Common use of Effect of Casualty or Condemnation Clause in Contracts

Effect of Casualty or Condemnation. 9.2.1. If prior to the Closing, (i) condemnation proceedings are commenced against all or any portion of a Hotel, and such proceedings do not materially adversely affect the continued operation of such Hotel in substantially the same manner as such Hotel is operated on the Contract Date, or (ii) such Hotel is damaged by fire or other casualty to the extent that the cost of repairing such damage is reasonably estimated by Seller and Purchaser, each acting reasonably and in good faith, to be five percent (5%) or less of the Purchase Price allocated to such Hotel, then this Agreement shall continue in full force and effect and the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser shall be entitled to an assignment of all of the proceeds payable to Seller of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing to restore such Hotel), all business interruption insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after the Closing, and all condemnation awards payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such Hotel or in connection with the collection of the award), as the case may be, and Seller shall have no obligation to repair or restore such Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by Seller’s insurer with respect to such fire or casualty and not paid by Seller prior to the Closing. 9.2.2. If prior to the Closing, (i) condemnation proceedings are commenced against all or any material portion of a Hotel and such proceedings are not covered by Section 9.2.1, or (ii) such Hotel is damaged by fire or other casualty and such damage is not covered by Section 9.2.1, Purchaser shall have the right, upon notice in writing to Seller delivered within ten (10) days after Seller gives Purchaser notice of such matter as described in this Section 9.2.2, to terminate this Agreement, whereupon this Agreement shall terminate and neither party to this Agreement shall thereafter have any further rights or liabilities under this Agreement other than those that expressly survive termination of this Agreement. If Purchaser does not timely elect, or is not entitled, to terminate this Agreement as set forth above, the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser shall be entitled to an assignment of all of the proceeds payable to Seller of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing to restore such Hotel), all business interruption insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after the Closing, and all condemnation awards payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such Hotel or in connection with the collection of the award), as the case may be, and Seller shall have no obligation to repair or restore such Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by Seller’s insurer with respect to such fire or casualty and not paid by Seller prior to the Closing. Any termination pursuant to the analogous section in the BCC Purchase and Sale Agreement shall be deemed a termination under this Agreement.

Effect of Casualty or Condemnation. 9.2.1. 9.2.1 If prior to the Closing, (i) condemnation proceedings are commenced against all or any portion of a the Hotel, and such proceedings do not materially adversely affect the continued operation of such the Hotel in substantially the same manner as such Hotel is operated on the Contract Date, or (ii) such the Hotel is damaged by fire or other casualty to the extent that the cost of repairing such damage to the Hotel is reasonably estimated by Seller and Purchaser, each acting reasonably and in good faith, to be five percent Two Million Five Hundred Thousand Dollars (5%$2,500,000.00) or less of in the Purchase Price allocated to such Hotelaggregate, then this Agreement shall continue in full force and effect and the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser shall be entitled to an assignment of all of the proceeds payable to Seller of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing used to restore such the Hotel), all business interruption ) and rent insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after Closing or of the Closing, and all condemnation awards award payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such Hotel or in connection with the collection of the award)Seller, as the case may be, and Seller shall have no obligation to repair or restore such the Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by the Seller’s insurer with respect to such fire or casualty and not paid by Seller prior to the Closing. 9.2.2. 9.2.2 If prior to the Closing, (i) condemnation proceedings are commenced against all or any material portion of a the Hotel and such proceedings are not covered by Section 9.2.1, or (ii) such the Hotel is damaged by fire or other casualty and such damage is not covered by Section 9.2.1, Purchaser shall have the right, upon notice in writing to the Seller delivered within ten (10) business days after Seller gives delivers to Purchaser notice the information required under the provisions of such matter as described in this Section 9.2.29.1, to terminate this Agreement, Agreement whereupon this Agreement the Deposit shall terminate be returned to Purchaser and neither party to this Agreement Seller nor Purchaser shall thereafter have any further rights or liabilities obligations under this Agreement other than those except for any obligations that expressly survive the termination of this Agreement. If Purchaser does not timely elect, or is not entitled, to terminate this Agreement as set forth above, the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser shall be entitled to an assignment of all of the proceeds payable to the Seller of the Hotel of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing used to restore such the Hotel), all business interruption ) and rent insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after Closing or of the Closing, and all condemnation awards award payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such Hotel or in connection with the collection of the award)Seller, as the case may be, and Seller shall have no obligation to repair or restore such Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by Seller’s insurer with respect to such fire or casualty and not paid by Seller prior to the Closing. Any termination pursuant to the analogous section in the BCC Purchase and Sale Agreement shall be deemed a termination under this Agreement.

