Common use of Material Casualty Clause in Contracts

Material Casualty. If the Assets or any portion thereof is damaged or destroyed by fire or any other casualty prior to Closing (a “Casualty”), Owner shall give written notice of such Casualty to Lender and Buyer promptly after the occurrence of such Casualty. If the amount of the repair, restoration or replacement required by a Casualty equals or exceeds Two Million Dollars United States Dollars (US$2,000,000) (a “Material Casualty”), then Buyer shall have the right, in its sole discretion, to (i) terminate this Agreement in which event MFG shall pay the balance of the Deposit then held by MFG to Buyer and, in the event of a termination of this Agreement occurring after the Additional Deposit Funding Date, HMF shall also release to MFG the original stamped Agreement duly marked “cancelled” together with the Original Transfer Tax Receipt so as to allow MFG to invoke the Unwind Procedure and upon recovery of the Stamp Duty and Tax Refund, the Stamp Duty and Tax Refund shall be paid to Buyer, less the Lender’s Deposit Refund Amount, if any, which MFG shall pay to Lender, and Lender, Owner and Buyer shall have no further rights or obligations under this Agreement, except those which expressly survive such termination, or (ii) proceed to Closing, without terminating this Agreement, in which case Owner shall (A) credit the amount of the applicable insurance deductible against the Purchase Price, and (B) transfer and assign to Buyer all of Owner’s right, title and interest in and to all proceeds from all casualty and lost profits insurance policies maintained by Owner with respect to the Assets affected by such Casualty, except those proceeds allocable to lost profits for the period prior to the Closing; provided, however, that until such time as Buyer receives written confirmation from the applicable insurer, reasonably satisfactory to Buyer, acknowledging the assignment of such claim and agreeing to acknowledge Buyer as the insured under such policies for purposes of such claim, Owner shall continue to use commercially reasonable efforts, but at no material cost to Owner, to pursue the insurance proceeds thereunder on behalf of Buyer. Buyer shall make an election under this Section 10.1 by giving written notice to Owner on or before twenty (20) days after Owner’s delivery to Buyer of written notice of such Casualty. If Buyer fails to make an election under this Section 10.1 within such twenty (20) day time period, Buyer shall be conclusively deemed to have elected to proceed to Closing pursuant to clause (B) of this Section 10.1. If the Closing Date is scheduled to occur within Buyer’s twenty (20) day election period, the Closing Date shall be extended until the tenth (10th) day after the expiration of such twenty (20) day election period.

Material Casualty. If If, before Closing, the Assets or any portion thereof Property is damaged or destroyed by an insured fire or any other casualty prior that (i) would cost $750,000.00 or more to Closing repair or (ii) is not covered by Seller’s insurance and Seller is unwilling to agree to provide a “Casualty”), Owner shall give written notice of such Casualty to Lender and Buyer promptly after credit against the occurrence of such Casualty. If Sales Price in the amount of the repair, restoration or replacement required by a Casualty equals or exceeds Two Million Dollars United States Dollars (US$2,000,000) cost of such damage at Closing (a “Material "Major Casualty”"), then Buyer shall have the rightPurchaser may, in at its sole discretionoption, elect to (i) terminate this Agreement in which event MFG shall pay the balance of the Deposit then held Contract by MFG to Buyer and, in the event of a termination of this Agreement occurring after the Additional Deposit Funding Date, HMF shall also release to MFG the original stamped Agreement duly marked “cancelled” together with the Original Transfer Tax Receipt so as to allow MFG to invoke the Unwind Procedure and upon recovery of the Stamp Duty and Tax Refund, the Stamp Duty and Tax Refund shall be paid to Buyer, less the Lender’s Deposit Refund Amount, if any, which MFG shall pay to Lender, and Lender, Owner and Buyer shall have no further rights or obligations under this Agreement, except those which expressly survive such termination, or (ii) proceed to Closing, without terminating this Agreement, in which case Owner shall (A) credit the amount of the applicable insurance deductible against the Purchase Price, and (B) transfer and assign to Buyer all of Owner’s right, title and interest in and to all proceeds from all casualty and lost profits insurance policies maintained by Owner with respect to the Assets affected by such Casualty, except those proceeds allocable to lost profits for the period prior to the Closing; provided, however, that until such time as Buyer receives written confirmation from the applicable insurer, reasonably satisfactory to Buyer, acknowledging the assignment of such claim and agreeing to acknowledge Buyer as the insured under such policies for purposes of such claim, Owner shall continue to use commercially reasonable efforts, but at no material cost to Owner, to pursue the insurance proceeds thereunder on behalf of Buyer. Buyer shall make an election under this Section 10.1 by giving written notice to Owner on or before Seller within twenty (20) days after Owner’s delivery the date of Seller's notice to Buyer Purchaser of written notice of such Casualtythe casualty, in which case the ▇▇▇▇▇▇▇ Money (other than the Nonrefundable Deposit which will be paid to Seller) shall be refunded to Purchaser, and neither party shall have any further rights or obligations hereunder, other than as set forth herein with respect to rights and obligations that survive termination. If Buyer fails to make an election under this Section 10.1 within such twenty (20) day time period, Buyer shall be conclusively deemed to have elected to proceed to Closing pursuant to clause (B) of this