Common use of Casualty; Condemnation Clause in Contracts

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. In the event that, prior to Closing, the Real Property, or any part thereof, (a) Ifis destroyed or materially damaged, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or such damage is suffered with respect sufficient to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect give rise to an Owned Real Propertythe Major Tenant the right to terminate its Lease, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased the cost of remedying such casualty exceeds One Million and 00/100 Dollars ($1,000,000.00), as determined by Seller in its reasonable discretion, or (b) condemnation proceedings are commenced against the Real Property, give rise which materially and adversely affect the use and operation thereof, Buyer shall have the right, exercisable by giving notice of such decision to the landlord’s right of termination under the applicable Lease Seller within ten (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with 10) business days after receiving written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtydamage, destruction or condemnation proceedings, to terminate this Agreement in its entirety, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and case neither party shall have any further obligation to the rights or obligations hereunder other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to than obligations that Store, except as may be expressly provided hereinsurvive termination of this Agreement. In the event that of such Buyer does not timely elect to exclude termination, the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent Deposit shall be assigned returned to such Buyer, as Buyer’s sole and exclusive remedy. In the event Buyer at has no right of termination pursuant to the applicable Closing (and such immediately preceding sentence, Buyer shall receive a credit against accept the Base Purchase Price Real Property in its then condition and proceed with the Closing with no reduction, offset or Store abatement of the Purchase Price, and accept, as applicableits sole recourse against Seller payment or assignment of (i) all applicable proceeds of insurance, if any, from policies of insurance maintained and paid for by Seller covering the Real Property up to the amount paid by the insurer and necessary to make the repairs or restorations, or (ii) any applicable condemnation awards subject to the rights or tenants to such proceeds or awards under the Leases, if any. Seller shall credit the Purchase Price to the extent any deductible exists that is the Seller’s responsibility under any policies of insurance, which credit shall not exceed the amount of such damages. The Closing shall automatically be extended as may be necessary for the timeframes set forth herein to run; provided however, the Closing may occur prior to the final settlement with and payment by the insurer, in the full amount event of any deductible)casualty damage or final settlement and payment of condemnation proceeds, and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as if applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time Seller shall notify Buyer immediately of the Measurement Date (occurrence of any damage to or destruction of the Hotel, or any portion thereof, or the Effective Time of Closing institution or maintenance of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty condemnation or damage is suffered similar proceedings with respect to the Hotel or any Seller Real Property portion thereof. In the event of any damage to or destruction of any portion of the Hotel for which Buyer and Seller reasonably determine that the cost to repair exceeds Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), or in the event any condemnation or similar proceedings are instituted or maintained which, in the good faith reasonable business judgment of Buyer, would have a Closing has not then occurredmaterial adverse effect on the Hotel, which casualty or damage would Buyer at its option either (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtyterminate this Agreement, in which event (i) if case the applicable Closing is a Transition Date Closing, the Base Purchase Price Exxxxxx Money shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price returned to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) Buyer and neither party shall have any further obligation to rights or obligations hereunder except for any covenants or agreements which by the other hereunder with respect to express provisions of this Agreement survive a termination of this Agreement, or (ii) may consummate the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinpurchase evidenced by this Agreement. In the event of the institution or maintenance of any condemnation or similar proceedings which, in the good faith reasonable business judgment of Buyer, would not have a material adverse affect on the Hotel, or in the event that such Buyer does not timely elect elects to exclude consummate the Carved-Out Assets and Carved-Out Liabilities related purchase pursuant to any such affected Store from the applicable Closingclause (ii) above, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price at Closing in an amount equal to (A) all insurance or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein condemnation proceeds collected by Seller prior to the contraryClosing, plus (B) Seller's deductible or self-insurance permit or such insurance proceeds and rights lesser amount as is equal to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments estimated cost to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time repair or reconstruct those portions of the Measurement Date Hotel damaged or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Propertydestroyed, and all rights to recover all other insurance or condemnation proceeds in respect thereof by Seller arising out of such damage or Parent destruction or proceedings and not collected prior to the Closing, including any business interruption and rental loss proceeds for any period after the Closing, shall be assigned by Seller to such Buyer at as of the applicable Closing Closing. In the event of any damage to or destruction of any portion of the Hotel for which Buyer and Seller reasonably determine that the cost to repair equals or is less than Two Hundred and Fifty Thousand Dollars (and such $250,000.00), Buyer shall receive a credit against at Closing in an amount equal to (x) the Base Purchase Price or Store Purchase Pricecost of the repair, as applicablereasonably agreed upon by Buyer and Seller, plus (y) an amount equal to business interruption loss to Buyer as a result of the damage or destruction; and in the full amount of any deductible), and, notwithstanding anything herein such event Seller shall remain entitled to the contrary, such all insurance proceeds and rights attributable to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsdamage or destruction.

