Common use of Damage or Destruction Condemnation Clause in Contracts

Damage or Destruction Condemnation. (a) All risk of loss to the Property shall be borne by the Partnership until the Closing subject to the provisions of this Section 4.6. The Partnership shall promptly deliver to Essex written notice of any casualty or taking involving the Property. If, prior to the Closing, all or any part of the 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 4.6(a), shall be deemed to include reasonably anticipated post-Closing rental loss through completion of such repair and/or restoration) would exceed Three Hundred Thousand Dollars ($300,000) (a “Major Casualty”), then Essex shall have the right to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex’s first learning of the occurrence of such casualty and the cost of such repair and/or restoration. 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 is not a Major Casualty or (ii) the event is a Major Casualty but this Agreement is not terminated pursuant to this Section 4.6(a) as a result thereof, then the Closing Date shall occur as scheduled notwithstanding such damage or destruction, and the Partnership’s interest in all proceeds of insurance payable by reason of such casualty shall be assigned to Essex as of the Closing Date or credited to Essex if previously received by the Partnership, and the Partnership shall be responsible for any cost of repair not covered by such insurance (whether by reason of insurance deductible, uninsured casualty or otherwise). The Partnership’s obligations under this Section 4.6(a) shall survive the Closing. (b) If, prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property or the Partnership enters into an agreement in lieu thereof or becomes aware that any such agreement may be offered, and the award to be paid in connection therewith is to exceed Three Hundred Thousand Dollars ($300,000), or any units or parking spaces are taken or to be taken in connection therewith, or any access to the Property has been or will be materially impaired (each, a “Major Condemnation”), Essex shall have the option to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex first learns of such commencement, entry or offer. If, prior to the Closing Date, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property or the Partnership enters into an agreement in lieu thereof or becomes aware that any such agreement may be offered and such event does not constitute a Major Condemnation then the Closing Date shall occur as scheduled notwithstanding such proceeding, entry or offer, and the Partnership’s interest in all awards or payments arising out of such proceedings or agreement shall be assigned to Essex as of the Closing Date or credited to Essex if previously received by the Partnership. The Partnership’s obligations under this Section 4.6(b) shall survive the Closing.

Damage or Destruction Condemnation. (a) All risk of loss to the Property shall be borne by the Partnership until the Closing subject Subject to the provisions of subsection (b) below, Buyer shall be bound to purchase the Hotels for the Purchase Price as required by the terms of this Section 4.6Agreement without regard to the occurrence during the Contract Period of any damage to or destruction of any of the Improvements ("Contract Period Damage") or the institution or maintenance of any condemnation or similar proceeding with respect to any of the Hotels ("Condemnation"). The Partnership Buyer shall receive a credit in escrow in the amount of any insurance or condemnation proceeds (net of reasonable costs incurred in securing such proceeds) collected by Seller prior to the Closing Date as a result of any Contract Period Damage or Condemnation and not expended by Seller on repair, replacement or restoration of the damaged Hotel pursuant to subsection (c) below, plus the amount of any deductible in connection with such insurance. Seller shall assign to Buyer at closing the right to receive any such insurance or condemnation proceeds and shall promptly deliver to Essex written notice of Buyer any casualty or taking involving the Property. If, prior to the Closing, all or any part of the 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 4.6(a), proceeds as shall be deemed to include reasonably anticipated post-Closing rental loss through completion of such repair and/or restoration) would exceed Three Hundred Thousand Dollars ($300,000) (a “Major Casualty”), then Essex shall have the right to terminate its obligation to consummate the transactions contemplated collected by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex’s first learning of the occurrence of such casualty and the cost of such repair and/or restoration. If all or any part of the Property is damaged and/or destroyed by fire or other casualty prior to Seller following the Closing but (i) the event is not a Major Casualty or (ii) the event is a Major Casualty but this Agreement is not terminated pursuant to this Section 4.6(a) as a result thereof, then the Closing Date shall occur as scheduled notwithstanding such damage or destruction, and the Partnership’s interest in all proceeds of insurance payable by reason of such casualty shall be assigned to Essex as of the Closing Date or credited to Essex if previously received by the Partnership, and the Partnership shall be responsible for any cost of repair not covered by such insurance (whether by reason of insurance deductible, uninsured casualty or otherwise). The Partnership’s obligations under this Section 4.6(a) shall survive the ClosingDate. (b) IfNotwithstanding the foregoing, prior if the cost of repair, replacement or restoration of any Hotel attributable to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion Contract Period Damage exceeds 15% of the Property Purchase Price allocated to such Hotel or in the Partnership enters into an agreement in lieu thereof or becomes aware that event any such agreement Condemnation proceedings are instituted, either party may be offered, and the award to be paid in connection therewith is to exceed Three Hundred Thousand Dollars ($300,000), or any units or parking spaces are taken or to be taken in connection therewith, or any access to the Property has been or will be materially impaired (each, a “Major Condemnation”), Essex shall have the option elect to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex first learns other given not more than 10 days following the event of such commencement, entry damage or offer. If, destruction or notification of the Condemnation and not later than one day prior to the Closing Date. If the Contract Period Damage arises out of an uninsured risk, an Authority commences any eminent domain Seller shall elect, by written notice given within such 10-day period, either to terminate this Agreement or condemnation proceeding to take any portion close escrow as contemplated in this Agreement with a reduction in the Purchase Price equal to the cost of