rent upon the termination of this Lease shall cease as of the later of (y) the day following the event or damages or (z) the date upon which Tenant ceased to do business at the Leased Premises. In the event thatLandlord elects to repair the damage, after any abatement of Rent shall end upon the date hereof but prior that Landlord completes Landlord’s obligations to restore the Closing DateLeased Premises. (b) If the whole of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, either then the Term shall cease and terminate as of the date of title vesting in the condemnor in such proceeding and all Rent shall be paid up to that date and Tenant shall have no claim against Landlord for the value of any portion unexpired Lease Term of this Lease. (c) If any part of the Leased Premises or of the Property is taken pursuant to shall be acquired or condemned by eminent domain proceedings for any public or any quasi-public use or purpose, and in the event that such partial taking or condemnation shall render the Leased Premises and/or the Property unsuitable for the business of Tenant, then the Lease Term shall cease and terminate as of the improvements on date of title vesting in the Property are damaged or destroyed by any casualtycondemnor in such proceeding, Seller and Tenant shall have no obligation claim against Landlord for the value of any unexpired Lease Term. In the event of a partial taking or condemnation which is not extensive enough to repair or replace any render the Leased Premises unsuitable for the business of Tenant, then Landlord shall promptly restore the Leased Premises to the condition set forth in Exhibit A less the portion lost in the taking, and this Lease shall continue in full force and effect. Landlord shall not be required to expend in such damage or destruction. Seller shall, upon consummation restoration more than the proceeds of the transaction herein provided, assign award which is reserved for such purpose. The Base Rent shall be reduced in the proportion that the area of the Leased Premises taken bears to Buyer all claims the entire area contained in the Leased Premises. (d) In the event of Seller respecting any condemnation or casualty insurance coveragetaking as hereinbefore provided, whether whole or partial, Tenant shall not be entitled to any part of the award, as applicabledamages or otherwise, for such condemnation and Landlord is to receive the full amount of such award. Tenant hereby expressly waives any right or claim to any part thereof and assigns to Landlord any share of such an award as may be granted to it. Although all damages in the event of any condemnation are to belong to Landlord whether such damages are awarded as compensation for diminution in value of the leasehold or to the fee of the Leased Premises, and although Tenant hereby expressly waives all condemnation proceeds claims against Landlord, Tenant shall have the right to claim and recover from the condemning authority, not from Landlord, such compensation as may be separately awarded or proceeds from any such casualty insurance received recoverable by Seller Tenant in Tenant’s own right on account of any casualty (the damage from which shall not have been repaired and all damages to Tenant’s business by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion reason of Seller's insurance policy attributable to the Property. In the event (i) the condemnation award shall equal and for or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost of repair of damage to the Property on account of a casualtyany cost or loss to which Tenant might be put in removing Tenant’s merchandise, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially furniture, fixtures, leasehold improvements and adversely interfere with the operations of the Property, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereunderequipment.

Damage or Destruction Condemnation. In The Property Owners shall deliver to BPLP written notice of any casualty involving in excess of $50,000 to repair or any taking involving the Property promptly upon learning of such casualty or taking. If, prior to the Closing, any Property (each such Property, a "DAMAGED PROPERTY") is damaged or destroyed by casualty such that the cost to repair and/or restore such damage and/or destruction (which cost, for purposes of this Section, shall be deemed to include reasonably anticipated post-Closing rental loss not covered by rental loss insurance through completion of such repair and/or restoration) would exceed Five Million Dollars ($5,000,000) with respect to any individual Property, or Twenty-Five Million Dollars ($25,000,000) in the aggregate with respect to all Properties, and the Damaged Property cannot be repaired and/or restored to substantially the same condition as immediately prior to such casualty, without termination, amendment or modification of any Leases or other material agreements relating to such Damaged Property, within twelve (12) months after the Closing Date (any such event, a "MAJOR CASUALTY"), then BPLP shall have the right to terminate its obligation to complete the transaction contemplated under this Agreement in its entirety by delivery of written notice thereof to the Property Owners within ten (10) Business Days after BPLP's first learning of the occurrence of such casualty and the Property Owner's good faith estimate of the cost of such repair and/or restoration, timing for completion of such repair and/or restoration and confirmation that no Leases or other material agreements will be terminated, amended or modified as a result of such casualty. If all or any part of the Property is damaged and/or destroyed by fire or other casualty prior to the Closing but (i) the event thatis not a Major Casualty or (ii) the event is a Major Casualty but BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement in its entirety pursuant to this Section 4.6 as a result thereof, then the Closing Date shall occur