Common use of Risk of Physical Loss Clause in Contracts

Risk of Physical Loss. Risk of physical loss to the Property will be borne by Seller prior to the Closing Date. If the Property is damaged by fire, flood, earthquake or other casualty and the cost of repair is reasonably determined by estimate given by a knowledgeable third party reasonably acceptable to Buyer and Seller to exceed One Million Dollars ($1,000,000.00), then Buyer may, at its option, elect not to acquire the Property by giving written notice of its intent not to purchase within the earlier of the Closing Date or the date that is thirty (30) calendar days after notice has been given to Buyer of such event (or, if it is not readily apparent that the cost of such repair will exceed the amount stated above, within thirty (30) calendar days after such determination has been communicated to Buyer), in which case this Agreement will be terminated and the Deposit shall be returned by Escrow Agent to Buyer without the need of any further authorization or consent of Seller. On receipt of the Deposit, Buyer shall have no further right, title or interest in the Property (or in any award, damages, insurance proceeds or other payment resulting from such damage or loss). If despite the occurrence of the foregoing, Buyer does not so elect to terminate this transaction, or if the cost to repair the damage from such casualty and to restore the Property to a condition equal to that existing immediately prior to such casualty is less than the amount stated in the second sentence hereof (determined in accordance with such sentence), then, providing the Property is insured at the time of such event and the damage is covered in whole or in part by insurance maintained by or for Seller (subject to reasonable and normal deductibles), Buyer will close the purchase in accordance with the terms and timetables herein stated, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating to such damage and the right to collect same (including all of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant). Any deductible under such insurance policies as are maintained by Seller to cover such damage and destruction, as well as the amount of any uninsured damage, shall be credited to Buyer at Closing and offset against the Purchase Price to be paid hereunder. If the cost of repair is estimated to exceed the amount stated above in this Section but Buyer nonetheless elects to proceed with its acquisition of the Property, Buyer will close the purchase in accordance with the terms and timetables herein stated, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating to such damage and the right to collect same (including all of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant), and Buyer shall receive a credit against the Purchase Price in the amount of any insurance deductible and the amount of any uninsured damage.

Risk of Physical Loss. Risk of physical loss (a) Buyer shall not be obligated to purchase the Property will be borne pursuant to this Agreement if the Improvements are damaged by Seller fire or other casualty prior to the Closing Date. If the Property is damaged by fire, flood, earthquake or other casualty Date and the cost to repair or restore such damage (“Restoration Cost") would, in the reasonable good faith estimate of repair is an independent architect reasonably determined selected by estimate given by a knowledgeable third party reasonably acceptable to Buyer and Seller (“Independent Architect"), exceed in the aggregate a sum equal to exceed One Million Dollars ($1,000,000.00) (the “Damage Threshold"). (b) In the event of the occurrence of any such fire or casualty, Seller shall as soon as reasonably practical after occurrence of the same, but not later than one business day prior to the Closing Date, notify Buyer in reasonable detail of such event (“Casualty Event"). (c) If the damage to the Improvements resulting from such Casualty Event is less than the Damage Threshold, Buyer and Seller shall proceed to Closing and Seller shall transfer and assign to Buyer all insurance proceeds and all rights to receive insurance proceeds by reason of such damage through escrow at the Closing (together with the amount of any deductibles payable with respect to such Casualty Event), then other than such proceeds expended prior to the Closing in restoration and repair by Seller, and Buyer shall proceed to close the transaction contemplated hereby without credit or offset against or reduction of the Purchase Price. (d) If the damage to the Improvements resulting from such Casualty Event exceeds the Damage Threshold, Buyer may, at its option, elect not to acquire the Property either terminate this Agreement, by giving written notice of such termination (“Damage Termination Notice") to Seller within ten (10) days of Buyer’s receipt of written notice of such Casualty Event from Seller, or elect to proceed with its intent not to purchase within the earlier of the Closing Date or the date that is thirty (30) calendar days after notice has been given to Buyer of such event (or, if it is not readily apparent that the cost of such repair will exceed the amount stated above, within thirty (30) calendar days after such determination has been communicated to Buyer)Property hereunder, in which case this Agreement will be terminated event Seller shall transfer and the Deposit shall be returned by Escrow Agent to Buyer without the need of any further authorization or consent of Seller. On receipt of the Deposit, Buyer shall have no further right, title or interest in the Property (or in any award, damages, insurance proceeds or other payment resulting from such damage or loss). If despite the occurrence of the foregoing, Buyer does not so elect to terminate this transaction, or if the cost to repair the damage from such casualty and to restore the Property to a condition equal to that existing immediately prior to such casualty is less than the amount stated in the second sentence hereof (determined in accordance with such sentence), then, providing the Property is insured at the time of such event and the damage is covered in whole or in part by insurance maintained by or for Seller (subject to reasonable and normal deductibles), Buyer will close the purchase in accordance with the terms and timetables herein stated, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating and all rights to receive insurance proceeds by reason of such damage and through escrow at the right to collect same Closing (including all of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant). Any deductible under such insurance policies as are maintained by Seller to cover such damage and destruction, as well as together with the amount of any uninsured damage, shall be credited to Buyer at Closing and offset against the Purchase Price to be paid hereunder. If the cost of repair is estimated to exceed the amount stated above in this Section but Buyer nonetheless elects to proceed deductibles payable with its acquisition of the Property, Buyer will close the purchase in accordance with the terms and timetables herein stated, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating respect to such damage Casualty Event), other than proceeds expended prior to the Closing in restoration and the right to collect same (including all of repair by Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant), and Buyer shall receive a proceed to close the transaction contemplated hereby without credit or offset against or reduction of the Purchase Price Price. If the right to receive any such insurance proceeds to be assigned to Buyer is not assignable by Seller to Buyer, Buyer may nevertheless elect to close the escrow, in which event Seller shall promptly deliver to Buyer the proceeds of any such insurance received by it following Closing (together with the amount of any insurance deductible deductibles payable with respect to such Casualty Event), except to the extent such proceeds are in reimbursement for restoration and repair costs incurred or to be incurred by Seller prior to Closing and Buyer shall proceed to close the transaction contemplated hereby without credit or offset against, or reduction of the Purchase Price. In the event that such damage shall occur and Buyer elects not to acquire the Property, then this Agreement shall terminate and, except for those indemnification and other obligations of the parties hereto which by their terms survive termination, all obligations of the parties hereto shall terminate and shall be of no further force or effect, and the amount Deposit and all Deposit Interest (less 50% of any uninsured damagethe Escrow Holder’s fees) shall be returned promptly to Buyer.