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would If (i) with respect there is any loss, damage or destruction to an Owned Real Property, be reasonably expected to take the Property by fire or other casualty (except eminent domain) (a “Casualty Event”) which would enable more than one hundred eighty ten percent (18010%) days of the residents at any Facility to complete any such restoration or repair terminate their Resident Agreements, or (ii) there is a Casualty Event and the damage is in excess of three million dollars ($3,000,000.00), or (iii) there is a condemnation proceeding in which any material portion of the Real Property relating to any Facility (including, without limitation, any access or parking) shall be taken or in which the Property taken has a fair market value in excess of three million dollars ($3,000,000.00) (any of the foregoing shall be referred to herein as the “Floor”), then Purchaser will have the right to terminate this Agreement and receive a return of the Deposit, if it so notifies Seller in writing not later than the first to occur of (a) ten (10) days after it is advised of such Casualty Event or condemnation proceeding or (b) the Closing Date. Seller shall promptly notify Purchaser in writing of a Casualty Event or condemnation affecting the Property, and if the Casualty or condemnation is less than or equal to the Floor, will assign (or cause to be assigned) to Purchaser at Closing each Seller Party’s rights with respect to all insurance or condemnation proceeds related thereto less any sums expended by such Seller Party with Purchaser’s consent to restore such casualty, and Purchaser will receive a Leased Real Property, give rise credit equal to the landlord’s right deductible plus any uninsured amounts. If the Casualty Event or condemnation is in excess of termination under the applicable Lease Floor and Purchaser elects not to terminate this Agreement, then Seller will assign (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price will cause to be paid assigned) to Purchaser at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder each Seller Party’s rights with respect to the Carved-Out Assets all insurance or condemnation proceeds related thereto less any sums reasonably expended by such Seller Party with Purchaser’s consent to restore such casualty, and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall Purchaser will receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein equal to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute deductible plus any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsuninsured amounts.

Casualty; Condemnation. (a) If, between If any Facility or other portion of the date hereof Property is damaged by fire or other casualty or becomes the subject of a condemnation proceeding affecting any Facility prior to Closing and the Effective Time damage is in excess of or the portion of the Measurement Date Facility (or other Property) taken has a fair market value in excess of Three Hundred Thousand Dollars ($300,000) (the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings“Floor”), any casualty or damage is suffered Purchaser will have the right to terminate this Agreement with respect to any Seller Real such Facility and the related Property for which a Closing has not then occurred(and, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”)as applicable, the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtyrelevant Facility Owner Interests) and, in which such event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by that portion of the applicable Base Store Purchase Price allocated to such Facility and the related Property, if it so notifies Seller in writing not later than the first to occur of (without duplicationa) ten (10) days after it is advised of the casualty or condemnation proceeding or (b) Closing; provided, however, Purchaser shall not have the right to terminate this Agreement if Existing Tenant is obligated under the Existing Leases to restore such casualty or condemnation. Seller will notify Purchaser in writing of a casualty or condemnation affecting any Facility or any other portion of the Property within the earlier of (i) Closing or (ii) five (5) days of Seller’s receipt of notice thereof and, if the applicable Closing casualty or condemnation is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation less than or equal to the other hereunder Floor, will assign to Purchaser at Closing Seller’s rights with respect to all insurance or condemnation proceeds related thereto and pay to Purchaser the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, amount of any insurance deductible. If the casualty is in excess of or the portion of the Facility and related Property taken has a fair market value in excess of the Floor, and Purchaser elects not to terminate this Agreement with respect to such Facility