repair, replacement or restoration of the Property damaged Hotel. Upon termination of this Agreement pursuant to this paragraph, Seller shall return to Buyer the Deposit and all rights and obligations hereunder of each party shall be at an end. In the event neither party timely elects to terminate this Agreement pursuant to this subsection, the provisions of subsection (a) above shall be applicable. (c) Upon the occurrence of any Contract Period Damage, Seller may, but shall not be obligated to, use any insurance proceeds collected with respect to such Contract Period Damage to repair, replace or restore the Partnership enters into an agreement in lieu thereof damaged Hotel to the extent reasonably feasible prior to the Closing Date. Seller's election to commence the repair, replacement or becomes aware that any such agreement may be offered and such event does not constitute a Major Condemnation then restoration of the Hotel prior to the Closing Date shall occur as scheduled notwithstanding in no way imply that Seller has made any representation or warranty with respect to any work performed in connection with such proceedingrepair, entry replacement or offerrestoration ("Seller's Repairs"). The plans, materials, choice of contractor and all other material aspects of the Partnership’s interest in all awards or payments arising out performance of such proceedings or agreement Seller's Repairs shall be assigned subject to Essex as Buyer's review and approval (which shall not be unreasonably withheld) and to the general disclaimer set forth in Section 2.4 above. In the event that Buyer does not approve any aspect of Seller's Repairs in writing within 5 days following Seller's request for such approval, Seller may, at its option, terminate this Agreement by written notice delivered to Buyer on or before the Closing Date Date. Upon termination of this Agreement pursuant to this paragraph, Seller shall return to Buyer the Deposit and all rights and obligations hereunder of each party shall be at an end. (d) Notwithstanding anything in this Agreement to the contrary, the insurance proceeds to be credited or credited delivered to Essex if previously received by the Partnership. The Partnership’s obligations under Buyer pursuant to this Section 4.6(b) 8.1 shall survive exclude business interruption or rental loss insurance proceeds, if any, allocable to the Closingperiod through the Closing Date, which proceeds shall be retained by Seller.

Damage or Destruction Condemnation. (a) All risk 8.1 Risk of loss to the Property from fire or other casualty shall be borne by Seller until Closing. If the Partnership until the Closing subject to the provisions of this Section 4.6. The Partnership shall promptly deliver to Essex written notice of any casualty or taking involving the Property. If, prior to the Closing, all Property or any part of the Property portion thereof is substantially 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 4.6(a), shall be deemed to include reasonably anticipated post-Closing rental loss through completion of such repair and/or restoration) would exceed Three Hundred Thousand Dollars ($300,000) (a “Major Casualty”), then Essex shall have the right to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex’s first learning of the occurrence of such casualty and the cost of such repair and/or restoration. If all or any part of the Property is damaged and/or destroyed by fire or other casualty prior to Closing and Seller is unable or fails to restore, by the Closing but (i) date established for Closing, the 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 $50,000.00 to repair. In the event that damage is not a Major Casualty substantial or (ii) if, notwithstanding substantial damage, Buyer elects to proceed with Closing, Seller shall assign to Buyer all of the event is a Major Casualty but this Agreement is not terminated pursuant to this Section 4.6(a) as a result thereofSeller's right, then the Closing Date shall occur as scheduled notwithstanding such damage or destruction, title and the Partnership’s interest in all the proceeds to be paid on the claim of insurance payable by reason of such casualty shall be assigned to Essex as of the Closing Date or credited to Essex if previously received by the Partnership, and the Partnership shall be responsible for any cost of repair not covered by such insurance (whether by reason of insurance deductible, uninsured casualty or otherwise). The Partnership’s obligations under this Section 4.6(a) shall survive the Closingloss. (b) If, 8.2 If prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property becomes subject to a condemnation proceeding or a threat thereof by public or quasi public authority having the power of eminent domain, Seller shall 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 taking of such portion of the Property such that Buyer's use of the Property would be materially impacted as Buyer shall determine or the Partnership enters into an agreement in lieu thereof or becomes aware that any taking of such agreement may be offered, and the award to be paid in connection therewith is to exceed Three Hundred Thousand Dollars ($300,000), or any units or parking spaces are taken or to be taken in connection therewith, or any land which prevents access to the Property has been or will be materially impaired (each, from a “Major Condemnation”), Essex shall have the option public road. If Buyer elects to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of Agreement, it shall so notify Seller within fifteen (15) days after Buyer has received written notice thereof to the Partnership within ten (10) Business Days after Essex first learns of such commencement, entry or offer. If, prior to the Closing Date, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property or the Partnership enters into an agreement in lieu thereof or becomes aware that any such agreement may be offered and such event does not constitute a Major Condemnation then the Closing Date shall occur as scheduled notwithstanding such proceeding, entry or offer, and the Partnership’s interest in all awards or payments arising out of such proceedings or agreement from Seller and the Escrow Funds shall be assigned returned to Essex the Buyer and this Agreement shall be deemed null and void and the parties hereto shall have no further obligations to or recourse against each other with regard to the matters provided for herein. If Buyer has not elected to terminate this Agreement as provided in this Paragraph, the transaction shall proceed as contemplated herein, in which event Buyer shall be entitled to received all proceeds of any award or payment in lieu thereof. 8.3 All existing casualty insurance policies respecting the Closing Date or credited to Essex if previously received Property shall be maintained and kept in full force and effect by the Partnership. The Partnership’s obligations under this Section 4.6(b) shall survive the Seller pending Closing.