as scheduled with respect to such Property notwithstanding such damage or destruction, and the Property Owner's interest in all proceeds of insurance payable by reason of such casualty, including, without limitation, for rental loss to the extent allocable to the period after the date hereof but Closing Date, shall be assigned to BPLP as of the Closing Date or credited to BPLP if previously received by the Property Owner, and the Property Owner shall also be responsible for the amount of any deductible under such insurance (and such amount shall be credited to BPLP at the Closing). If, prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property or the Property Owner enters into an agreement in lieu thereof, and the portion of the Property lost thereby would have a material adverse effect on the operations of the Property (a "MAJOR CONDEMNATION", and the effected Developed Property, a "CONDEMNED PROPERTY"), then, except as set forth below, BPLP shall have the option to terminate its obligation to complete the transaction contemplated under this Agreement in its entirety by delivery of written notice thereof to the Property Owners within ten (10) Business Days after BPLP first learns of such commencement or entry. If, prior to the Closing Date, either an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property is taken pursuant to eminent domain proceedings or any of the improvements on the Property are damaged or destroyed by any casualty, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event Owner enters into an agreement in lieu thereof but (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, such event does not constitute a Major Condemnation or (ii) the cost of repair of damage event is a Major Condemnation, but BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement in its entirety pursuant to this Section 4.6 as a result thereof, then the Closing Date shall occur as scheduled notwithstanding such proceeding or entry, and the Property on account Owner's interest in all awards or payments arising out of a casualty, such proceedings or agreement shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere with the operations be assigned to BPLP as of the Property, as reasonably determined Closing Date or credited to BPLP if previously received by Buyer, Buyer may, at its option, terminate the Property Owner. The Property Owner's obligations under this Agreement by notice to Seller, given on or before Section shall survive the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereunderClosing.

Damage or Destruction Condemnation. In the event that, (a) If after the date hereof but expiration of the Due Diligence Expiration Date, the Improved Property shall have been damaged by fire or other casualty prior to the Closing, such that Seller’s reasonable estimate of the cost to repair the same exceeds ten percent (10%) of the Purchase Price (a “Material Casualty”), then unless Seller has previously repaired or restored such Improved Property to its former condition prior to the Closing Date, either any portion of the Property is taken pursuant to eminent domain proceedings or any of the improvements on the Property are damaged or destroyed by any casualtythen, at Buyer’s sole option, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event either (i) pay over or assign to Buyer, on delivery of the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect Deed all physical damage proceeds of any insurance policies payable to Seller, less any amounts reasonably expended by Seller for partial restoration, with a credit to Buyer for the Property, as reasonably determined by Buyeramount of any deductible, or (ii) direct Escrow Agent to return the cost Deposit and accrued interest thereon to Buyer in which case, except for the Surviving Obligations, all other obligations of repair of damage the parties hereto shall cease and this Agreement shall terminate and be without further recourse or remedy to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars parties hereto. ($100,000b) or otherwise materially and adversely interfere with If after the operations expiration of the PropertyDue Diligence Expiration Date, as reasonably determined all or a material part of the Improved Property is taken by Buyercondemnation, eminent domain or by agreement in lieu thereof prior to the Closing such that Seller’s reasonable estimate of the loss of value of the remaining applicable Improved Property exceeds an amount equal to ten percent (10%) of the Purchase Price (a “Material Taking”), Buyer may, at its Buyers’ sole option, either (i) terminate this Agreement by notice to Seller, given on or before the Closing Date, (in which event Buyer shall be entitled to a return of the Deposit, and, except for the Surviving Obligations, all other obligations of the parties hereto shall cease and this Agreement shall terminateterminate and be without further recourse or remedy to the parties hereto) or (ii) close title to the Property in accordance with the terms hereof, without reduction in the DepositPurchase Price, together with all interest earned thereonan assignment of Seller's rights to any award paid or payable by or on behalf of the condemning authority. If Seller has received payments from the condemning authority and if Buyer elects to close title to the Property, Seller shall credit the amount of said payments against the Purchase Price at the Closing. (c) With respect to any Material Casualty or Material Taking, Buyer shall be returned deemed to have elected to proceed under Article 10(a)(i) and 10(b)(ii) above respectively and as applicable, unless, within ten (10) days from the date of Seller’s delivery of written notice of such Material Casualty or Material Taking to Buyer, and each party shall be relieved of all further obligations hereunderBuyer provides Seller with written notice that Buyer has elected to terminate this Agreement as provided for in this Article 10.

