Common use of Insurance Casualty and Condemnation Clause in Contracts

Insurance Casualty and Condemnation. (a) If, before the Closing, the Property is damaged by fire or other casualty, and such damage does not result in an ACBR Material Adverse Effect, the Closing shall proceed as scheduled and Seller shall, as of the Closing Date, (i) promptly pay to Buyer all insurance proceeds received by Seller, the ACBR Entities or their respective Affiliates with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the Property, and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, that the proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and shall constitute full compensation for the damage to the Property, and Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwise. (b) In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effect, Seller shall assign and turn over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effect, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder.

Insurance Casualty and Condemnation. (a) If, before the Closing, the Property is damaged by fire or other casualty, and such damage (i) does not result in an ACBR a Property Material Adverse Effect, or (ii) does not result in either a loss of access for a material amount of time to the Property or a loss of more than thirty percent (30%) of the Purchase Price (“Casualty Termination Event”), then, Seller shall either promptly repair or replace such damaged Property to the condition it was in immediately prior to such casualty, loss or damage. In the event it is not feasible to complete the repair or replacement prior to the Closing Date, the Closing shall proceed as scheduled and Seller shall, as of the Closing Date, (i) promptly pay to Buyer all insurance proceeds received by Seller, the ACBR Entities Seller or their respective its Affiliates with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the Property, Property and (ii) assign to Buyer all rights of Seller, the ACBR Entities Seller and their respective its Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, loss provided, that the proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any payment or reimbursement (but not subject to any applicable deductibles and co-payment provisions provisions, which shall be the responsibility of Seller and shall be paid to Buyer or any payment applied to such repair or reimbursement replacement as applicable) and shall constitute full compensation for the damage to the Property, and Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwise. (b) In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effecta Casualty Termination Event, Seller shall assign and turn over all payments relative to Buyer, and Buyer such condemnation shall be entitled paid by Seller to receive and keepBuyer at the Closing (the “Condemnation Amount”), all awards for or the taking by condemnation and Buyer Purchase Price shall be deemed to have accepted reduced by the Property subject to the taking without reduction in the Purchase PriceCondemnation Amount. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effecta Casualty Termination Event, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 7.14 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effecta Casualty Termination Event, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder.

Insurance Casualty and Condemnation. (a) IfBorrower shall, before the Closingat its (or its Subsidiary's) sole cost and expense maintain or cause to be maintained, the Property is damaged policies of insurance in such amounts and as otherwise described in Annex E. Borrower shall notify Agent promptly of any occurrence causing a material loss or decline in value of any real or personal property and the estimated (or actual, if available) amount of such loss or decline, except as specified otherwise on Annex E. Borrower irrevocably makes, constitutes and appoints Agent (and all officers, employees or agents designated by fire or other casualty, Agent) as Borrower's true and such damage does not result in an ACBR Material Adverse Effect, lawful agent and attorney-in-fact for the Closing shall proceed as scheduled and Seller shall, as purpose during the continuation of the Closing Date, any Event of Default of (i) making, settling and adjusting claims relating to the Collateral under the "All Risk" policies of insurance, (ii) endorsing the name of Borrower on any check, draft, instrument or other item of payment for the proceeds of such "All Risk" policies of insurance relating to the Collateral, and (iii) making all determinations with respect to any settlements or adjustments referred to in clause (i) above. In the event Borrower at any time or times hereafter shall fail to obtain or maintain (or fail to cause to be obtained or maintained) any of the policies of insurance required above or to pay any premium in whole or in part relating thereto, Agent or Lenders, without waiving or releasing any Obligations or Default hereunder, and after notice from Agent to Borrower, may at any time or times thereafter (but shall not be obligated to) obtain and maintain such policies of insurance and pay such premium and take any other action with respect thereto which Agent or Lenders deem advisable. All sums so disbursed, including attorneys' fees, court costs and other charges related thereto, shall be payable, on demand, by Borrower to Agent on behalf of Lenders and shall be additional Obligations hereunder secured by the Collateral; provided, however, that if and to the extent Borrower fails to promptly pay any of such sums upon Agent's demand therefor, Agent is authorized to, and at its option may, make or cause to Buyer all insurance proceeds received be made Revolving Credit Advances on behalf of Borrower for payment thereof, even if the making of any such Revolving Credit Advance causes the outstanding balance of the Revolving Credit Loan to exceed the Borrowing Availability, and Borrower agrees that the making of any such Advance in excess of the Borrowing Availability shall constitute an automatic Event of Default, unless Borrower repays such Advance within one (1) Business