Risk of Physical Loss. Risk of physical loss Buyer shall be obligated to the acquire an Individual Property will be borne pursuant to this Agreement, notwithstanding that such Individual Property is damaged by Seller fire or other casualty prior to the Closing Date. If , provided that (i) such Individual Property can be repaired for less than ONE MILLION DOLLARS ($1,000,000.00) and the Property applicable damage does not materially and adversely affect access to parking or any of the Improvements located on such Individual Property, (ii) the cost to repair such damage is damaged covered by fireinsurance maintained by or for Seller, flood(iii) Seller assigns to Buyer all insurance proceeds, earthquake or other casualty than proceeds expended in restoration and repair by Seller and rental loss proceeds applied to rents accruing through the Close of Escrow, and (v) Seller credits to the account of Buyer in Escrow, the amount of any deductible under Seller’s insurance (not to exceed the cost of repair repair). Any such casualty is reasonably determined by estimate given by hereinafter referred to as a knowledgeable third party reasonably acceptable “non-material insured casualty”. In the event of casualty damage to Buyer and Seller to exceed One Million Dollars ($1,000,000.00)any Individual Property, then other than a non-material insured casualty, Buyer may, at its option, elect not either terminate this Agreement solely with respect to acquire the such Individual Property by giving written notice of such termination to Seller within ten (10) days of Buyer’s receipt of written notice of such casualty from Seller, in which event Buyer shall receive a return of a portion of the Deposit as calculated based upon a fraction the numerator of which is the Individual Property Allocation for the applicable Individual Property and the denominator of which is the Purchase Price, and this Agreement shall remain in full force and effect with respect to the remainder of the Property, or elect to proceed with its intent not purchase of the Property, in which event Seller shall transfer and assign to purchase within the earlier Buyer all insurance proceeds and all rights to receive insurance proceeds by reason of such damage through Escrow, other than proceeds expended in restoration and repair by Seller and rental loss proceeds applied to rents accruing through the Closing Date or the date that is thirty (30) calendar days after notice has been given to Buyer of such event (or, if it is not readily apparent that the cost of such repair will exceed the amount stated above, within thirty (30) calendar days after such determination has been communicated to and shall credit Buyer), ’s account in which case this Agreement will be terminated and the Deposit shall be returned by Escrow Agent to Buyer without the need of any further authorization or consent of Seller. On receipt of the Deposit, Buyer shall have no further right, title or interest in the Property (or in any award, damages, insurance proceeds or other payment resulting from such damage or loss). If despite the occurrence of the foregoing, Buyer does not so elect to terminate this transaction, or if the cost to repair the damage from such casualty and to restore the Property to a condition equal to that existing immediately prior to such casualty is less than the amount stated in the second sentence hereof (determined in accordance with such sentence), then, providing the Property is insured at the time of such event and the damage is covered in whole or in part by insurance maintained by or for Seller (subject to reasonable and normal deductibles), Buyer will close the purchase in accordance with the terms and timetables herein stated, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating to such damage and the right to collect same (including all of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant). Any deductible under such insurance policies as are maintained by Seller to cover such damage and destruction, as well as the amount of any uninsured damage, shall be credited deductible under Seller’s insurance (not to Buyer at Closing and offset against exceed the Purchase Price to be paid hereundercost of repair). If the cost of repair right to receive any such insurance proceeds to be assigned to Buyer is estimated not assignable by Seller to exceed the amount stated above in this Section but Buyer nonetheless elects to proceed with its acquisition of the PropertyBuyer, Buyer will close the purchase in accordance may either terminate this Agreement solely with the terms and timetables herein statedrespect to such Individual Property by giving written notice of such termination to Seller within ten (10) days of Buyer’s receipt of written notice from Seller that such insurance proceeds are not assignable, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating to such damage and the right to collect same (including all of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant), and event Buyer shall receive a credit against return of a portion of the Deposit as calculated based upon a fraction the numerator of which is the Individual Property Allocation for the applicable Individual Property and the denominator of which is the Purchase Price Price, or elect to close the Escrow, in which event Seller shall promptly deliver to Buyer the amount proceeds of any such insurance deductible received by it following the Close of Escrow, except to the extent such proceeds are in reimbursement for restoration and repair costs incurred or to be incurred by Seller prior to the amount Close of Escrow and/or rental loss proceeds for rents accruing prior to the Close of Escrow. Notwithstanding any uninsured damageprovision to the contrary in this Section 6.2, the Non-Refundable Portion shall remain unaffected by a partial termination hereunder and shall continue to be held by the Escrow Holder.