Damage or Destruction Condemnation. In 8.1 Risk of loss to the event thatProperty from fire or other casualty shall be borne by Seller until Closing. If the Property or any portion thereof is substantially damaged or are destroyed by fire or other casualty prior to Closing and Seller is unable or fails to restore, after by the date hereof but prior to established for Closing, the Closing Date, either any damaged portion of the Property to a condition equivalent to that which existed immediately prior to the casualty, then Buyer shall have the option of canceling the Agreement or electing to proceed. For purposes of this paragraph, substantial damage shall be damage estimated by a contractor of Seller’s selection and reasonably acceptable to Buyer, to cost in excess of $100,000 to repair. In the event that damage is taken pursuant not substantial or if, notwithstanding substantial damage, Buyer elects to eminent domain proceedings or any of the improvements on the Property are damaged or destroyed by any casualtyproceed with Closing, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coveragethe Seller’s right, as applicable, title and all condemnation interest in the proceeds or proceeds from any such casualty insurance received by Seller to be paid on account the claim of any casualty (the damage from which shall not have been repaired by Seller loss. 8.2 If prior to Closing, any “substantial portion” of the Closing Date) as applicableProperty become subject to a condemnation proceeding or a threat thereof by public or quasi public authority having the power of eminent domain, and Seller shall give immediately notify Buyer thereof in writing and Buyer may elect to terminate this Agreement. For purposes of this Paragraph, “substantial portion” shall be defined as a credit equal to the deductible taking of such portion of Seller's insurance policy attributable to the Property. In Property such that Buyer’s use of the event (i) Property would be materially impacted as Buyer shall determine or the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost taking of repair of damage such land which prevents access to the Property on account from a public road. If Buyer elects to terminate this Agreement, it shall so notify Seller within fifteen (15) days after Buyer has received written notice of a casualty, such proceedings from Seller and the Escrow Funds shall equal be returned to the Buyer and this Agreement shall be deemed null and void and the parties hereto shall have no further obligations to or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere recourse against each other with regard to the operations of the Property, as reasonably determined by Buyer, matters provided for herein. If Buyer may, at its option, has not elected to terminate this Agreement by notice to Selleras provided in this Paragraph, given on or before the Closing Datetransaction shall proceed as contemplated herein, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, Buyer shall be returned entitled to Buyer, and each party receive all proceeds of any award or payment in lieu thereof. 8.3 All existing casualty insurance policies respecting the Property shall be relieved of all further obligations hereundermaintained and kept in full force and effect by Seller pending Closing.

Damage or Destruction Condemnation. In Issuer covenants and agrees that in the event thatof damage to or destruction of the Facilities, after or if all or any part of the date hereof but Facilities shall be taken under the exercise of eminent domain, it will immediately notify Trustee. All insurance money paid or net amounts awarded shall be paid to Issuer, and Issuer shall proceed to restore, repair, replace or rebuild the Facilities as nearly as possible to the condition they were in immediately prior to such damage or condemnation, to the Closing Dateextent that the same may be feasible, either any portion subject to such alterations as Issuer may elect to make. If the insurance money or net amounts awarded shall be insufficient to pay all costs of the Property is taken pursuant restoration, Issuer shall pay the deficiency and shall nevertheless proceed to eminent domain proceedings or any complete the restoration and pay the cost thereof. Any balance of the improvements insurance or condemnation proceeds remaining over and above the cost of the restoration shall be considered Revenues of Issuer. Issuer’s obligations to make all payments set forth herein and to perform all other covenants and agreements on the Property are damaged or destroyed its part to be performed shall not be affected by any casualty, Seller shall have no obligation to repair or replace any such damage or destructiondestruction or condemnation. Seller shallNotwithstanding the foregoing provisions of this Section, upon consummation Issuer shall not be required to repair, restore, replace or rebuild the Facilities, or any part thereof, if Issuer shall elect pursuant to Section 3.09 above to redeem prior to maturity on the next possible redemption date all of the transaction herein providedDebentures then Outstanding, assign together with accrued interest to Buyer the redemption date, and to pay all claims of Seller respecting any condemnation or casualty insurance coveragecharges, as applicablefees and expenses necessarily incurred and required to be incurred in connection with such redemption, and all condemnation proceeds or proceeds from any such casualty insurance received other amounts then owing by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the PropertyIssuer. In that event, the event (i) the proceeds of all insurance or condemnation award awards shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially be placed in and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost of repair of damage to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere with the operations become part of the Property, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given Debenture Fund. If there be any deficiency in the monies on or before deposit in the Closing Date, in which event this Agreement shall terminate, Debenture Fund after the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved deposit of all further obligations hereundersuch proceeds, Issuer shall immediately deposit therein the amount of the deficiency.