Day after demand by Seller, Agent. Any such Revolving Credit Advance shall be deemed to be a Revolving Credit Advance for purposes of this Agreement notwithstanding the ACBR Entities or their respective Affiliates fact that the conditions contained in Section 2.2 have not been satisfied with respect to such damageRevolving Credit Advance. (b) Upon the occurrence and during the continuance of an Event of Default, destruction Agent and Required Lenders shall have the right, upon review of Borrower's risk profile, to require additional forms and limits of insurance to, in Agent's or other lossRequired Lenders' sole opinion, less any proceeds applied adequately protect the interests of Agent and Lenders. Borrower shall, if so requested by Agent, deliver to the physical restoration Agent, as often as Agent may request, a report of a reputable insurance broker satisfactory to Agent with respect to its insurance policies. (c) Borrower shall deliver to Agent its endorsements and those of the PropertyMaterial Subsidiaries constituting Unrestricted Subsidiaries to (i) "All Risk" and business interruption insurance naming Agent on behalf of Lenders as loss payee, and (ii) assign general liability and other liability policies naming Agent and each Lender as additional insureds as their interests may appear. (i) Subject to Buyer clause (ii) below, Borrower hereby directs all rights present and future insurers under its "All Risk" policies of Seller, the ACBR Entities and their respective Affiliates against third parties (other than against its insurance carriers) with respect relating to any causes Collateral or any real property owned by Borrower whether or not constituting Collateral (collectively, "Property") to pay all proceeds payable thereunder directly to Agent on behalf of actionLenders, and all condemnation and casualty proceeds and proceeds of any taking relating to the Property shall be applied, as follows: (x) in the event that such proceeds arise from assets of Borrower which do not constitute Collateral and as to which no Liens have been granted to another holder of Borrower's Indebtedness, such proceeds resulting from one or a series of related events up to $1,000,000 may be retained by Borrower and such proceeds resulting from one or a series of related events in excess of $1,000,000 shall be applied to the repayment of the Obligations; (y) in the event that such proceeds arise from the Collateral, such proceeds shall be applied to the repayment of the Obligations; and (z) in the event that such proceeds arise from assets of Borrower which do not constitute Collateral but constitute collateral as to which a Lien has been granted to another holder of Borrower's Indebtedness to the extent such Lien and the Indebtedness secured thereby are permitted under this Agreement, such proceeds may be paid by Borrower to such holder as its interests may appear and any excess proceeds shall be applied as described in clause (x) above. (ii) So long as there exists no Event of Default, Borrower may collect any and all awards, payments or other proceeds of any loss, damage or destruction to any of its Property or condemnation or taking of any of its Property and use such proceeds, or any part thereof, within one (1) year of receipt thereof, to replace, repair or restore such Property as provided in paragraph (f) below. Upon the occurrence and during the continuance of an Event of Default, Agent on behalf of Lenders is hereby authorized to adjust losses and collect all insurance proceeds directly. If, notwithstanding the provisions hereof which require that Agent be a loss payee, a check or other instrument from an insurer is made payable to Borrower or Borrower and Agent jointly, Agent upon the occurrence and during the continuance of an Event of Default may endorse Borrower's name thereon and take such other action as Agent may elect to obtain the proceeds thereof. (e) Borrower shall promptly notify Agent of (i) any loss, damage, or destruction in excess of $1,000,000 to any Collateral and (ii) any loss, damage, or destruction in excess of $2,500,000 to any other Property or arising from its use, whether or not litigation has commenced as covered by insurance. Borrower shall promptly upon learning of the Closing Date, in connection with such damage, destruction institution of any proceeding for the condemnation or other losstaking of any of its Property, provided, that notify Agent of the proceeds pendency of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and shall constitute full compensation for the damage to the Propertyproceeding, and Seller shall have no responsibility for restoration or repair of the Property or agrees that Agent may participate in any resultant loss, directly, such proceeding and Borrower from time to time will deliver to Agent all instruments reasonably requested by subrogation, or otherwiseAgent to permit such participation. (bf) In the event Any Property which is to be replaced, repaired or restored pursuant to paragraph (d) above shall be replaced, repaired or restored with materials and workmanship of substantially as good a condemnation proceeding quality as existed before such loss or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Datetaking, and Borrower shall commence such proceeding does not result in an ACBR Material Adverse Effectreplacement, Seller repair or restoration as soon as practicable and proceed diligently with it until completion to Agent's reasonable satisfaction; provided, however, that if any such replaced Property constitutes Collateral, Agent shall assign and turn over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed to have accepted the Property subject to the taking without reduction a perfected first priority security interest in the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effect, Buyer shall have the option, related replacement Property. Upon request by written notice to Seller and the Escrow Agent, Borrower shall provide to either (i) proceed Agent written progress reports, other information and evidence of its compliance with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunderforegoing.

