Common use of Material Loss Clause in Contracts

Material Loss. For the purposes of this Section 9.02, "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 reasonable determination, equal or exceed $1,000,000. 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 the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, 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 or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof ("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 9.02, the 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 the Termination Surviving Obligations. If Purchaser elects the Waiver Option, 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 this Section 9.02Article IX, "“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, equal exceed Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00), whether or exceed $1,000,000not such damage is covered by insurance. If, in Seller's the reasonable determination, which determination shall be made as promptly as is practicableof 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 the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, 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 Seller, or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof 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 period on and after Closing) and deliver to Purchaser an amount equal to the deductible applicable thereto (“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 9.029.2, the Deposit ▇▇▇▇▇▇▇ Money 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 the Termination Surviving Obligations. If Purchaser elects the Waiver Option, 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 Closingotherwise expressly provided herein.

Material Loss. For the purposes of this Section 9.02Sections 10.2 and 10.3, "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 reasonable determination, equal or exceed $1,000,000250,000.00, whether or not such damage is covered by insurance. 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 the Termination Surviving Obligationspursuant to Sections 5.3 and 6.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, as 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 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 9.0210.2, the Deposit Earnest Money (less the 19 Independent Consideration) 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 the Termination Surviving Obligationsas otherwise provided in Sections 5.3 and 6.4 hereof. If Purchaser elects the Waiver Option, then, at its option, then 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 In the purposes of this Section 9.02event that, "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 willClosing, the Real Property shall suffer a Material Loss or Seller shall receive notice of the commencement or the threat of commencement of any eminent domain or condemnation proceeding which permanently and materially impairs the current use of the Real Property ("Condemnation Proceeding"), Seller shall immediately notify Buyer of such Material Loss or Condemnation Proceeding and, in Seller's reasonable determination, equal or exceed $1,000,000. If, in Seller's reasonable determination, which determination such a case: (i) Buyer shall be made as promptly as is practicable, have the Improvements have sustained Material Damage by a Casualty, Seller may, at its option, right to terminate this Agreement and the Escrow by delivering written notice to Purchaser on or before Closing, and neither party hereto shall have any further rights or obligations hereunder except the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, as its sole option, within fifteen five (155) days after delivery the occurrence of the Casualty such Material Loss Noticeor Condemnation Proceeding, either (a) terminate in which case, this Agreement by delivering written notice of same shall be deemed terminated pursuant to Seller Section 8.5(c) below; or (bii) waive accept the Property in its right of termination then-existing condition and elect to proceed to close this transaction purchase and acquire the Property in accordance with the terms hereof and conditions of this Agreement, subject to the terms and conditions described in this Section 8.3 ("Waiver Option"). Failure of Purchaser to deliver written notice of termination within said fifteen (15) day period Buyer shall be conclusively deemed to be an election by Purchaser of the Waiver Option. In the event Seller or Purchaser elects elect to proceed pursuant to clause (ii) if Buyer does not timely terminate this Agreement under this Section 9.02pursuant to clause (i)). Notwithstanding the foregoing, in the Deposit event of a Material Loss or Condemnation Proceeding, Seller shall be returned have the right to Purchaser terminate the Existing PSA pursuant to its terms, in accordance with Section 6.04 and thereafter neither party to which case, this Agreement shall thereafter have any further rights or obligations hereunder, except the Termination Surviving Obligationsbe deemed terminated pursuant to Section 8.5(c) below. If Purchaser elects Seller does not terminate the Waiver OptionExisting PSA and Buyer exercises its right to purchase and acquire the Property in its present condition, then, at its option, then Seller and Buyer shall (a) repair the Improvements proceed to substantially their condition prior to such damage, if close and all available insurance proceeds and condemnation proceeds shall be allocated and disbursed pursuant 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 provisions of the loss (subject to the limitation herein described) shall be assigned to Purchaser at ClosingLease.