Damage or Destruction Condemnation. In (a) If any Improved Property shall have been damaged by fire or other casualty prior to the event thatClosing (a “Casualty”), after such that in the date reasonable estimate of Seller’s architect or engineer, the cost to repair the same exceeds three percent (3%) of the amount of the Purchase Price allocated to such Improved Property pursuant to Article 3 hereof but or would allow any tenant to terminate its Lease (a “Material Casualty”), and unless Seller has previously repaired or restored the applicable Improved Property to its former condition prior to the Closing Date, either any portion of the Property is taken pursuant to eminent domain proceedings or any of the improvements on the Property are damaged or destroyed by any casualtythen, at Buyer’s sole option, Seller shall have no obligation either (i) pay over or assign to repair or replace any such damage or destruction. Seller shallBuyer, upon consummation on delivery of the transaction herein providedDeed all physical damage proceeds of any insurance policies payable to Seller (including any rental loss proceeds for the period after Closing (if any)), assign less any amounts reasonably expended by Seller for partial restoration, with a credit to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account for the amount of any deductible or uninsured casualty cost, or (ii) direct Escrow Agent to return the damage from Deposit and accrued interest thereon to Buyer in which case, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Agreement shall terminate and be without further recourse or remedy to the parties hereto. In the event of any Casualty that is not have been a Material Casualty, Buyer and Seller shall proceed to Closing in accordance with the terms and conditions of this Agreement and, unless Seller has previously repaired by Seller or restored the applicable Improved Property to its former condition prior to the Closing Date) as applicable, and then Seller shall give Buyer pay over or assign to Buyer, on delivery of the Deed all physical damage proceeds of any insurance policies payable to Seller (including any rental loss proceeds for the period after Closing (if any)), less any amounts reasonably expended by Seller for partial restoration, with a credit equal to Buyer for the amount of any deductible portion of Seller's insurance policy attributable to the Propertyor uninsured casualty cost. In the event (i) Buyer is required to, or elects to, close, Seller shall not compromise, settle or adjust any claims without the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed. (iib) the cost If all or a material part of repair of damage any Improved Property is taken by condemnation, eminent domain or by agreement in lieu thereof prior to the Property on account Closing (a “Taking”) such that in the reasonable estimate of a casualtySeller’s architect or engineer, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere with the operations loss of value of the Propertyremaining Improved Property or the value of the portion of the Improved Property so taken exceeds an amount equal to three percent (3%) of the amount of the Purchase Price allocated to such Improved Property pursuant to Article 3 hereof, as reasonably determined by Buyeror results in a loss of parking stalls that would cause the Property to be in violation of applicable laws or would allow any tenant to terminate its Lease (a “Material Taking”), Buyer may, at its Buyers’ sole option, either (i) terminate this Agreement by notice to Seller, given on or before the Closing Date, (in which event Buyer shall be entitled to a return of the Deposit, and, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Agreement shall terminateterminate and be without further recourse or remedy to the parties hereto) or (ii) close title to the Property in accordance with the terms hereof, without reduction in the DepositPurchase Price, together with all interest earned thereonan assignment of Seller’s rights to any award paid or payable by or on behalf of the condemning authority. In the event of any Taking that is not a Material Taking, Buyer and Seller shall proceed to Closing in accordance with the terms and conditions of this Agreement, without reduction in the Purchase Price, together with an assignment of Seller’s rights to any award paid or payable by or on behalf of the condemning authority. If Seller has received payments from the condemning authority and if Buyer elects or is required to close title to the Property, Seller shall credit the amount of said payments against the Purchase Price at the Closing. In the event Buyer is required to, or elects to, close, Seller shall not compromise, settle or adjust any claims without the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed. (c) With respect to any Material Casualty or Material Taking, Buyer shall be returned deemed to have elected to proceed under Article 10(a)(i) and 10(b)(ii) above respectively and as applicable, unless, within ten (10) days from the date of Seller’s delivery of written notice of such Material Casualty or Material Taking to Buyer, and each party shall be relieved of all further obligations hereunderBuyer provides Seller with written notice that Buyer has elected to terminate this Agreement as provided for in this Article 10.

