Common use of Material Loss Clause in Contracts

Material Loss. For the purposes of Sections 10.2 and 10.3, "MATERIAL DAMAGE" shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to the Casualty will, in Seller's determination, exceed $250,000.00, whether or not such damage is covered by insurance. If, in Seller's determination, the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, terminate this Agreement by delivering written notice to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, at its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, either (a) terminate this Agreement by delivering written notice of same to Seller, or (b) waive its right of termination and proceed to close this transaction in accordance with the terms hereof without reduction to the Purchase Price (the "WAIVER OPTION"). Failure of Purchaser to deliver written notice of termination within said fifteen (15) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects to terminate this Agreement under this Section 10.2, the Earnest Money (less the 19 Independent Consideration) shall be returned to Purchaser and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise provided in Sections 5.3 and 6.4 hereof. If Purchaser elects the Waiver Option, then Seller shall repair the Improvements to substantially their condition prior to such damage.

Material Loss. For the purposes of Sections 10.2 and 10.3this Section 9.02, "MATERIAL DAMAGEMaterial Damage" shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to the Casualty will, in Seller's reasonable determination, equal or exceed $250,000.00, whether or not such damage is covered by insurance1,000,000. If, in Seller's reasonable determination, which determination shall be made as promptly as is practicable, the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, terminate this Agreement by delivering written notice to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof)the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, at as its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, either (a) terminate this Agreement by delivering written notice of same to Seller, Seller or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof without reduction to the Purchase Price (the "WAIVER OPTIONWaiver Option"). Failure of Purchaser to deliver written notice of termination within said fifteen (15) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects to terminate this Agreement under this Section 10.29.02, the Earnest Money (less the 19 Independent Consideration) Deposit shall be returned to Purchaser in accordance with Section 6.04 and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise provided in Sections 5.3 and 6.4 hereofthe Termination Surviving Obligations. If Purchaser elects the Waiver Option, then then, at its option, Seller shall (a) repair the Improvements to substantially their condition prior to such damage, if and to the extent Seller reasonably determines that repairs cannot be delayed until Closing, subject to Section 9.04 or (b) deliver to Purchaser at Closing an amount equal to the insurance deductible and assign to Purchaser all of its rights in the resulting casualty insurance proceeds (but the amount of such deductible plus insurance proceeds shall not exceed the lesser of (i) the cost of repair or (ii) the Purchase Price). In the event Seller assigns insurance proceeds, (A) Purchaser may notify all appropriate insurance companies of its interest in the insurance proceeds, and (B) all casualty insurance proceeds payable as a result of the loss (subject to the limitation herein described) shall be assigned to Purchaser at Closing.

Material Loss. For the purposes of Sections 10.2 Section 9.2 and 10.39.3, "MATERIAL DAMAGEMaterial Damage" shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to the Casualty will, in Seller's determination, exceed $250,000.00the greater of $ 1,000,000.00 or twenty-five percent (25%) of the Purchase Price, whether or not such damage is covered by insurance. If, in Seller's determination, the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, terminate this Agreement by delivering written notice to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 Section 3.3 and 6.4 7.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, at its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, either (a) terminate this Agreement by delivering written notice of same to Seller, or (b) waive its right of termination and proceed to close this transaction in accordance with the terms hereof without reduction (clause (b) shall be referred to the Purchase Price (herein as the "WAIVER OPTIONWaiver Option"). Failure of Purchaser to deliver written notice of termination within said fifteen (15I 5) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects to terminate this this-Agreement under this Section 10.29.2, the Earnest Money (less the 19 Independent Consideration) shall be returned xx xxxurned to Purchaser upon Seller's receipt of the Documents and Purchaser's Information and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise provided in Sections 5.3 3.3 and 6.4 7.4 hereof. If Purchaser elects the Waiver Option, then at the option of Seller, (a) Seller shall repair the Improvements to substantially their condition prior to such damage, or (b) Seller shall deliver to Purchaser an amount equal to the deductible and assign to Purchaser all of its rights in the resulting casualty insurance proceeds [but the amount of such deductible plus insurance proceeds shall not exceed the lesser of (i) the cost of repair or (ii) the Purchase Price] and a pro rata share of the rental or business loss proceeds, if any, from the insurance coverage. In the event Seller elects to assign insurance proceeds, (A) Purchaser may notify all appropriate insurance companies of its interest in the insurance proceeds, and (B) all casualty insurance proceeds payable as a result of the loss (subject to the limitation herein described) and Purchaser's pro rata share of any rental or business loss proceeds shall be assigned to Purchaser at Closing.