Insurance Casualty and Condemnation. (a) If, before the Closing, the Property one or more Properties is damaged by fire or other casualty, and such damage does together with all other casualties occurring prior to the Closing do not individually or in the aggregate result in an ACBR a Total Material Adverse Effect, then the Closing shall proceed as scheduled and the applicable Seller shall, as of at the Closing DateClosing, (i) promptly pay to Buyer all insurance proceeds received by Seller, the ACBR Entities or their respective Affiliates such Seller to date with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the such Property; provided, that if such insurance proceeds are not sufficient to fully repair or restore such Property, such Seller shall pay Buyer an additional amount equal to such shortfall (the "Shortfall Amount") and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates such Seller against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, ; provided, however, that any recovery of money from any third Person pursuant to the proceeds of such insurance rights conveyed under this subsection (ii) shall be subject paid, following the payment of Buyer's out of pocket fees and expenses, to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and Seller until such Seller has been repaid the Shortfall Amount. The obligations of each Seller pursuant to the prior sentence shall constitute full compensation for the damage to the such Property, and after the Closing such Seller shall have no responsibility for restoration or repair of the its Property or any resultant loss, directly, by subrogation, or otherwise. (b) . In the event a condemnation proceeding that any casualty or payment in lieu of condemnation occurs relative to any part of the Property casualties occurring prior to the Closing Dateindividually or in the aggregate, and such proceeding does not result results in an ACBR a Total Material Adverse Effect, Seller then Buyer shall assign and turn over have fifteen (15) days to exercise its termination right under Section 10.1(h) hereof; provided, however, that, if requested by Buyer, the applicable Seller(s) and Buyer shall be entitled discuss and consult in good faith for a period of up to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed thirty (30) days after any such casualty to have accepted the Property subject discuss whether such casualty (individually or together with any prior casualties) constitutes to the taking without reduction in the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Total Material Adverse Effect, and after any such period expires, Buyer shall have the option, by written notice fifteen (15) days to Seller and the Escrow Agent, exercise its termination right pursuant to either (iSection 10.1(h) proceed hereof with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded respect to Buyer and Buyer shall have no further liability or obligations hereundersuch casualty.