as contemplated above, then Seller will assign to Purchaser at Closing Seller’s rights with respect to all insurance or condemnation proceeds and all rights to recover insurance proceeds in respect thereof by related thereto and, if Seller or Parent has not already paid the deductible, Purchaser shall be assigned entitled to such Buyer at the applicable Closing (and such Buyer shall receive a credit against toward the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (a) If, between on or before the date hereof and the Effective Time of the Measurement Date (Closing Date, one or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would more Properties shall be (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration damaged or repair destroyed by fire or other casualty or (ii) taken as a result of (or in lieu of) any condemnation or eminent domain proceeding, and the same does not constitute a Major Loss or Damage, then Sellers shall promptly notify Purchaser of the same, and this Agreement shall remain in full force and effect without any reduction in the Purchase Price, provided that (A) at the Closing, Purchaser shall be entitled to a reduction in the Purchase Price with respect to a Leased Real Property, give rise the applicable Apartment Complex equal to the landlord’s right amount of termination the deductible under the applicable Lease Seller’s property insurance policy applicable to such casualty with respect to such Apartment Complex, and (a “Major Casualty”)B) Sellers shall assign to Purchaser all of Sellers’ right, title and interest in and to any and all (i) claims and insurance proceeds Sellers may have or be entitled to collect, as applicable, under the Seller Insurance Policies in connection with such casualty and (ii) condemnation awards Sellers may be entitled to collect in connection with such condemnation, in each case, pursuant to an assignment and assumption agreement reasonably acceptable to both Sellers and Purchaser, and less the amount of such proceeds or awards theretofore used by Sellers in connection with securing and restoring the applicable Buyer Property or Properties. In the event of a Major Loss or Damage affecting a Property, Purchaser may elect terminate this Agreement with respect to exclude the Carved-Out Assets and Carved-Out Liabilities related such Property by sending written notice thereof to the Store at that Seller Real Property from the applicable Closing by providing Seller with Sellers within ten (10) Business Days after Sellers send Purchaser written notice of the occurrence of a Major Loss or Damage (but in no event later than the Closing Date), and, upon any such exclusion within five days election, (a) this Agreement shall be deemed automatically terminated solely with respect to the applicable Property (and the applicable Property shall no longer constitute a “Property” for the purposes of this Agreement) effective as of Purchaser’s notice to Sellers of such Buyer’s receipt of written notice election, (b) such Property shall be excluded from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date property to be sold by Sellers to Purchaser at the Closing, (c) the Base Purchase Price shall be reduced payable by Purchaser at the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by an amount equal to the applicable Store Allocated Purchase Price allocated to such Property as set forth on Schedule I and (d) all of Sellers’ representations, warranties, covenants, liabilities and obligations, and Purchaser’s rights, with respect to such Property shall be void and of no further force and effect (without duplication) limiting the respective rights and neither party shall have any further obligation to obligations of the other hereunder parties with respect to the Carved-Out Assets other Properties and Carved-Out Liabilities related to that Store, except as may be for matters which expressly provided hereinsurvive the termination of this Agreement). In the event that such Buyer If Purchaser does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to terminate this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real the applicable Property for which a Closing has not then occurred which is not a Major Casualtywithin such ten (10) Business Day period, then such Buyer Purchaser shall be deemed to have no right elected to exclude proceed with Closing with respect to the Seller Real subject Property, in which event the provisions of the first sentence of this Section 11.1 shall apply. Purchaser and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at agree that for purposes of the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein Regency Property this Section 11.1 is an express agreement to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and contrary of Section 5-1311 of the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsNew York General Obligations Law.