Material Loss. For the purposes of this Section 9.029.2, "“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 reasonable determination, equal or will exceed $1,000,000500,000.00, whether or not such damage is covered by insurance. If, in Seller's reasonable determination, which determination shall be made as promptly as is practicable, 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 ▇▇▇▇▇▇▇ 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 with respect to the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, 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 or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof ("Waiver Option"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 9.029.2, the Deposit ▇▇▇▇▇▇▇ Money, including the Non-Refundable Deposit, shall be returned to Purchaser in accordance with Section 6.04 Purchaser, and thereafter neither party to this Agreement shall thereafter have any further rights or obligations hereunder, except with respect to the Termination Surviving ObligationsTerms. If In the event this Agreement is not terminated pursuant to the provisions of this Section 9.2, and Seller has not fully repaired the damage prior to Closing, then Purchaser elects the Waiver Option, then, at its option, Seller shall receive (a) repair a credit against the Improvements to substantially their condition prior to such damage, if and cash balance of the Purchase Price payable at Closing to the extent of payments received by or on behalf of Seller reasonably determines prior to the Closing Date and not previously expended on repairs (such repairs 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 cannot be delayed until Closinghave been paid in full) under any applicable insurance policy or policies in effect with respect to the Property, subject to Section 9.04 or (b) deliver an assignment of Seller's rights to Purchaser 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 insurance deductible and assign to Purchaser all of its rights in the resulting casualty insurance proceeds (but the aggregate amount of the deductibles with respect to all such deductible plus insurance proceeds shall not exceed policies (the lesser of (i) the cost of repair or (ii) the Purchase Priceforegoing are collectively referred to herein as "Purchaser's Casualty Reimbursements"). 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 this Section 9.029.2 and 9.3, "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 reasonable determination, equal exceed the greater of $ 1,000,000.00 or exceed $1,000,000twenty-five percent (25%) of the Purchase Price, whether or not such damage is covered by insurance. 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 the Termination Surviving Obligationspursuant to Section 3.3 and 7.4 hereof). In the event Seller does not so terminate this Agreement, Purchaser may, as 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 Seller, or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof (clause (b) shall be referred to herein as the "Waiver 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 9.029.2, the Deposit Earnest Money shall be returned ▇▇ ▇▇▇urned to Purchaser in accordance with Section 6.04 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 the Termination Surviving Obligationsas otherwise provided in Sections 3.3 and 7.4 hereof. If Purchaser elects the Waiver Option, thenthen at the option of Seller, at its option, Seller shall (a) Seller shall 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) Seller shall 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)] and a pro rata share of the rental or business loss proceeds, if any, from the insurance coverage. In the event Seller assigns 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 If the purposes of this Casualty Renovation Cost as determined pursuant to Section 9.0212.12.1 exceeds, "Material Damage" shall mean damage in the aggregate, $250,000.00, then unless either party elects to pay the excess by Notice delivered to the Improvements of such nature other party within ten (10) Business Days after the date that the cost of restoring the same to their condition prior to the Casualty willRenovation Cost is determined, in Seller's reasonable determination, equal Purchaser or exceed $1,000,000. 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, 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 the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, 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 or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof ("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 9.02, the 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 for those obligations which expressly survive termination of this Agreement. If Seller elects to pay the Termination Surviving Obligationsexcess, then Purchaser will receive a credit against the Purchase price in the amount of the Casualty Renovation Cost in excess of $250,000.00. If Purchaser elects to pay the Waiver Option, then, at its option, excess or if Purchaser or Seller shall (a) repair fails to timely send 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 Notice of its rights in the resulting casualty insurance proceeds (but the amount election to terminate this Agreement, then Closing shall take place as provided herein without reduction 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 , at Closing Seller assigns insurance proceeds, (A) Purchaser may notify all appropriate insurance companies of its interest in shall assign the insurance proceeds, proceeds to Purchaser and (B) all credit Purchaser with the deductible under Seller’s casualty insurance proceeds payable policy, if applicable. If the process described in this Section 12.12.2 concludes after the date established as a result the Closing Date (as may be extended by Section 12.12.1), the Closing Date will be adjourned to ten (10) Business Days following the delivery of the loss (subject Notice by either party electing to pay the limitation herein described) shall be assigned excess or following the expiration of the time allowed for the parties to Purchaser at Closingterminate this Agreement under this Section 12.12.2, without either party so terminating this Agreement, whichever is applicable.

Material Loss. For the purposes of this Section 9.02, "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 reasonable determination, equal or exceed $1,000,000. 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 the Termination Surviving Obligations. In the event Seller does not so terminate this Agreement, Purchaser may, 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 or (b) waive its right of termination and elect to proceed to close this transaction in accordance with the terms hereof ("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 9.02, the 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 the Termination Surviving Obligations. If Purchaser elects the Waiver Option, 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.