Insurance Casualty and Condemnation. (a) If, before the Closing, one or both of the Casino Property is damaged by fire or other casualty, and such Traymore Site suffer damage that does not result in an ACBR Material Adverse Effecta Casualty Termination Event, then the Closing shall proceed as scheduled and Seller Flamingo or Boardwalk, applicable, shall, as of the Closing Date, (i) promptly pay to the applicable Buyer all insurance proceeds received by Seller, the ACBR Entities such Seller or their respective its Affiliates with respect to such damage, destruction or other loss, less any proceeds applied to the any physical restoration of the Property, applicable Property and (ii) assign to the applicable Buyer all rights of Seller, the ACBR Entities such Seller and their respective its Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, provided that the proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any payment or reimbursement (but not subject to any applicable deductibles and co-payment provisions provisions, which shall be the responsibility of the applicable Seller and shall be paid to the applicable Buyer or any payment applied to such repair or reimbursement replacement as applicable) and shall constitute full compensation for the damage to the Property, and such Seller shall have no responsibility for restoration or repair of the applicable Property or any resultant loss, directly, by subrogation, or otherwise. For the avoidance of doubt, nothing contained in this Section 7.14(a) shall restrict the ability of Buyers to seek indemnification from the applicable Seller as provided in Article X hereof. In the event of damage that does not result in a Casualty Termination Event, between the date of the casualty and the Closing, the applicable Buyer will have the right to consult with Seller regarding negotiations with Seller’s insurance carriers and to review and consult with Seller with respect to any repairs (including the cost thereof) to be made prior to or after Closing. After Closing, the applicable Buyer shall have the right to negotiate and settle with any insurance carrier, provided that the applicable Seller shall have the right to consult with Buyer with respect to such negotiations or settlements. (b) In the event a Casualty Termination Event occurs prior to the Closing Date, Buyers shall have the option, by written notice to both Sellers and the Escrow Agent within ten (10) days of the occurrence of such Casualty Termination Event, to exercise their termination right under Section 9.1(g) hereof; provided, however, that, if requested by Sellers, Sellers and Buyers shall discuss and consult in good faith for a period of up to thirty (30) days after any such casualty to discuss whether such casualty (individually or together with any prior casualties) constitutes a Total Material Adverse Effect, and after any such period expires, Buyers shall have fifteen (15) days to exercise its termination right pursuant to Section 9.1(g) hereof with respect to such casualty. (c) In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Casino Property or Traymore Site prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effecta Condemnation Termination Event, Seller shall assign and turn over all payments relative to Buyer, and Buyer such condemnation shall be entitled paid by the applicable Seller, or the rights to receive and keep, all awards for the taking by condemnation and Buyer such payments shall be deemed to have accepted the Property subject assigned, to the taking without reduction in applicable Buyer at the Closing (the “Condemnation Amount”), or, at the applicable Seller’s election, the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effect, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit Price shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunderreduced by the Condemnation Amount.

Insurance Casualty and Condemnation. (a) If6.15.1 Seller’s fire and casualty insurance and other insurance policies will be cancelled by Seller or any of its Affiliates as of or after the Closing Date, and any refunded premiums shall be retained by Seller. Buyer will be solely responsible for acquiring and placing its casualty insurance, business interruption insurance, liability insurance and other insurance policies for periods after the Closing. Subject to Section 6.15.3, Buyer will assume the risk of loss of the Property and the Purchased Assets upon the Closing, and risk of such loss shall remain with Seller at all times prior to the Closing, provided, that if, before the Closing, the Property is damaged by fire or other casualty, and such damage (i) does not result in an ACBR a Property Material Adverse EffectEffect or (ii) does not result in a Casualty Termination Event, then Seller shall either promptly repair or replace such damaged Property to the condition it was in immediately prior to such casualty, loss or damage. In the event it is not feasible to complete the repair or replacement prior to the Closing Date, the Closing shall proceed as scheduled and Seller shall, as of the Closing Date, (i) promptly shall pay over to Buyer all insurance proceeds received by Seller, the ACBR Entities or their respective Affiliates amount of any deductible with respect to such damage, destruction or other loss, less any insurance proceeds applied and at the Closing Seller shall assign and turn over to the physical restoration of the PropertyBuyer, and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, that the proceeds of such insurance shall be subject entitled to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions keep, all insurance proceeds or any payment or reimbursement and shall constitute full compensation for the damage to the Property, and Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwiserights thereto. (b) 6.15.2 In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effecta Casualty Termination Event, all rights to payments relative to such condemnation shall be assigned by Seller to Buyer at the Closing (the “Condemnation Amount”) and all payments actually received by Seller on account of such condemnation shall assign and turn be paid over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. (c) 6.15.3 In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effecta Casualty Termination Event, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effecta Casualty Termination Event, or (ii) terminate this Agreement Agreement, whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder; provided that the foregoing shall not relieve Buyer for liability for any breach of this Agreement by Buyer accruing prior to such termination of this Agreement.