Casualty; Condemnation. (a) IfTo its knowledge, between Seller represents that it has received no notice of any condemnation proceedings against the date hereof and the Effective Time whole or any part of the Measurement Date (Property. If prior to the Closing Date, all or a substantial portion of either the Real Property or the Effective Time building wherein the SNF is located shall be damaged (whether by fire, theft, vandalism or other cause of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (icasualty) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”)) or condemned or taken by eminent domain by any competent authority for any public or quasi-public use or purpose, then, in such event, Purchaser shall have the applicable Buyer may elect option to exclude terminate this Agreement or close the Carved-Out Assets and Carved-Out Liabilities related to transactions herein provided for; provided the Store at phrase “substantial portion” shall mean a reduction in the fair market value of the Property in excess of $500,000.00 that Seller Real cannot cure within ninety (90) days after notice of such condemnation or Casualty. The fair market value shall be determined, based on the value on the date of this Agreement of the Property from less the applicable Closing portion of the Property damaged or lost, by providing an independent MAI appraiser to be mutually selected and paid equally by Seller with and Purchaser. If Seller and Purchaser are unable to mutually select an appraiser, then one independent appraiser shall be selected and paid by Purchaser and one independent appraiser shall be selected and paid by Seller. If a party does not select an appraiser as provided in the preceding sentence within ten (10) days after the other party has given written notice of the name of its appraiser, such exclusion party shall lose its right to appoint an appraiser. If the two appraisers are selected by the parties as provided above, they shall meet promptly to determine the fair market value. If such appraisers are unable to agree within five fifteen (15) days of such Buyer’s receipt of written notice from Seller of such Major Casualtyafter the second appraiser has been selected, they shall jointly select a third appraiser. The reduction in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced set by agreement of any two (2) of the three (3) appraisers. If Purchaser shall elect pursuant to such option to terminate this Agreement, this Agreement shall be null and void and the funds held by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price Escrow Agent pursuant to be paid at that Subsequent Closing Section 3 of this Agreement shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation returned to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsPurchaser. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closinghowever, any casualty or damage is suffered with respect Purchaser shall elect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualtyclose this transaction, then such Buyer there shall have no right be an abatement in the Purchase Price equal to exclude the Seller Real Property, and all rights to recover net amount of insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedscondemnation award allowed.

Casualty; Condemnation. Seller shall promptly notify Buyer of any casualty to the Land or any condemnation proceeding commenced prior to the Close of Escrow. If any damage caused by such casualty is material or such condemnation proceeding relates to or may result in the loss of any material portion of the Land, Buyer shall, within 10 calendar days after receipt of such notification, elect in writing either (a) Ifprovided Buyer is not in material default of this Agreement, between the date hereof and the Effective Time of the Measurement Date to terminate this Agreement (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date ClosingsBuyer's Termination Notice), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date ClosingFull Deposit shall become due to Buyer within 150 days after delivery of Buyer's Termination Notice in accordance with the terms of the Deposit Note, each party shall bear one-half of the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price Escrow costs incurred to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) date and neither party shall have any further obligation rights or obligations hereunder, except for those obligations expressly stated as surviving termination of this Agreement, or (b) to continue to proceed under this Agreement to Closing without adjustment to the Purchase Price, in which event upon the Close of Escrow, Seller shall assign to Buyer any insurance proceeds, compensation, award or other hereunder with respect payments or relief resulting from such casualty or condemnation proceedings to the Carved-Out Assets and Carved-Out Liabilities related extent applicable to that Store, except as may be expressly provided hereinthe Land. In the event that Buyer fails to deliver either such election in writing prior to the expiration of the 10-day period, Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned deemed to have elected to continue with the Closing under clause (b) immediately preceding. For purposes of this Section 6.02, "material" shall mean in the case of (1) damage to the Land, damage which would require additional repair in connection with Buyer's development of the Land, which cost to repair would be in excess of Buyer's development costs without such damage by at least $3,000,000; and (2) the portion of the Land affected by the condemnation proceeding, 10% of the Land. Notwithstanding anything herein, in the event of damage to the Land, if Buyer at elects to terminate the applicable Agreement as provided hereinabove, Seller may elect within 10 calendar days to repair such damage prior to Closing (and such Buyer shall receive or agree to a credit against the Base Purchase Price or Store Purchase Price, as applicablefor the cost of repair, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds which case Buyer's Termination Notice shall be Purchased Assets hereunder of no effect and the parties shall execute any amendments proceed