Damage or Destruction Condemnation. (a) The risk of loss, damage or destruction to the Property by fire or other casualty or the taking of all or part of the Property by condemnation or eminent domain or by an agreement in lieu thereof until the Closing is assumed by Seller. (b) In the event that, after the date hereof but prior to the Closing Date, either any portion of partial damage or destruction of the Property is taken pursuant of a type which can, under the circumstances, in Buyer’s reasonable determination, be expected to eminent domain proceedings be restored or any repaired at a cost of the improvements on the Property are damaged or destroyed by any casualty, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially less, then Buyer shall (unless such damage has been repaired by Seller in a good and adversely affect workmanlike manner prior to Closing) withhold from the PropertyPurchase Price the amount reasonably estimated by Buyer as necessary to effect the repair or restoration after the Closing in a federally insured interest-bearing account (such amount with all interest earned thereon, as reasonably determined by Buyerthe “Holdback”), which shall be delivered to Escrow Agent to be held in escrow and released in accordance with the provisions of this Article 11(b). In such event, Buyer shall proceed forthwith to repair or restore, or have repaired or restored, the effects of such damage or destruction and Escrow Agent, upon receipt of Buyer’s xxxx therefor, shall pay the cost of such repairs out of the Holdback. After such repair or restoration is completed to Buyer’s reasonable satisfaction, the unexpended portion of the Holdback shall be released to Seller. In the event the Holdback is less than such costs, Seller shall pay to Buyer upon demand the amount of such deficiency. The obligations contained herein shall survive the Closing. (iic) In the event that the Property shall have been damaged or destroyed, the cost of repair or restoration of damage to which would, in Buyer’s reasonable determination, exceed the Property on account sum of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000), then at Buyer’s election, Seller shall, unless Seller has previously repaired or restored the Property to their former condition, either (i) pay over or assign to Buyer, on delivery of the Deed all amounts recovered or recoverable on account of any insurance, together with amounts equal to any deductibles thereunder, less any amounts reasonably expended by Seller for partial restoration, or (ii) direct Escrow Agent to return the Deposit to Buyer in which case all other obligations of the parties hereto shall cease and this Contract shall be void and without recourse to the parties hereto. (d) If all or part of the Property is taken by condemnation, eminent domain or by agreement in lieu thereof, or any proceeding to acquire, take or condemn all or part of the Property is threatened or commenced, Buyer may either terminate this Contract (in which event Buyer shall be entitled to a return of the Deposit) or otherwise materially and adversely interfere purchase the Property in accordance with the operations terms hereof, without reduction in the Purchase Price, together with an assignment of Seller’s right to any award paid or payable by or on behalf of the condemning authority. If Seller has received payments form the condemning authority and if Buyer elects to purchase the Property, as reasonably determined Seller shall credit the amount of said payments against the Purchase Price at the Closing. (e) Seller shall immediately notify Buyer of any damage or destruction to the Property or any notice received by Buyer, Buyer may, at its option, terminate this Agreement it or information or awareness acquired by notice to Seller, given on it regarding the threatening of or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved commencement of all further obligations hereundercondemnation or similar proceedings.