Insurance Casualty and Condemnation. 46 (a) IfBorrower shall, before the Closingat its (or its Subsidiary's) sole cost and expense maintain or cause to be maintained, the Property is damaged policies of insurance in such amounts and as otherwise described in Annex E. Borrower shall notify Agent promptly of any occurrence causing a material loss or decline in value of any real or personal property and the estimated (or actual, if available) amount of such loss or decline, except as specified otherwise on Annex E. Borrower irrevocably makes, constitutes and appoints Agent (and all officers, employees or agents designated by fire or other casualty, Agent) as Borrower's true and such damage does not result in an ACBR Material Adverse Effect, lawful agent and attorney-in-fact for the Closing shall proceed as scheduled and Seller shall, as purpose during the continuation of the Closing Date, any Event of Default of (i) making, settling and adjusting claims relating to the Collateral under the "All Risk" policies of insurance, (ii) endorsing the name of Borrower on any check, draft, instrument or other item of payment for the proceeds of such "All Risk" policies of insurance relating to the Collateral, and (iii) making all determinations with respect to any settlements or adjustments referred to in clause (i) above. In the event Borrower at any time or times hereafter shall fail to obtain or maintain (or fail to cause to be obtained or maintained) any of the policies of insurance required above or to pay any premium in whole or in part relating thereto, Agent or Lenders, without waiving or releasing any Obligations or Default hereunder, and after notice from Agent to Borrower, may at any time or times thereafter (but shall not be obligated to) obtain and maintain such policies of insurance and pay such premium and take any other action with respect thereto which Agent or Lenders deem advisable. All sums so disbursed, including attorneys' fees, court costs and other charges related thereto, shall be payable, on demand, by Borrower to Agent on behalf of Lenders and shall be additional Obligations hereunder secured by the Collateral; provided, however, that if and to the extent Borrower fails to promptly pay any of such sums upon Agent's demand therefor, Agent is authorized to, and at its option may, make or cause to Buyer all insurance proceeds received be made Revolving Credit Advances on behalf of Borrower for payment thereof, even if the making of any such Revolving Credit Advance causes the outstanding balance of the Revolving Credit Loan to exceed the Borrowing Availability, and Borrower agrees that the making of any such Advance in excess of the Borrowing Availability shall constitute an automatic Event of Default, unless Borrower repays such Advance within one (1) Business Day after demand by Seller, Agent. Any such Revolving Credit Advance shall be deemed to be a Revolving Credit Advance for purposes of this Agreement notwithstanding the ACBR Entities or their respective Affiliates fact that the conditions contained in Section 2.2 have not been satisfied with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the Property, and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, that the proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and shall constitute full compensation for the damage to the Property, and Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwiseRevolving Credit Advance. (b) In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effect, Seller shall assign and turn over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effect, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder.

Insurance Casualty and Condemnation. (a) If, before the Closing, the Property one or more Properties is damaged by fire or other casualty, and such damage does together with all other casualties occurring prior to the Closing do not individually or in the aggregate result in an ACBR a Total Material Adverse Effect, then the Closing shall proceed as scheduled and the applicable Seller shall, as of at the Closing DateClosing, (i) promptly pay to Buyer all insurance proceeds received by Seller, the ACBR Entities or their respective Affiliates such Seller to date with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the such Property; provided, that if such insurance proceeds are not sufficient to fully repair or restore such Property, such Seller shall pay Buyer an additional amount equal to such shortfall (the “Shortfall Amount”) and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates such Seller against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, ; provided, however, that any recovery of money from any third Person pursuant to the proceeds of such insurance rights conveyed under this subsection (ii) shall be subject paid, following the payment of Buyer’s out of pocket fees and expenses, to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and Seller until such Seller has been repaid the Shortfall Amount. The obligations of each Seller pursuant to the prior sentence shall constitute full compensation for the damage to the such Property, and after the Closing such Seller shall have no responsibility for restoration or repair of the its Property or any resultant loss, directly, by subrogation, or otherwise. (b) . In the event a condemnation proceeding that any casualty or payment in lieu of condemnation occurs relative to any part of the Property casualties occurring prior to the Closing Dateindividually or in the aggregate, and such proceeding does not result results in an ACBR a Total Material Adverse Effect, Seller then Buyer shall assign and turn over have fifteen (15) days to exercise its termination right under Section 10.1(h) hereof; provided, however, that, if requested by Buyer, the applicable Seller(s) and Buyer shall be entitled discuss and consult in good faith for a period of up to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed thirty (30) days after any such casualty to have accepted the Property subject discuss whether such casualty (individually or together with any prior casualties) constitutes to the taking without reduction in the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Total Material Adverse Effect, and after any such period expires, Buyer shall have the option, by written notice fifteen (15) days to Seller and the Escrow Agent, exercise its termination right pursuant to either (iSection 10.1(h) proceed hereof with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded respect to Buyer and Buyer shall have no further liability or obligations hereundersuch casualty.