to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (a) IfIf before the Closing Date, between the date hereof and the Effective Time all or any portion of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage Purchased Assets is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect taken by eminent domain or is the subject of a pending or (to an Owned Real Propertythe Actual Knowledge of Seller) contemplated taking which has not been consummated, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect damaged or destroyed by fire or other casualty, Seller shall notify Buyer promptly in writing of such fact, then if the parties consummate the transactions contemplated hereby (including payment of the Purchase Price), (x) in the case of a condemnation, Seller shall assign or pay, as the case may be, any proceeds thereof to a Leased Real Property, give rise Buyer on the Closing Date (to the landlord’s right extent received prior to the Closing Date or promptly upon receipt if received thereafter) and (y) in the case of termination under a casualty, Seller shall either restore the applicable Lease damage or assign the insurance proceeds therefor (and pay the amount of any deductible and/or self-insured amount in respect of such casualty) to Buyer on the Closing Date (to the extent received prior to the Closing Date or promptly upon receipt if received thereafter). Notwithstanding the above, if such casualty or loss results in a “Major Casualty”)Material Adverse Effect prior to the Closing Date and the parties elect to consummate the transactions contemplated hereby, Buyer and Seller shall negotiate to settle the loss resulting from such taking (and such negotiation shall include, without limitation, the applicable Buyer may elect to exclude the Carved-Out Assets negotiation of a fair and Carved-Out Liabilities related equitable adjustment to the Store at that Closing Payment Amount and Final Closing Payment Amount). If no such settlement is reached within sixty (60) days after Seller Real Property from the applicable Closing by providing Seller with written notice has notified Buyer of such exclusion within five days of such Buyer’s receipt of written notice from casualty or loss, then Buyer or Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price may terminate this Agreement pursuant to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinSection 7.12(e). In the event that such of damage or destruction which Seller elects to restore, Seller will have the right to postpone the Closing Date for up to four (4) months. Buyer does not timely elect will have the right to exclude the Carved-Out Assets inspect and Carved-Out Liabilities related to observe all repairs necessitated by any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller damage or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsdestruction.

Casualty; Condemnation. (aa.) Sellers shall promptly notify Purchasers of any casualty damage it becomes aware of or notice of condemnation that Sellers receive prior to the Closing Date. (b.) If: (A) any portion of the Property is damaged by fire or casualty after the Effective Date and is not repaired and restored substantially to its original condition prior to Closing, and (B) at the time of Closing the estimated cost of repairs is Five Hundred Thousand Dollars ($500,000) or less, as determined by an independent adjuster, or otherwise should Purchasers opt pursuant to Section 18(c)(ii), Purchasers shall be required to purchase the Property in accordance with the terms of this Agreement and at Sellers’ option, Purchasers shall either: (x) receive a credit at Closing of the estimated cost of repairs as determined by the aforesaid independent adjuster; or (y) at Closing Sellers shall: (1) assign to Purchasers, without recourse, all insurance claims and proceeds with respect thereto (less sums theretofore expended in connection with such fire or 10370945.3 22 casualty, if any, by Seller, including for temporary repairs or barricades) (in which event Purchasers shall have the right to participate in the adjustment and settlement of any insurance claim relating to said damage), and (2) credit Purchasers at Closing with an amount equal to Sellers’ insurance deductible. Sellers shall have no liability or obligation with respect to the quantity or condition of the Property and shall be released from any representation and warranty regarding same as a result of such fire or casualty. (c.) If, between at the date hereof and time of Closing, the Effective Time estimated cost of the Measurement Date repairing such damage is more than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings$500,000.00), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurredas determined by such independent adjuster, which casualty or damage would Purchasers may, at their sole option: (i) with respect terminate this Agreement by notice to an Owned Real Property, be reasonably expected to take more than one hundred eighty Sellers within fifteen (18015) days after such casualty (which shall be deemed a termination pursuant to complete any such restoration or repair Section 19(a)(i) of this Agreement); or (ii) proceed to Closing in accordance with Section 18(b)If, prior to Closing, a “material” portion of the Property is taken by eminent domain, then Purchasers shall have the right within fifteen (15) days after receipt of notice of such material taking to terminate this Agreement, (which shall be deemed a termination pursuant to Section 19(a)(i) of this Agreement). If Purchasers elect to proceed and to consummate the purchase despite said material taking (such election being deemed to have been made unless Purchasers notify Sellers to the contrary within fifteen (15) days after receipt of notice from Sellers to Purchasers of any taking), or if there is less than a material taking prior to Closing, there shall be no reduction in or abatement of the Purchase Price and Purchasers shall be required to purchase the Property in accordance with the terms of this Agreement, and Sellers shall assign to Purchasers, without recourse, all of Sellers’ right, title and interest in and to any award made or to be made in the eminent domain