Damage or Destruction Condemnation. (a) In the event thatthe Assigned Space or the improvements thereon are damaged by any casualty which is required to be insured against by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date hereof but prior of occurrence of such damage of Port’s intention to (v) to remove all damaged Concession Units (and their associated Minimum Annual Guaranty) from the Assigned Space, effective as of the date of the occurrence of such damage, or (w) to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by Section 37(b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the Closing Dateother within sixty (60) days after the date of occurrence of such damage, either any portion to terminate this Permit as of the Property is taken date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to eminent domain proceedings or any this Permit shall be paid to Port. In the event a Concession Unit is removed from the Assigned Space pursuant to Section 37(1)(b)(ii)(v) above, the Port, shall send to Permittee an amendment to this Permit showing the deletion of that Concession Unit from the improvements on Assigned Space, and this Permit shall be deemed amended thereby. (c) If the Property are Assigned Space is damaged or destroyed by any casualty, Seller Permittee shall have no obligation to repair or replace claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Seller shallPort and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, upon consummation and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the transaction herein providedAssigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, assign then, in such event, on the earlier of the date title to Buyer all claims the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of Seller respecting the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any condemnation compensation or casualty insurance coveragedamages for, as applicableon the account of, and all condemnation proceeds or proceeds from arising out of such taking. For any such casualty insurance received by Seller period of time prior to termination during which Permittee (involuntarily on account of such taking or any casualty (the damage from which shall proceedings related thereto) does not have been repaired by Seller prior to full use of the Closing Date) as applicableAssigned Space, and Seller the monthly Rent due hereunder shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Propertybe equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (ias of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the condemnation award shall equal Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyerquasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (ii) the cost of repair of damage to the Property involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a casualtysubstantial taking, the award of damages and compensation arising by reason of such taking shall equal be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or exceed One Hundred Thousand Dollars on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit ($100,000including without limitation Section 1(2) or otherwise materially above) solely to reconstruct and adversely interfere restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this Section 37(2)(c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the operations last sentence of the PropertySection 37(2)(a) above. Permittee, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereonhowever, shall be returned entitled to Buyeran equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and each (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be relieved effective in any arbitration proceeding arising out of all further obligations this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this Section 37(2)(g). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Damage or Destruction Condemnation. In (a) Until the event thatClosing, after the date hereof but prior risk of loss or damage to the Closing Date, either any portion of Property shall be borne by the Property is taken pursuant to eminent domain proceedings or any of the improvements on the Property are damaged or destroyed by any casualty, Seller shall have no obligation to repair or replace any such damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event the Property is damaged so that the Property cannot be conveyed in substantially the same condition as it was at the time of this Agreement, Purchaser shall have the option of either (i) terminating this Agreement by giving written notice thereof to Seller, whereupon the condemnation award Binder Deposit shall equal be refunded to the Purchaser and the parties shall have no further rights, obligations or exceed One Hundred Thousand Dollars liabilities to each other hereunder ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyerexcept for Purchaser’s Indemnification Obligations which shall survive such termination), or (ii) requiring Seller to convey the cost Property to Purchaser pursuant to the terms and provisions hereof and to transfer and assign to Purchaser at Closing all of repair Seller’s right, title and interest in and to any insurance proceeds which may be available by reason of such damage or casualty. Seller represents and warrants to Purchaser that Seller’s deductible under its property casualty insurance policy is $75,000. (b) In the event the Property, or any material portion or portions thereof which are necessary for the Property’s use as of the Effective Date, shall be taken or condemned by any governmental authority or other entity prior to the date of Closing, or in the event Purchaser receives notice of a proposed taking prior to the date of Closing, Purchaser shall have the option of either (i) terminating this Agreement by giving written notice thereof to Seller, whereupon the Binder Deposit shall be refunded to the Purchaser and the parties shall have no further rights, obligations or liabilities to each other hereunder (except for Purchaser’s Indemnification Obligations which shall survive such termination), or (ii) requiring Seller to convey the remaining portion of the Property to Purchaser pursuant to the terms and provisions hereof and to transfer and assign to Purchaser at Closing all of Seller’s right, title and interest in and to any award made or to be made by reason of such condemnation. Seller and Purchaser hereby further agree that Purchaser shall have the right to participate in all negotiations with any such governmental authority relating to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) to the compensation to be paid for any portion or otherwise materially and adversely interfere with the operations of the Property, as reasonably determined portions thereof condemned by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on such governmental authority or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereunderother entity.