Material Loss. For the purposes of Sections 10.2 and 10.3, "MATERIAL DAMAGE" shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to If the Casualty willRenovation Cost as determined pursuant to Section 12.12.1 exceeds, in Seller's determinationthe aggregate, exceed $250,000.00, whether then unless either party elects to pay the excess by Notice delivered to the other party within ten (10) Business Days after the date that the Casualty Renovation Cost is determined, Purchaser or not such damage is covered by insurance. If, in Seller's determination, the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, elect to terminate this Agreement by delivering written notice Notice delivered to Purchaser on or before Closingother party no later than five (5) Business Days after the expiration of the ten (10) Business Day period, in which case the Deposit shall be delivered to Purchaser, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, at its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, either (a) terminate this Agreement by delivering written notice of same to Seller, or (b) waive its right of termination and proceed to close this transaction in accordance with the terms hereof without reduction to the Purchase Price (the "WAIVER OPTION"). Failure of Purchaser to deliver written notice of termination within said fifteen (15) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects to terminate this Agreement under this Section 10.2, the Earnest Money (less the 19 Independent Consideration) shall be returned to Purchaser and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise provided for those obligations which expressly survive termination of this Agreement. If Seller elects to pay the excess, then Purchaser will receive a credit against the Purchase price in Sections 5.3 and 6.4 hereofthe amount of the Casualty Renovation Cost in excess of $250,000.00. If Purchaser elects to pay the Waiver Optionexcess or if Purchaser or Seller fails to timely send the Notice of its election to terminate this Agreement, then Closing shall take place as provided herein without reduction of the Purchase Price, at Closing Seller shall repair assign the Improvements insurance proceeds to substantially their condition prior Purchaser and credit Purchaser with the deductible under Seller’s casualty insurance policy, if applicable. If the process described in this Section 12.12.2 concludes after the date established as the Closing Date (as may be extended by Section 12.12.1), the Closing Date will be adjourned to such damageten (10) Business Days following the delivery of the Notice by either party electing to pay the excess or following the expiration of the time allowed for the parties to terminate this Agreement under this Section 12.12.2, without either party so terminating this Agreement, whichever is applicable.

Material Loss. For the purposes of Sections 10.2 and 10.3this Section 9.2, "MATERIAL DAMAGE" “Material Damage” shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to the Casualty will, in Seller's determination, will exceed $250,000.00500,000.00, whether or not such damage is covered by insurance. If, in Seller's determination, If the Improvements have sustained Material Damage by a Casualty, Seller Purchaser may, at its option, terminate this Agreement by delivering written notice to Seller within ten (10) days after delivery of the Casualty Loss Notice, in which event, the Xxxxxxx Money, including the Non-Refundable Deposit, shall be promptly returned to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, at its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, either (a) terminate this Agreement by delivering written notice of same to Seller, or (b) waive its right of termination and proceed to close this transaction in accordance with the terms hereof without reduction respect to the Purchase Price (the "WAIVER OPTION"Surviving Terms). Failure of Purchaser to deliver written notice of termination within said fifteen ten (1510) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Optionnot to terminate this Agreement. In the event Seller or Purchaser elects to terminate this Agreement under this Section 10.29.2, the Earnest Money (less Xxxxxxx Money, including the 19 Independent Consideration) Non-Refundable Deposit, shall be returned to Purchaser Purchaser, and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise provided in Sections 5.3 with respect to the Surviving Terms. In the event this Agreement is not terminated pursuant to the provisions of this Section 9.2, and 6.4 hereof. If Purchaser elects Seller has not fully repaired the Waiver Optiondamage prior to Closing, then Purchaser shall receive (a) a credit against the cash balance of the Purchase Price payable at Closing to the extent of payments received by or on behalf of Seller shall repair the Improvements to substantially their condition prior to the Closing Date and not previously expended on repairs (such damagerepairs to be evidenced by Seller delivering to Purchaser: (i) interim lien waivers from Seller's contractors and subcontractors performing such repairs, and (ii) reasonable evidence that all invoices for such repairs have been paid in full) under any applicable insurance policy or policies in effect with respect to the Property, (b) an assignment of Seller's rights to any payments which may be payable subsequent to the Closing Date under any applicable insurance policy or policies in effect with respect to the Property (or, if Seller’s insurer does not permit such policy and/or payments to be assigned to Purchaser, an estimated credit for such amounts, with later appropriate adjustments), (c) an assignment of Seller's rights to payments with respect to rents due subsequent to the Closing Date under any rental insurance policy or policies with respect to the Property, if any, and (d) a credit against the cash balance of the Purchase Price payable at the Closing in an amount equal to the aggregate amount of the deductibles with respect to all such insurance policies (the foregoing are collectively referred to herein as "Purchaser's Casualty Reimbursements").