Damage or Destruction Condemnation. 9.1 9.1 If, after the date hereof, all or a material portion of the Property is destroyed by fire or other casualty and not restored prior to the Closing Date, Purchaser shall have the option to terminate this Contract of Sale within twenty (a20) All days after receiving notice thereof together with an estimate of the cost of the restoration as reasonably determined by an engineer selected by Seller which is reasonably satisfactory to Purchaser, and, in the event of such termination, Escrowee will return the Deposit to Purchaser, this Contract of Sale will terminate and neither party will have any further obligation hereunder. Notwithstanding any provisions of New Jersey law pertaining to risk of loss to in the Property shall be borne by the Partnership until the Closing subject to the provisions event of this Section 4.6. The Partnership shall promptly deliver to Essex written notice of any a fire or other casualty or taking involving the Property. If, prior to the ClosingClosing to the contrary, all or any part if less than a material portion of the 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 4.6(a), shall be deemed to include reasonably anticipated post-Closing rental loss through completion of such repair and/or restoration) would exceed Three Hundred Thousand Dollars ($300,000) (a “Major Casualty”), then Essex shall have the right to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex’s first learning of the occurrence of such casualty and the cost of such repair and/or restoration. 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 is not a Major Casualty or (ii) the event is a Major Casualty but this Agreement is not terminated pursuant to this Section 4.6(a) as a result thereof, then the Closing Date shall occur as scheduled notwithstanding such damage or destruction, and the Partnership’s interest in all proceeds of insurance payable by reason of such casualty shall be assigned to Essex as of the Closing Date or credited to Essex if previously received by the Partnership, and the Partnership shall be responsible for any cost of repair not covered by such insurance (whether by reason of insurance deductible, uninsured casualty or otherwise). The Partnership’s obligations under this Section 4.6(a) shall survive the Closing. (b) If, prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any if all or a material portion of the Property or is damaged but Purchaser fails to timely terminate this Contract of Sale, (a) Purchaser shall purchase the Partnership enters into an agreement Property in lieu thereof or becomes aware that its “as is” condition at Closing, (b) Seller shall assign the proceeds of casualty insurance, if any, to Purchaser at the Closing and shall deliver to Purchaser any such agreement may be offered, proceeds actually theretofore paid after reimbursing itself for the reasonable out-of-pocket costs of collection of the proceeds and the award to be paid in connection therewith is to exceed Three Hundred Thousand Dollars ($300,000), or of any units or parking spaces are taken or to be taken in connection therewith, or any access repairs to the Property has been made by or will on behalf of Seller and shall not adjust or compromise a claim for such insurance proceeds without Purchaser’s consent (such consent not to be materially impaired unreasonably withheld), (eachc) the Purchase Price shall not be reduced or otherwise affected by such damage (except that at the Closing Purchaser shall receive a credit against the Purchase Price in the amount of the deductible under Seller’s casualty policy), (d) Seller shall not be required to repair such damage and (e) Seller shall, at the Closing, execute, acknowledge and deliver to Purchaser such documents and instruments as Purchaser shall reasonably request in furtherance of the purpose of this Section 9.1. For purposes of this Section 9.1, a “Major Condemnation”), Essex shall have the option to terminate its obligation to consummate the transactions contemplated by this Agreement by delivery of written notice thereof to the Partnership within ten (10) Business Days after Essex first learns of such commencement, entry or offer. If, prior to the Closing Date, an Authority commences any eminent domain or condemnation proceeding to take any material portion of the Property or the Partnership enters into an agreement in lieu thereof or becomes aware that any such agreement may be offered and such event does not constitute a Major Condemnation then the Closing Date shall occur as scheduled notwithstanding such proceeding, entry or offer, and the Partnership’s interest in all awards or payments arising out of such proceedings or agreement shall be assigned deemed to Essex as have been destroyed if the cost of restoring the Closing Date or credited to Essex if previously received by the Partnership. The Partnership’s obligations under this Section 4.6(b) shall survive the ClosingImprovements exceeds $1,000,000.