Insurance Casualty and Condemnation. (a) Prior to the Closing and notwithstanding the pendency of this Agreement, the entire risk of loss or damage by earthquake, hurricane, tornado, flood, landslide, fire, acts of war, terrorism, terrorist activities or other casualty shall be borne and assumed by Seller. If, before prior to the Closing, any portion of the Property is damaged by fire earthquake, hurricane, tornado, flood, landslide, fire, acts of war, terrorism, terrorist activities or other casualty, and such casualty, destruction, loss or damage does not result in an ACBR Material Adverse Effecta Casualty Termination Event, then Seller shall promptly repair or replace such damaged Property to substantially the same condition as, or better condition than, it was immediately prior to such casualty, destruction, loss or damage. In the event that it is not feasible to complete the repair or replacement prior to the Closing Date, the Closing shall proceed as scheduled and Seller shall, as of the Closing Date, (i) promptly pay to Buyer all insurance proceeds received by Seller, the ACBR Entities Seller or their respective its Affiliates to date with respect to such casualty, destruction, loss or damage, destruction or other loss, less any proceeds applied to the physical restoration of the Property; provided, that if such insurance proceeds are not sufficient for Buyer to repair or restore the Property to substantially the same condition as it was in immediately prior to such casualty, destruction, loss or damage, Seller shall pay Buyer an additional amount equal to such shortfall (the “Shortfall Amount”); and provided, further, that if any such insurance proceeds remain unused after Buyer has repaired or restored the Property to substantially the same condition as it was in immediately prior to such casualty, destruction, loss or damage, then Buyer shall remit to Seller an amount equal to such remaining unused insurance proceeds; and (ii) assign to Buyer all rights of Seller, the ACBR Entities Seller and their respective its Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such casualty, destruction, loss or damage; provided, destruction or other loss, providedhowever, that the proceeds of such insurance shall not be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions provisions, which shall be the responsibility of Seller and shall be paid to Buyer or applied to such repair or replacement as applicable; and provided, further, that any recovery of money from any third Person pursuant to the rights conveyed under this subsection (ii) shall be paid, following the payment or reimbursement of Buyer’s out of pocket fees and expenses, to Seller until Seller has been repaid the Shortfall Amount. The obligations of Seller pursuant to the prior sentence shall constitute full compensation for the damage to the Property, and and, after the Closing, Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwise. (b) If, prior to the Closing, any portion of the Property is damaged by earthquake, hurricane, tornado, flood, landslide, fire, acts of war, terrorism, terrorist activities or other casualty, and such casualty, destruction, loss or damage results, individually or in the aggregate, in a Casualty Termination Event, then Buyer shall have fifteen (15) days from the date upon which it receives a notice from Seller indicating that a Casualty Termination Event may have occurred to exercise its termination right under Section 9.1(g) hereof; provided, however, that, if requested by Buyer, Seller and Buyer shall discuss and consult in good faith for a period of up to thirty (30) days after any such casualty, destruction, loss or damage to determine whether such casualty, destruction, loss or damage (individually or together with any prior casualties) actually constitutes a Casualty Termination Event; provided, further, that if Buyer makes such request, Buyer shall have an additional fifteen (15) days after the expiration of such period to exercise its termination right under Section 9.1(g) hereof with respect to such casualty. In the event that Buyer elects not to exercise its termination right under this Section 7.15(b) and Section 9.1(g) hereof, then the provisions of Section 7.15(a) hereof shall apply as if such casualty, destruction, loss or damage did not result in a condemnation proceeding Casualty Termination Event. (c) If, prior to the Closing, all or any Material Portion of the Property is taken by condemnation, eminent domain, or payment in lieu of condemnation occurs relative (or is the subject of a pending or contemplated taking which has not been consummated), Seller shall immediately notify Buyer of such fact. In such event, Buyer shall have the option to any part exercise its termination right under Section 9.1(g) hereof upon written notice to Seller given not later than thirty (30) days after Buyer’s receipt of such notice from Seller. If Buyer does not elect to terminate this Agreement or if the taking is not of a Material Portion of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse EffectProperty, Seller shall assign and turn over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the such taking by condemnation and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effect, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder.