Material Loss. For the purposes of Sections 10.2 and 10.3this Article IX, "MATERIAL DAMAGE" “Material Damage” shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to the Casualty will, in Seller's ’s and its insurance adjuster’s reasonable determination, exceed Three Hundred Fifty Thousand and 00/100 Dollars ($250,000.00350,000.00), whether or not such damage is covered by insurance. If, in Seller's determinationthe reasonable determination of Seller and its insurance adjuster, the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, terminate this Agreement by delivering written notice to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, at as its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, Notice (or on the Closing Date if sooner) either (a) terminate this Agreement by delivering written notice of same to Seller, or (b) waive its right of termination and proceed to close this transaction in accordance with the terms hereof without reduction hereof, in which event Seller shall assign to Purchaser all of its rights in the resulting casualty insurance proceeds (including any existing loss of rents insurance attributable to the Purchase Price period on and after Closing) and deliver to Purchaser an amount equal to the deductible applicable thereto (the "WAIVER OPTION"“Waiver Option”). Failure of Purchaser to deliver written notice of termination within said fifteen (15) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects to terminate this Agreement under this Section 10.29.2, the Earnest Xxxxxxx Money (less the 19 Independent Consideration) shall be returned to Purchaser and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise expressly provided in Sections 5.3 and 6.4 hereof. If Purchaser elects the Waiver Option, then Seller shall repair the Improvements to substantially their condition prior to such damageherein.

Material Loss. For the purposes of Sections 10.2 and 10.3this Section 9.02, "MATERIAL DAMAGEMaterial Damage" shall mean damage to the Improvements of such nature that the cost of restoring the same to their condition prior to the Casualty will, in Seller's reasonable determination, equal or exceed $250,000.00, whether or not such damage is covered by insurance1,000,000. If, in Seller's reasonable determination, which determination shall be made as promptly as is practicable, the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, terminate this Agreement by delivering written notice to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof)the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, at as its sole option, within fifteen (15) days after delivery of the Casualty Loss Notice, either (a) terminate this Agreement by delivering written notice of same to Seller, Seller or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof without reduction to the Purchase Price (the "WAIVER OPTIONWaiver Option"). Failure of Purchaser to deliver written notice of termination within said fifteen (15) day period shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects to terminate this Agreement under this Section 10.29.02, the Earnest Money (less the 19 Independent Consideration) Deposit shall be returned to Purchaser in accordance with Section 6.04 and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except as otherwise provided in Sections 5.3 and 6.4 hereofthe Termination Surviving Obligations. If Purchaser elects the Waiver Option, then then, at its option, Seller shall (a) repair the Improvements to substantially their condition prior to such damage, if and to the extent Seller reasonably determines that repairs cannot be delayed until Closing, subject to Section 9.04 or (b) deliver to Purchaser at Closing an amount equal to the insurance deductible and assign to Purchaser all of its rights in the resulting casualty insurance proceeds (but the amount of such deductible plus insurance proceeds shall not exceed the lesser of (i) the cost of repair or (ii) the Purchase Price). In the event Seller assigns insurance proceeds, (A) Purchaser may notify all appropriate insurance companies of its interest in the insurance proceeds, and (B) all casualty insurance proceeds payable as a result of the loss (subject to the limitation herein described) shall be assigned to Purchaser at Closing.