Section 10.1. If the Closing Date is scheduled to occur within Buyer’s twenty (20) day election periodnecessary, the Closing Date shall be extended postponed until Seller has given the tenth (10thnotice to Purchaser required by this Section 17(a) day after and the expiration period of such twenty (20) day days described in this Section 17(a) has expired. If the Closing Date of any Parallel Agreement is extended a result of casualty as provided in such Parallel Agreement, at the election periodof Seller, the Closing Date of this Contract will be extended to the same Closing Date of such extended Parallel Agreement. If Purchaser does not timely make its election to terminate this Contract pursuant to this Section 17(a), then the Closing shall take place as provided herein, the Sales Price shall be reduced by an amount equal to Seller's deductible under its insurance policies and any proceeds of insurance previously received by Seller with respect thereto, and Seller shall assign to Purchaser at the Closing all of Seller's interest in and to any casualty insurance proceeds that may be payable to Seller on account of the occurrence (with its insurer’s Purchase and Sale Agreement15233083_2 21 consent written thereto), including the proceeds of any business interruption or loss of rental insurance payable with respect to periods after the Closing Date. In the event Purchaser elects to terminate this Contract pursuant to this Section 17(a), Seller will have the option to terminate all the other Parallel Agreements. In addition, if Purchaser pursuant to any of the other Parallel Agreements elects to terminate any Parallel Agreement as a result of fire or casualty as provided in such Parallel Agreement, Seller will have the option to terminate this Contract and upon such termination, the ▇▇▇▇▇▇▇ Money (other than the Nonrefundable Deposit which will be paid to Seller) will be refunded to Purchaser and neither party will have any further rights or obligations pursuant to this Contract, other than as set forth herein with respect to rights or obligations which survive termination.

Material Casualty. If the Assets estimated amount required to fully repair or any portion thereof is restore the Hotel damaged or destroyed by fire or any other casualty such Casualty (the “Affected Hotel”) to its condition immediately prior to Closing (a “Casualty”), Owner shall give written notice of such Casualty to Lender and Buyer promptly after the occurrence of such Casualty. If , as reasonably agreed to by the amount of the repairParties, restoration or replacement required by a Casualty equals or exceeds Two Million Dollars United States Dollars ten percent (US$2,000,00010%) of the Hotel Purchase Price for the Affected Hotel (such event, a “Material Casualty”), then Buyer Purchaser shall have the rightright to elect, in its sole discretionby providing written notice to the Sellers within ten (10) Business Days after Purchaser’s receipt of the Sellers’ written notice of such Casualty and the Parties’ agreement on the estimated cost to repair or restore, to (i) terminate cause the Affected Hotel to be excluded from this Agreement, in which case the Aggregate Purchase Price shall be reduced by the Hotel Purchase Price for the Affected Hotel and this Agreement and the Hotel Purchase and Sale Agreements, except for the Hotel Purchase and Sale Agreement for the Affected Hotel, shall remain in full force and effect as to all of the other Hotels and the parties shall equitably adjust the provisions in this Agreement in which event MFG shall pay good faith based on the balance exclusion of the Deposit then held by MFG to Buyer and, in the event of a termination of this Agreement occurring after the Additional Deposit Funding Date, HMF shall also release to MFG the original stamped Agreement duly marked “cancelled” together with the Original Transfer Tax Receipt so as to allow MFG to invoke the Unwind Procedure and upon recovery of the Stamp Duty and Tax Refund, the Stamp Duty and Tax Refund shall be paid to Buyer, less the Lender’s Deposit Refund Amount, if any, which MFG shall pay to Lender, and Lender, Owner and Buyer shall have no further rights or obligations under this Agreement, except those which expressly survive such terminationAffected Hotel, or (ii) proceed to Closing, without terminating this Agreement, in which case Owner the Sellers shall (A) provide Purchaser with a credit against the Aggregate Purchase Price in an amount of equal to the lesser of: (1) the applicable insurance deductible against plus any uninsured amount of the Purchase Pricerepair or restoration cost, and (2) the estimated costs for the repair or restoration of the Affected Hotel required by such Casualty as reasonably agreed to by the Parties, and (B) transfer and assign to Buyer Purchaser all of Owner’s the Sellers’ right, title and interest in and to all claims and proceeds from all casualty and lost profits insurance policies maintained by Owner the Sellers with respect to the Assets affected by such Casualty, except those proceeds allocable Affected Hotel. If Purchaser fails to lost profits for the period prior to the Closing; provided, however, that until such time as Buyer receives written confirmation from the applicable insurer, reasonably satisfactory to Buyer, acknowledging the assignment of such claim and agreeing to acknowledge Buyer as the insured under such policies for purposes of such claim, Owner shall continue to use commercially reasonable efforts, but at no material cost to Owner, to pursue the insurance proceeds thereunder on behalf of Buyer. Buyer shall make an election under this Section 10.1 by giving written notice to Owner on or before twenty (20) days after Owner’s delivery to Buyer of provide written notice of such Casualty. If Buyer fails its election to make an election under this Section 10.1 the Sellers within such twenty (20) day time period, Buyer then Purchaser shall be conclusively deemed to have elected to proceed to Closing pursuant to clause (Bii) of this Section 10.1preceding sentence. If the Closing Date is scheduled to occur within BuyerPurchaser’s twenty ten (2010) day Business Day election period, at Purchaser’s election, the Closing Date shall be extended postponed until the tenth date which is five (10th5) day Business Days after the expiration of such twenty ten (2010) day Business Day election period. If the Parties are unable to agree on the estimated costs to repair or restore as provided herein within ten (10) Business Days after Purchaser’s receipt of the Seller Parties’ written notice of such Casualty, the determination of the estimated costs to repair or restore shall be made by a nationally recognized engineering firm reasonably acceptable to the Parties as promptly as possible thereafter.