Insurance Casualty and Condemnation. (a) IfBuyer will assume the risk of loss of the Property and the Purchased Assets upon the Closing, and risk of such loss shall remain with Seller at all times prior to the Closing, provided, that if, before the Closing, the Property is damaged by fire or other casualty, and such damage (i) does not result in an ACBR a Property Material Adverse EffectEffect or (ii) does not result in a Casualty Termination Event, then Seller shall either promptly repair or replace such damaged Property to the condition it was in immediately prior to such casualty, loss or damage. In the event it is not feasible to complete the repair or replacement prior to the Closing Date, the Closing shall proceed as scheduled and Seller shall, as of promptly as possible after the Closing Date, either (i) promptly repair or replace such damaged Property to the condition it was in immediately prior to such casualty, loss or damage or (ii) pay to Buyer all insurance proceeds received by Seller, amounts necessary to fully repair or replace such damaged Property to the ACBR Entities or their respective Affiliates with respect condition it was in immediately prior to such casualty, loss or damage, destruction or other loss, less any proceeds applied to the physical restoration of the Property, and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, that the proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and shall constitute full compensation for the damage to the Property, and Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwise. (b) In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effecta Casualty Termination Event, Seller shall assign and turn over all payments relative to Buyer, and Buyer such condemnation shall be entitled paid by Seller to receive and keepBuyer at the Closing (the “Condemnation Amount”), all awards for or the taking by condemnation and Buyer Purchase Price shall be deemed to have accepted reduced by the Property subject to the taking without reduction in the Purchase PriceCondemnation Amount. (c) In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effecta Casualty Termination Event, Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this Section 6.13 7.15 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effecta Casualty Termination Event, or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder; provided that the foregoing shall not relieve Buyer for liability for any breach of this Agreement by Buyer accruing prior to such termination of this Agreement.

Insurance Casualty and Condemnation. (a) If, before the Closing, the Property is Purchased Assets are damaged by fire or other casualty, casualty and such damage does not result in an ACBR Material Adverse Effectis less than $100,000, the Closing shall proceed as scheduled and Seller the Company shall, as of the Closing DateClosing, (i) promptly pay to Buyer Purchaser all insurance proceeds received by Seller, the ACBR Entities Company or their respective its Affiliates with respect to such damage, destruction or other loss, less any proceeds applied to the physical restoration of the Property, Purchased Assets and (ii) assign to Buyer Purchaser all rights of Seller, the ACBR Entities Company and their respective its Affiliates against third parties (other than against including its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, that the and such proceeds of such insurance shall be subject to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions or any payment or reimbursement and shall constitute full compensation for the damage to the PropertyPurchased Assets, and Seller the Company shall have no responsibility for restoration or repair of the Property Purchased Assets or any resultant loss, directly, by subrogation, or otherwise. (b) In the event that a condemnation proceeding or payment in lieu of condemnation occurs relative in relation to any part of the Property Purchased Assets prior to the Closing Date, Date and such proceeding does not result in an ACBR Material Adverse Effectpayment is less than $100,000, Seller the Closing shall proceed as scheduled and the Company shall assign and turn over to BuyerPurchaser effective as of the Closing, and Buyer Purchaser shall be entitled to receive and keep, all awards for the taking by condemnation and Buyer Purchaser shall be deemed to have accepted the Property Purchased Assets subject to the taking without reduction in the Purchase Price. (c) If, before the Closing, the Purchased Assets are damaged by fire or other casualty and such damage is greater than $100,000 and (i) the Seller has failed to cure such damage within thirty (30) days from the date of such fire or other casualty; or (ii) in the case of damage that cannot reasonably be cured within thirty (30) days and the Seller has commenced and is diligently and continuously prosecuting the cure during such thirty (30) day period, the Seller has failed to cure such damage within ninety (90) days from the date of such fire or other casualty, then the Purchaser, at its sole option, may elect to (x) proceed with the Closing as scheduled, in which case Section 9.5(a) will apply; or (y) terminate this Agreement. (d) In the event that a casualty condemnation proceeding or payment in lieu of condemnation occurs in relation to any part of the Purchased Assets prior to the Closing Date that results in an ACBR Material Adverse Effectand such payment is greater than $100,000, Buyer shall have then the Purchaser, at its sole option, by written notice may elect to Seller and the Escrow Agent, to either (i) proceed with the Closing whereby the provisions of this as scheduled, in which case Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effect, 9.5(b) will apply; or (ii) terminate this Agreement whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunderAgreement.

