Common use of Material Damage or Condemnation Clause in Contracts

Material Damage or Condemnation. If the Project is materially damaged or if the Project or any part thereof is materially taken by condemnation or there is any condemnation or threatened condemnation of any direct or indirect access to the Project prior to the Closing Date, then Buyer shall have the right to terminate this Agreement and reject the Project and, on Buyer's written notice to Seller and Escrow Holder, the ▇▇▇▇▇▇▇ Money Deposit shall be returned to Buyer and this Agreement shall be terminated forthwith and neither Seller nor Buyer shall thereafter have any obligation to each other, except as set forth in SECTION 8.1 above and except as otherwise specifically set forth herein with respect to matters which survive termination of this Agreement. In the alternative, Buyer may elect to complete the transaction on the terms set forth in this Agreement and, in such event, or in the event there is damage to the Project that does not result in the Project being "materially damaged" as defined below (provided Seller and Buyer agree in their respective sole discretion on the amount of a reduction in the Purchase Price to reflect the costs of repairing such damage), and Seller shall retain the right to all insurance proceeds allocable to the restoration of the damaged Project or given as consideration for the taking. By "materially damaged," Seller and Buyer mean damaged to the extent (i) of any uninsured damage unless Seller agrees to pay Buyer the entire amount of such uninsured damage, (ii) the cost to repair such damage or destruction to the Project exceeds the sum of Two Hundred Fifty Thousand Dollars ($250,000.00), or (iii) any damage that allows a Lead Tenant to terminate its Lease. By "materially taken," Seller and Buyer mean a condemnation or taking by eminent domain occurring on the Project that results in the elimination of more than five percent (5%) of the Project, the elimination of more than five percent (5%) of the total gross square footage of the land comprising the Land, the elimination of more than either five percent (5%) of the parking areas at the Project or such portion of the parking areas such that the remaining parking areas do not provide sufficient parking to comply with applicable governmental requirements, or the elimination of any GLA in the Improvements at the Project or which otherwise permits any Lead Tenant to ▇▇▇▇▇ its rent or terminate its Lease. The phrase "taking by eminent domain" includes any notices of taking or commencement of proceedings under eminent domain power, but excludes any claim for inverse condemnation. Seller is not aware of any claim or threatened claim of inverse condemnation.

Material Damage or Condemnation. If the Project is materially damaged or if the Project or any part thereof is materially taken by condemnation or there is any condemnation or threatened condemnation of any direct or indirect access to the Project If, prior to the Closing Date, the Property shall be destroyed or damaged, or Seller has knowledge that the Property has become the subject of any proceedings, judicial, administrative, or otherwise, for eminent domain or condemnation, Seller shall promptly notify Purchaser thereof. If (a) the damage to the Property is not fully insured and the value of the Property destroyed or damaged is greater than Two Hundred Thousand Dollars ($200,000), (b) the value of the Property destroyed or damaged or subject to taking (and/or the impact on the remainder of the Property) is greater than One Million Dollars ($1,000,000.00) as reasonably determined by Seller, or (c) there is an actual or threatened condemnation or eminent domain action that would permit a tenant to terminate its lease as of the Closing Date, or (d) any such damage or condemnation would cause a zoning violation (whether or not grandfathered or waived) or provide insufficient parking such that the Property cannot be operated in the same manner as of the Effective Date (each of which matters in subsections (a), (b), (c) and (d) shall be referred to herein as a “Material Damage or Condemnation Event”), then Buyer Purchaser shall have the right to terminate this Agreement and reject the Project and, on Buyer's by written notice to Seller no later than five (5) Business Days after the giving of Seller’s notice, and Escrow Holderupon such termination, the ▇▇▇▇▇▇▇ Money Deposit shall be returned to Buyer and this Agreement shall be terminated forthwith Purchaser and neither Seller nor Buyer or Purchaser shall thereafter have any obligation to each other, except as set forth in SECTION 8.1 above and except as otherwise specifically set forth herein with respect to matters which other than those that by their terms expressly survive the termination of this Agreement. If the Closing Date has been scheduled in accordance with Section 7.1, then the Closing Date shall be extended, if necessary, to provide Purchaser sufficient time to make such election, and no increase in the Purchase Price shall be applicable to any such extension. In the alternative, Buyer Purchaser may elect to complete the transaction on the terms set forth in this Agreement and, in such event, or Purchaser shall receive a credit at Closing in the event there is damage to the Project that does not result in the Project being "materially damaged" as defined below (provided Seller and Buyer agree in their respective sole discretion on the amount of the deductible for the applicable insurance coverage (unless Purchaser has a reduction in right of reimbursement from any tenant pursuant to the Purchase Price to reflect the costs Leases) and a full assignment of repairing such damage), and Seller shall retain the right to all insurance proceeds allocable to the restoration payable by reason of the damaged Project such damage or destruction or condemnation awards, as applicable, given as consideration for the taking. By "materially damaged," , less any costs, expenses and fees, including reasonable attorney’s fees, expenses and disbursements, incurred by Seller and Buyer mean damaged to in connection with the extent (i) negotiation and/or settlement of any uninsured damage unless Seller agrees to pay Buyer the entire amount casualty claim or condemnation award, and any portion of such uninsured damage, (ii) the cost claim or award that is allocable to repair such damage or destruction to the Project exceeds the sum loss of Two Hundred Fifty Thousand Dollars ($250,000.00), or (iii) any damage that allows a Lead Tenant to terminate its Lease. By "materially taken," Seller and Buyer mean a condemnation or taking by eminent domain occurring on the Project that results in the elimination of more than five percent (5%) use of the Project, Property prior to Closing and reasonable and actual costs incurred by Seller in stabilizing the elimination of more than five percent (5%) of the total gross square footage of the land comprising the Land, the elimination of more than either five percent (5%) of the parking areas at the Project or such portion of the parking areas such that the remaining parking areas do not provide sufficient parking to comply with applicable governmental requirements, or the elimination of any GLA in the Improvements at the Project or which otherwise permits any Lead Tenant to ▇▇▇▇▇ its rent or terminate its LeaseProperty following a casualty. The phrase "“taking by eminent domain" ” includes any notices of taking or commencement of proceedings under eminent domain power, but excludes any claim for inverse condemnation. If Purchaser elects to proceed with its purchase of the Property, Seller shall not compromise, settle or adjust any claims to such proceeds or award without Purchaser’s prior written consent. Notwithstanding the foregoing, damage to the Property which is not aware fully insured shall not be deemed to be a Material Damage or Condemnation Event under subsection (a), above, if Purchaser receives a credit at Closing in the amount of any claim the cost of restoration and repair of such uninsured damage or threatened claim of inverse condemnationdestruction as jointly estimated by Purchaser and Seller in their reasonable discretion.