Effect of Casualty or Condemnation. 9.2.1. 9.14.1 Investor shall give Summit written notice of the following promptly upon becoming aware of the same: (i) any pending or threatened condemnation affecting any Project prior to the Closing, and (ii) any material fire or other casualty affecting any Project and occurring prior to the Closing. 9.14.2 If prior to the Closing, (i) condemnation proceedings are commenced against all or any portion of a Hotelany Project, and such proceedings do are not materially adversely affect the continued operation of such Hotel in substantially the same manner as such Hotel is operated reasonably expected to have a Material Adverse Effect on the Contract Date, a Project; or (ii) such Hotel any Project is damaged by fire or other casualty to the extent that and the cost of repairing such damage is reasonably estimated by Seller Investor and PurchaserSummit, each acting reasonably and in good faith, to be five is an amount that is, in each case, less than seventeen and one-half percent (517.5%) or less of the Allocated Purchase Price allocated to for such HotelProject (the matters described in clauses (i) and (ii) above, collectively, the “Casualty and Condemnation Termination Threshold”), then this Agreement shall continue in full force and effect and the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser Summit shall be entitled to an assignment of of, and the right to make a claim for and to retain, all of the proceeds payable to Seller Investor of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller Investor prior to the Closing to restore such Hotelthe applicable Project), all business interruption insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after the Closing, and all condemnation awards payable to Seller Investor (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller Investor prior to the Closing to restore such Hotel the Project or in connection with the collection of the award), as the case may be, and Seller Investor shall have no obligation to repair or restore such Hotelthe applicable Project; provided, however, that in the case of any insured casualty, (A) Investor shall promptly file appropriate claims under all applicable insurance policies and use commercially reasonable efforts both before and after the Purchase Price Closing to collect the maximum amount of insurance proceeds available under such policies on behalf of Summit, (B) Summit shall receive a credit against the cash due at the Closing for the amounts of any uninsured damage, any self-insured retention and the deductible on such casualty insurance policy, less any amounts reasonably and actually expended by Investor to remedy any unsafe conditions at the applicable Project, to repair or restore any damages or otherwise file and pursue a claim under paragraph (A) (including without limitation the cost of a public adjuster), in no event to exceed the amount of the proceeds, (C) all right, title and interest of Investor in and to any insurance proceeds resulting from such casualties shall be reduced by the “deductible” applied by Seller’s insurer with respect property of Summit (other than on account of business or rental interruption relating to such fire or casualty and not paid by Seller the period prior to the Closing), less any amounts reasonably and actually expended by Investor to remedy any unsafe conditions at the Project, to repair or restore any damages or otherwise file and pursue a claim under paragraph (A) (including without limitation the cost of a public adjuster), in no event to exceed the amount of the proceeds, and (D) Investor will provide to Summit at the Closing, or as soon thereafter as practicable, written assignments of the applicable insurance policies with respect to the casualty, or if the policies themselves are not assignable, the proceeds collectible thereunder, to the extent permitted by the terms of such policies and by the insurers. 9.2.2. 9.14.3 If prior to the Closing, (i) condemnation proceedings are commenced against all or any material portion of a Hotel the Project and such proceedings are not covered by Section 9.2.1condemnation will likely exceed the Casualty and Condemnation Termination Threshold, or (ii) such Hotel the Project is damaged by fire or other casualty and such damage is not covered by Section 9.2.1will likely exceed the Casualty and Condemnation Threshold, Purchaser Summit shall have the right, upon notice in writing to Seller Investor delivered within ten (10) days after Seller Investor gives Purchaser Summit notice of such matter as described in this Section 9.2.29.14.3, to terminate this AgreementAgreement with respect to the applicable Project, whereupon this Agreement shall terminate as to such Project, and neither party to such Project shall be removed from the transactions contemplated by this Agreement