Insurance Casualty and Condemnation. (a) If6.15.1 Seller’s fire and casualty insurance and other insurance policies will be cancelled by Seller or any of its Affiliates as of or after the Closing Date, and any refunded premiums shall be retained by Seller. Buyer will be solely responsible for acquiring and placing its casualty insurance, business interruption insurance, liability insurance and other insurance policies for periods after the Closing. Subject to Section 6.15.3, Buyer will assume the risk of loss of the Property and the Purchased Assets upon the Closing, and risk of such loss shall remain with Seller at all times prior to the Closing, provided, that if, before the Closing, the Property is damaged by fire or other casualty, and such damage (i) does not result in an ACBR a Property Material Adverse EffectEffect or (ii) does not result in a Casualty Termination Event, then Seller shall either promptly repair or replace such damaged Property to the condition it was in immediately prior to such casualty, loss or damage. In the event it is not feasible to complete the repair or replacement prior to the Closing Date, the Closing shall proceed as scheduled and Seller shall, as of the Closing Date, (i) promptly shall pay over to Buyer all insurance proceeds received by Seller, the ACBR Entities or their respective Affiliates amount of any deductible with respect to such damage, destruction or other loss, less any insurance proceeds applied and at the Closing Seller shall assign and turn over to the physical restoration of the PropertyBuyer, and (ii) assign to Buyer all rights of Seller, the ACBR Entities and their respective Affiliates against third parties (other than against its insurance carriers) with respect to any causes of action, whether or not litigation has commenced as of the Closing Date, in connection with such damage, destruction or other loss, provided, that the proceeds of such insurance shall be subject entitled to (and recovery thereon shall be reduced by the amount of) any applicable deductibles and co-payment provisions keep, all insurance proceeds or any payment or reimbursement and shall constitute full compensation for the damage to the Property, and Seller shall have no responsibility for restoration or repair of the Property or any resultant loss, directly, by subrogation, or otherwiserights thereto. (b) 6.15.2 In the event a condemnation proceeding or payment in lieu of condemnation occurs relative to any part of the Property prior to the Closing Date, and such proceeding does not result in an ACBR Material Adverse Effecta Casualty Termination Event, all rights to payments relative to such condemnation shall be assigned by Seller to Buyer at the Closing and all payments actually received by Seller on account of such condemnation shall assign and turn be paid over to Buyer, and Buyer shall be entitled to receive and keep, all awards for the taking by condemnation and Buyer shall be deemed to have accepted the Property subject to the taking without reduction in the Purchase Price. (c) 6.15.3 In the event a casualty or condemnation occurs prior to the Closing Date that results in an ACBR Material Adverse Effecta Casualty Termination Event, and Seller does not, in its discretion, cure such Casualty Termination Event within sixty (60) days of the occurrence of such event, then Buyer shall have the option, by written notice to Seller and the Escrow Agent, to either (i) proceed with the Closing Closing, whereby the provisions of this Section 6.13 shall govern as if the casualty or condemnation did not result in an ACBR Material Adverse Effecta Casualty Termination Event, or (ii) terminate this Agreement Agreement, whereby the Deposit shall be immediately refunded to Buyer and Buyer shall have no further liability or obligations hereunder.