Risk of Physical Loss. Risk Prior to Seller’s delivery of physical possession of the Property to Buyer at the Closing, the risk of loss or damage to the Property will be borne by Seller prior to the Closing Dateshall remain upon Seller. If the Property is damaged by firesuffers damages as a result of any casualty prior to the Closing, flood, earthquake or other casualty and the cost of repair is reasonably determined by estimate given by a knowledgeable third party reasonably acceptable then Seller shall give written notice thereof to Buyer and Seller to exceed One Million Dollars ($1,000,000.00), then Buyer may, at its option, elect not to acquire the Property by giving written notice of its intent not to purchase within the earlier of the Closing Date or the date that is thirty (30) calendar days promptly after notice has been given to Buyer of such event (or, if it is not readily apparent that the cost of such repair will exceed the amount stated above, within thirty (30) calendar days after such determination has been communicated to Buyer), in which case this Agreement will be terminated and the Deposit shall be returned by Escrow Agent to Buyer without the need of any further authorization or consent of Seller. On receipt of the Deposit, Buyer shall have no further right, title or interest in the Property (or in any award, damages, insurance proceeds or other payment resulting from such damage or loss). If despite the occurrence of the foregoing, casualty. Buyer does not so can elect to terminate this transaction, or if the cost either (i) require Seller to repair the damage from such casualty and to restore the Property to a condition equal to that existing immediately prior to such casualty is less than the amount stated in the second sentence hereof (determined in accordance with such sentence), then, providing the Property is insured at the time of such event and the damage is covered in whole or in part by insurance maintained by or for Seller (subject to reasonable and normal deductibles), Buyer will close the purchase in accordance with the terms and timetables herein statedsame, in which event, at Closingthe Closing Date will be extended until such date as may be reasonably required to complete the repair and restoration, in which case, Seller will assign to Buyer Seller’s interest in shall retain all insurance proceeds relating to such damage and (provided that in no event will the right to collect same Closing be extended for more than ninety (including all 90) days); or (ii) accept the Property in its damaged condition, together with an assignment of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant). Any deductible under such insurance policies as are maintained by Seller to cover such damage and destruction, as well as the amount of any uninsured damage, shall be credited to Buyer at Closing and offset against the Purchase Price to be paid hereunder. If the cost of repair is estimated to exceed the amount stated above in this Section but Buyer nonetheless elects to proceed with its acquisition of the Property, Buyer will close the purchase in accordance with the terms and timetables herein stated, in which event, at Closing, Seller will assign to Buyer Seller’s interest in all insurance proceeds relating to such damage and the right to collect same (including all of Seller’s rights in any insurance maintained by any tenant of the Property or any contractor or subcontractor of Seller or of any tenant), and Buyer shall receive a credit against the Purchase Price in for the amount of any insurance deductible and any difference between the available insurance proceeds and the anticipated cost of repairing the damage (and Seller hereby agrees that it shall not settle or compromise any insurance claim affecting the Property without Buyer’s prior written consent, which consent shall not be unreasonably withheld or delayed); provided, however, that if as result of any casualty, (i) the Property sustains damage in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) or (ii) fifteen (15) or more apartments are rendered uninhabitable for three (3) or more consecutive days (regardless of the replacement costs for such apartments), then Buyer can elect to either: (i) require Seller to repair and restore same, in which event, the Closing Date will be extended until such date as may be reasonably required to complete the repair or restoration, in which case, Seller shall retain all insurance proceeds (provided that in no event will the Closing be extended more than ninety (90) days); (ii) accept the Property in its damaged condition, together with an assignment of Seller’s insurance proceeds and a credit against said Purchase Price for the amount of any uninsured damagedeductible and any difference between the available insurance proceeds and the anticipated cost of repairing the damage (and Seller hereby agrees that it shall not settle or compromise any insurance claim affecting the Property without Buyer’s prior written consent, which consent shall not be unreasonably withheld or delayed); or (iii) terminate this Agreement upon notice to Seller served within twenty (20) business days of such casualty. In the event of such termination, the Deposit shall be promptly returned to Buyer and thereafter neither party will have any further rights, remedies or obligations under this Agreement.