proceeding with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease such taking (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event Purchasers shall have the right to participate in the adjustment and settlement of such eminent domain proceeding). For the purpose of this Section, the term “material” shall mean any taking of in excess of ten percent (10%) of the square footage of any of the Facilities or twenty percent (20%) of the Real Property associated with any of the Facilities, which would: (i) if adversely affect Purchasers’ or New Operators’ ability after said taking to operate any of the Facilities in compliance with the Licenses with the same number of beds at the applicable Closing is a Transition Date Closing, Facility as are existing with respect to such Facility as of the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) date of this Agreement; or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price eliminate after said taking a means of egress and ingress to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights Facility to recover insurance proceeds in respect thereof by Seller a public highway; or Parent shall be assigned to such Buyer at (iii) cause the use of the applicable Closing (Facility after said taking to no longer be in compliance with all applicable zoning and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Pricebuilding rules, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds regulations and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsordinances. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds19.

Casualty; Condemnation. (a) IfIf the Leased Premises or any portion thereof are destroyed or damaged by fire, between explosion, or any other casualty, then Lessee shall make available to Lessor all property insurance proceeds and, so long as the proceeds are sufficient Lessor shall, as soon as practicable, repair, restore and rebuild the Leased Premises to a condition equivalent to that existing prior to such casualty (excluding Lessee's installations, alterations, merchandise, trade fixtures, inventory, furnishings, operating equipment and personal property). If the proceeds are not sufficient, all such proceeds shall be deposited with an independent escrow agent mutually acceptable to Lessor and Lessee, to be held for the remainder of the term of this Lease as security pending resolution by the Parties as to how the Leased Premises will be restored. From the date hereof of such casualty to the date the Leases Premises is restored, unless the casualty is caused by Lessee's negligence, willful misconduct or recklessness, in which case the rent will not xxxxx, rent and all other charges shall xxxxx in proportion to the Effective Time unusable portion of the Measurement Date (Leased Premises. 8058133 4 Notwithstanding the foregoing language, if the casualty is not caused by Lessee's gross negligence, willful misconduct or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would recklessness (i) with respect the damage or casualty to an Owned Real Propertythe Leased Premises is such that, be in Lessee's reasonable estimation, Lessee cannot viably operate its business in the Leased Premises, or (ii) Lessor reasonably expected to take more than determines that Lessor cannot restore the Leased Premises within one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with date of such damage or casualty, Lessor shall promptly provide written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtythereof to Lessee, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither whereupon either party shall have any further obligation the right, by written notice to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.within thirty

Casualty; Condemnation. (a) IfIf any Casualty to the Bedford Premises or the Danbury Premises occurs the insurance proceeds for which is reasonably estimated by Tenant to be equal to or in excess of One Hundred Thousand Dollars ($100,000) as increased annually by the CPI Ratio, between the date hereof Tenant shall give Landlord and the Effective Time Lender prompt notice thereof. So long as no Event of Default exists Tenant is hereby authorized to adjust, collect and compromise all claims under any of the Measurement Date insurance policies required by Section 15(a) (except public liability insurance claims payable to a Person other than Tenant, Landlord or Lender) and to execute and deliver on behalf of Landlord all necessary proofs of loss, receipts, vouchers and releases required by the Effective Time of Closing insurers and Landlord shall have the right to join with Tenant therein. Any final adjustment, settlement or compromise of any applicable Subsequent Closing for those Stores excluded from such claim shall be subject to the Transition Date Closingsprior written approval of Landlord (which approval shall not be unreasonably withheld, delayed or conditioned), any casualty and Landlord shall have the right to prosecute or damage is suffered with respect contest, or to any Seller Real Property for which a Closing has not then occurredrequire Tenant to prosecute or contest, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration claim, adjustment, settlement or repair compromise. If an Event of Default exists, Tenant shall not be entitled to adjust, collect or (iicompromise any such claim or to participate with Landlord in any adjustment, collection and compromise of the Net Award payable in connection with a Casualty. Tenant agrees to sign, upon the request of Landlord, all such proofs of loss, receipts, vouchers and releases. Each insurer is hereby authorized and directed to make payment under said policies, including return of unearned premiums, directly to Landlord or, if required by the Mortgage, to Lender instead of to Landlord. The Net Award shall be applied as provided in Section 17(c) with respect or, if the Casualty is a Termination Event, Section 18. The rights of Landlord under this Section 17(a) shall be extended to a Leased Real Property, give rise Lender if and to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at extent that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsMortgage so provides.