Damage or Destruction Condemnation. (a) The risk of loss, damage or destruction to the Property by fire or other casualty or the taking of all or part of the Property by condemnation or eminent domain or by an agreement in lieu thereof until the Closing is assumed by Seller. (b) In the event thatof partial damage or destruction of the Property of a type which can, after under the date hereof but circumstances, in the parties’ reasonable joint determination, be expected to be restored or repaired at a cost of $150,000 or less, then, Buyer shall receive a credit at Closing for the amount reasonably estimated by Buyer to repair or restore the Property to substantially its prior condition (unless such damage or destruction has been repaired by Seller in a good and workmanlike manner prior to Closing) and Seller shall be entitled to all insurance proceeds on account of the Closing Datedamage or destruction. (c) In the event that the Property shall have been damaged or destroyed, the cost of repair or restoration of which would, in the parties’ reasonable joint determination, exceed the sum of $150,000, then at Buyer's election, Seller shall, unless Seller has previously repaired or restored the Property to their former condition, either (a) pay over or assign to Buyer, at Closing all amounts recovered or recoverable on account of any portion insurance, together with amounts equal to any deductibles thereunder, less any amounts reasonably expended by Seller for partial restoration, or (b) direct Escrow Agent to return the Deposit to Buyer in which case all other obligations of the parties hereto shall cease and this Contract shall be void and without recourse to the parties hereto. (d) If all or part of the Property is taken pursuant to by condemnation, eminent domain proceedings or by agreement in lieu thereof, or any proceeding to acquire, take or condemn all or part of the improvements on Property is threatened or commenced, Buyer may either terminate this Contract (in which event Buyer shall be entitled to a return of the Deposit) or purchase the Property are damaged in accordance with the terms hereof, without reduction in the Purchase Price, together with an assignment of Seller's rights to any award paid or destroyed payable by any casualtyor on behalf of the condemning authority. If Seller has received payments from the condemning authority and if Buyer elects to purchase the Property, Seller shall have no obligation to repair or replace credit the amount of said payments against the Purchase Price at the Closing. (e) Seller shall immediately notify Buyer of any such material damage or destruction. Seller shall, upon consummation of the transaction herein provided, assign to Buyer all claims of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost of repair of damage destruction to the Property on account or any notice received by it or information or awareness acquired by it regarding the threatening of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) commencement of condemnation or otherwise materially and adversely interfere with the operations of the Property, as reasonably determined by Buyer, Buyer may, at its option, terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this Agreement shall terminate, the Deposit, together with all interest earned thereon, shall be returned to Buyer, and each party shall be relieved of all further obligations hereundersimilar proceedings.

Damage or Destruction Condemnation. In the event that, after of loss or of damage to the date hereof but building improvements included within the Property by fire or other casualty prior to Close of Escrow (a "Casualty"), or in the Closing Date, either event a proceeding is instituted or threatened prior to Close of Escrow for the taking of all or any portion of the Property is taken pursuant to under the power of eminent domain proceedings (a "Taking"), Buyer shall have the right by giving written notice to Seller and the Escrow Holder within thirty (30) days after the date of receipt of written notice of any such Casualty or any Taking, either to (i) consummate the purchase and sale of the improvements on the Property are damaged or destroyed by any casualty, in accordance with this Agreement (in which event Seller shall have no obligation deliver to repair or replace any such damage or destruction. Seller shall, upon consummation Buyer at Close of Escrow an assignment reasonably satisfactory in form and substance to Buyer of all of the transaction herein providedright, assign to title and interest, if any, which Seller may have in (A) the insurance payable under all insurance policies kept or maintained by Seller as a result of or in connection with such Casualty and (B) the award payable by reason of the Taking and, concurrently therewith, deposit cash in Escrow for Buyer all claims in the amount of Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation such proceeds or proceeds from any such casualty insurance and award theretofore received by Seller on account Seller); or (ii) terminate this Agreement effective as of any casualty the date such notice of termination is given to Seller. The Closing Date shall be deferred, if necessary, to permit Buyer to have the thirty (30)-day period following a Casualty or Taking to make the damage from which shall not have been repaired by Seller prior to the Closing Date) as applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Propertyelection specified hereinabove. In the event (i) of any such termination the condemnation award Escrow Holder shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially forthwith terminate the Escrow. Seller and adversely affect the Property, as reasonably determined by Buyer, or (ii) the cost of repair of damage Buyer shall each be responsible for payment to the Property on account Escrow Holder of a casualty, shall equal or exceed One Hundred Thousand Dollars one-half ($100,0001/2) or otherwise materially and adversely interfere with the operations of the PropertyEscrow fees and charges related to termination, as reasonably determined if any. Provided Buyer shall have given a copy to Seller of any and all surveys, tests, audits and studies made by Buyeror for Buyer pursuant to Section 3.4.3 of this Agreement, Buyer may, at its option, terminate upon termination of this Agreement by notice to Seller, given on or before the Closing Date, as provided above in which event this Agreement shall terminateSection 13, the Deposit, together with all Escrow Holder shall forthwith disburse Buyer's Xxxxxxx Money Deposit (and any interest earned thereon) to Buyer (less Buyer's share, shall be returned if then unpaid, of the Escrow fees and charges related to Buyertermination, and each party shall be relieved of all further obligations hereunderif any).