Destruction of Assets Prior to Closing. For purposes of this Agreement, damage or destruction to tangible personal property Assets and the Owned Real Property prior to or as of Closing shall be deemed a “Material Casualty” if, as reasonably determined by the parties, (i) the estimated cost to repair such damage or destruction in the aggregate (the “Aggregate Damage”) exceeds Fifteen Million Dollars ($15,000,000), or (ii) the damage or destruction to the tangible personal property Assets and the Owned Real Property materially impairs the operation of the Hospital. (a) If, prior to or as of the Closing Date, any portion of the tangible personal property Assets and Owned Real Property has suffered loss or damage on account of fire, flood, wind, hurricane, earthquake, accident, act of war, terrorist act, civil commotion or other cause or event (whether or not similar to the foregoing), and such casualty is a Material Casualty, Purchaser shall have the right to terminate this Agreement by giving written notice to Seller within ten (10) calendar days after the date Purchaser acquires knowledge that such casualty constitutes a Material Casualty. (b) If such damage or destruction is not a Material Casualty, the parties’ duties and obligations under this Agreement shall not be affected and the Closing shall proceed as scheduled; provided, however, that notwithstanding anything to the contrary in the Lease, Purchaser shall be entitled to receipt of all insurance proceeds payable in connection with such damage or shall receive a credit against the Purchase Price in the amount of such proceeds that are paid to Seller (except to the extent of any portion of self-insured proceeds payable by SRM under the Lease). (c) If such damage or destruction constitutes a Material Casualty, and Purchaser does not terminate this Agreement as provided in Section 9.1(a) above, the parties’ duties and obligations under this Agreement shall not be affected and the Closing shall proceed as scheduled, subject to the same proviso in subsection (b) above respecting treatment of insurance of proceeds and credit against Purchase Price, as applicable. (d) If Seller and Purchaser are unable to agree as to the amount of Aggregate Damage and/or whether a Material Casualty has occurred in connection with this Section 8.1, the amount of Aggregate Damage and/or determination whether a Material Casualty has occurred shall be determined by a mutually agreed upon loss consultant (the “Loss Consultant”). The Loss Consultant, acting as an expert and not as an arbitrator, shall determine the definitive amount of the Aggregate Damage or shall otherwise determine whether a Material Casualty has occurred, by selecting either the submission of Seller or the submission of Purchaser, without making any adjustment thereto, which selection shall occur no later than ten (10) days following the date the Loss Consultant has received the submission from each of Seller and Purchaser. The decision of the Loss Consultant shall be conclusive and binding as between Seller and Purchaser, and the costs of such review shall be borne by the party whose submission is not selected by the Loss Consultant. If the decision of the Loss Consultant will fall on a date that is after the Termination Date, then the Termination Date will be extended until ten (10) days after the date of the Loss Consultant’s decision.
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