Material Casualty. If prior to the Assets Closing Date, the Premises, or any portion thereof is thereof, shall be damaged or destroyed by fire reason of fire, storm, accident or any other casualty prior casualty, then Seller shall immediately give notice thereof to Closing (a “Casualty”), Owner shall give written notice of such Casualty to Lender and Buyer promptly after the occurrence of such CasualtyBuyer. If such casualty will (a) give Franchisor the option to terminate either of the Franchise Agreements, and Franchisor elects to so terminate either of the Franchise Agreements, or (b) upon execution of the Lease, give Buyer's Tenant the option to terminate the Lease and if Buyer's Tenant exercises such option or refuses to modify the form of the Lease to specifically acknowledge and accept such casualty, then in either such case this Agreement shall be null and void, whereupon the full amount of the repairDeposit shall be paid by Escrow Holder to Buyer, restoration and all parties shall thereupon be relieved of all further liability hereunder. If such casualty (a) will not give Franchisor the option to terminate either of the Franchise Agreements, or replacement required by if it gives Franchisor the option to terminate either Franchise Agreement, if Franchisor waives such option in writing, and (b) upon execution of the Lease, will not give Buyer's Tenant the option to terminate the Lease, or if it gives Buyer's Tenant the option to terminate the Lease, if Buyer's Tenant waives such option in writing, and (c) constitutes a Material Casualty equals or exceeds Two Million Dollars United States Dollars (US$2,000,000) (a “Material Casualty”as defined below), then Buyer shall have the rightoption of terminating this Agreement or proceeding with the Closing in accordance with, in its sole discretionand subject to, the terms hereof. Buyer shall make such election by written notice to Seller, to be given within ten (i10) business days after receiving notice of the estimated cost to repair such casualty damage, and the availability or non-availability of insurance proceeds covering the loss. If Buyer elects to terminate this Agreement in which event MFG Agreement, the Escrow Holder shall pay the balance of return the Deposit then held by MFG to Buyer andBuyer, in the event parties shall share equally any cancellation fees of a Escrow Holder, and neither party shall have any further obligations hereunder to the other except pursuant to any provision hereof which expressly survives the termination of this Agreement occurring after the Additional Deposit Funding Date, HMF shall also release Agreement. If Buyer elects not to MFG the original stamped Agreement duly marked “cancelled” together with the Original Transfer Tax Receipt so as to allow MFG to invoke the Unwind Procedure and upon recovery of the Stamp Duty and Tax Refund, the Stamp Duty and Tax Refund shall be paid to Buyer, less the Lender’s Deposit Refund Amount, if any, which MFG shall pay to Lender, and Lender, Owner and Buyer shall have no further rights or obligations under terminate this Agreement, except those which expressly survive such terminationthen the transaction contemplated by this Agreement shall be consummated as otherwise provided herein, with no abatement, reduction or (ii) proceed to Closing, without terminating this Agreement, in which case Owner shall (A) credit the amount of the applicable insurance deductible set-off against the Purchase Price, and (B) transfer and . In such event Seller will assign to Buyer all at Closing the physical damage loss proceeds and business loss proceeds of Owner’s rightany insurance policy payable to Seller, title and interest in and to all proceeds from all casualty and lost profits insurance policies maintained by Owner with respect to the Assets affected by such Casualty, except those proceeds allocable to lost profits for the period prior to the Closing; provided, however, that until such time as Buyer receives written confirmation from the applicable insurer, reasonably satisfactory to Buyer, acknowledging the assignment of such claim and agreeing to acknowledge Buyer as the insured under such policies for purposes of such claim, Owner shall continue to use commercially reasonable efforts, but at no material cost to Owner, to pursue the insurance proceeds thereunder on behalf of Buyer. Buyer shall make an election receive a credit against the Purchase Price in the amount of any applicable deductible under Seller's insurance policy. As used in this Section 10.1 by giving written notice to Owner on or before twenty (20) days after Owner’s delivery to Buyer of written notice of such Casualty. If Buyer fails to make an election under this Section 10.1 within such twenty (20) day time period11.1, Buyer a Material Casualty shall be conclusively deemed to have elected occurred if the cost of repairing the damage from such casualty is estimated to proceed to Closing pursuant to clause exceed Five Hundred Thousand Dollars (B) of this Section 10.1. If the Closing Date is scheduled to occur within Buyer’s twenty (20) day election period, the Closing Date shall be extended until the tenth (10th) day after the expiration of such twenty (20) day election period$500,000).