shall thereafter have any further rights or liabilities under this Agreement other than those that expressly survive termination of this Agreement. If Purchaser does not timely elect, or is not entitled, pursuant to terminate this Agreement as set forth above, the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser shall be entitled to an assignment of all of the proceeds payable to Seller of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing to restore such Hotel), all business interruption insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from Sections 3.3 and after the Closing, 4.3.2 and all condemnation awards payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such Hotel or in connection with the collection of the award), as the case may be, and Seller shall have no obligation to repair or restore such Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by Seller’s insurer in accordance with respect to such fire or casualty and not paid by Seller prior to the Closing. Any termination pursuant to the analogous section in the BCC Purchase and Sale Agreement shall be deemed a termination under this Agreement.Section 3.3

Effect of Casualty or Condemnation. 9.2.1. If prior to the Closing, (i) condemnation proceedings are commenced against all or any portion of a the Hotel, and such proceedings do not materially adversely affect the continued operation of such the Hotel in substantially the same manner as such the Hotel is operated on the Contract Effective Date, or (ii) such the Hotel is damaged by fire or other casualty to the extent that the cost of repairing such damage is reasonably estimated by Seller and PurchaserBuyer, each acting reasonably and in good faith, to be five percent (5%) or less of the Purchase Price allocated to such Hotelor less, then this Agreement shall continue in full force and effect and the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser Buyer shall be entitled to an assignment of all of the proceeds payable to Seller of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing to restore such the Hotel), all business interruption insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after the Closing, and all condemnation awards payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such the Hotel or in connection with the collection of the award), as the case may be, and Seller shall have no obligation to repair or restore such the Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by Seller’s insurer with respect to such fire or casualty and not paid by Seller prior to the Closing. 9.2.2. If prior to the Closing, (i) condemnation proceedings are commenced against all or any material portion of a the Hotel and such proceedings are not covered by Section 9.2.1, or (ii) such the Hotel is damaged by fire or other casualty and such damage is not covered by Section 9.2.1, Purchaser Buyer shall have the right, upon notice in writing to Seller delivered within ten (10) days after Seller gives Purchaser Buyer notice of such matter as described in this Section 9.2.2, to terminate this Agreement, whereupon this Agreement shall terminate terminate, Escrow Agent shall return the Deposit to Buyer and neither party to this Agreement shall thereafter have any further rights or liabilities under this Agreement other than those that expressly survive termination of this Agreement. If Purchaser Buyer does not timely elect, or is not entitled, to terminate this Agreement as set forth above, the Purchase Price shall not be reduced except as hereinafter set forth, but Purchaser Buyer shall be entitled to an assignment of all of the proceeds payable to Seller of fire or other casualty insurance (other than those proceeds expended by or on behalf of Seller prior to the Closing to restore such the Hotel), all business interruption insurance proceeds (if any, apart from any that are payable to Manager) payable with respect to the period from and after the Closing, and all condemnation awards payable to Seller (other than any portion of the award in respect of income lost prior to the Closing or expended by or on behalf of Seller prior to the Closing to restore such the Hotel or in connection with the collection of the award), as the case may be, and Seller shall have no obligation to repair or restore such the Hotel; provided, however, that in the case of any insured casualty, the Purchase Price shall be reduced by the “deductible” applied by Seller’s insurer with respect to such fire or casualty and not paid by Seller prior to Closing. 9.2.3. The provisions of this Section 9.2 are intended to supersede the Closing. Any termination pursuant provisions of any applicable statutory or decisional law with respect to the analogous section in the BCC Purchase and Sale Agreement shall be deemed a termination under subject matter of this AgreementSection 9.2.