Material Casualty. If In the Assets or event any portion thereof single Community is damaged in any material respect, or destroyed by fire or any other casualty prior to the Closing (a “Casualty”)Date, Owner Sellers shall give promptly provide Buyer with written notice of such Casualty casualty and Sellers’ estimate (based on the information available to Lender and Buyer promptly after Sellers at such time) of the occurrence of such Casualtycost to repair the same. If the amount of the repair, restoration or replacement required by a Casualty equals or estimated cost to repair such Community exceeds Two Million Dollars United States Dollars twenty million dollars (US$2,000,000$20,000,000.00) (a “Material Casualty”), then Buyer shall have the right, in its sole discretionwhich right shall be exercised within five (5) Business Days after Buyer receives notice of such Material Casualty, to either (ia) terminate this Agreement upon written notice to Seller and Escrow Holder, in which event MFG this Agreement shall pay the balance of terminate, the Deposit then held by MFG to Buyer and, in (less the event of a termination of this Agreement occurring after the Additional Deposit Funding Date, HMF shall also release to MFG the original stamped Agreement duly marked “cancelled” together with the Original Transfer Tax Receipt so as to allow MFG to invoke the Unwind Procedure and upon recovery of the Stamp Duty and Tax Refund, the Stamp Duty and Tax Refund Independent Consideration) shall be paid refunded to Buyer, less the Lender’s Deposit Refund Amount, if any, which MFG shall pay to Lender, and Lender, Owner and Buyer neither party shall have no any further rights or obligations under this Agreement, Agreement except for those which obligations that expressly survive such terminationthe termination hereof, or (iib) proceed to Closing, without terminating this AgreementClosing as scheduled, in which case Owner this Agreement shall not terminate and (Ai) credit the amount of the applicable Seller shall cause all collected insurance deductible proceeds to be paid over to Buyer (or credited against the Purchase PricePrice with an additional credit for any deductible, and self-insured or uninsured amounts) at Closing, (Bii) transfer and the applicable Seller shall assign to Buyer all of Owner’s right, title and interest in and to all claims and proceeds from all casualty and lost profits insurance policies maintained by Owner such Seller may have with respect to all policies of insurance relating to the Assets affected by such Casualty, Property at Closing (except for those proceeds allocable to lost profits for the period and costs incurred by Sellers prior to the Closing; provided), however, that until such time as Buyer receives written confirmation from and (iii) the applicable insurer, reasonably satisfactory Seller shall pay over to Buyer, acknowledging the assignment of such claim and agreeing to acknowledge Buyer as the insured under such policies for purposes of such claim, Owner shall continue to use commercially reasonable efforts, but at no material cost to Owner, to pursue the all insurance proceeds thereunder on behalf of Buyer. Buyer shall make an election under this Section 10.1 collected after Closing by giving written notice to Owner on or before twenty (20) days after Owner’s delivery to Buyer of written notice of such CasualtySeller promptly upon receipt thereof. If Buyer fails shall fail to make an election under this Section 10.1 within such twenty timely deliver the termination notice in accordance with subparagraph (20a) day time periodabove, then Buyer shall be conclusively deemed to have elected to proceed with Closing in accordance with subparagraph (b) above. In the event any single Community is damaged in any material respect, or destroyed by fire or any other casualty prior to the Closing Date, and such damage does not constitute a Material Casualty, then the Parties shall proceed to Closing pursuant to clause in accordance with subparagraph (Bb) of this Section 10.1. If the Closing Date is scheduled to occur within Buyer’s twenty (20) day election period, the Closing Date shall be extended until the tenth (10th) day after the expiration of such twenty (20) day election periodabove.