Casualty; Condemnation. (a) IfBorrower shall promptly notify Lender of any fire or other casualty or any notice of taking or eminent domain action or proceeding affecting the Property, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing threat of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty such action or damage is suffered with respect proceeding of which Borrower becomes aware. Provided no Event of Default then exists and Borrower certifies as to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”)same, the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover net insurance proceeds shall be Purchased Assets hereunder paid to Lender but shall be made available by Lender for the restoration or repair of the Property if: (i) in Lender's reasonable judgment (a) restoration or repair and the parties continued operation of the Resort is economically feasible, and (b) the value of Lender's security is not reduced; (ii) the cost of restoration or repair does not exceed the net insurance proceeds or Borrower or the Association shall execute any amendments provide a Borrower's Deposit or other evidence satisfactory to this Agreement reasonably requested Lender in its sole discretion that Borrower or the Association can pay all costs of restoration in excess of such net insurance proceeds; (iii) the loss does not occur in the six (6) month period preceding the Maturity Date as defined in the Construction Note; (iv) Borrower has sufficient business interruption insurance to provide alternative accommodations for all owners or users entitled to occupancy at the Project affected by such casualty loss; and (v) Lender's Inspecting Architect/Engineers certify that the restoration of the Property can be completed at least ninety (90) days prior to the Maturity Date. Borrower or the Association shall pay all amounts, in addition to the net insurance proceeds, necessary to effect pay in full the transfer of such proceeds. If, between the date hereof and the Effective Time cost of the Measurement Date restoration or repair. Notwithstanding the Effective Time of Closing of any applicable Subsequent Closingforegoing, any casualty or damage is suffered with respect it shall be a condition precedent to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer disbursement of insurance proceeds held by Lender hereunder that Lender shall have no right approved (x) all plans and specifications for any proposed repair or restoration; (y) the construction schedule; and (z) the architect's and general contractor's contracts for restoration. Lender may establish other conditions it deems reasonably necessary to exclude assure the Seller Real Propertywork is fully completed in a good and workmanlike manner free of all liens or claims by reason thereof, and in compliance with all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at applicable laws, rules and regulations. At Lender's option, the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover net insurance proceeds shall be Purchased Assets hereunder disbursed pursuant to a construction escrow acceptable to Lender. If an Event of Default then exists, or any of the conditions set forth in this subsection have not been met or satisfied, the net insurance proceeds (after deduction of Lender's reasonable costs and expenses, if any, in collecting same) shall be applied to the parties shall execute Loan in such order and manner as Lender may elect, whether or not due and payable, with any amendments excess paid to this Agreement reasonably requested necessary to effect the transfer of such proceedsBorrower.

Casualty; Condemnation. (a) IfIn the event that, between prior to Closing, the date hereof and the Effective Time Office Condominium or any of the Measurement Date (other Assigned Interests, or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)part thereof, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Propertyis destroyed or damaged, be reasonably expected to take more than one hundred eighty and such damage exceeds One Hundred Thousand and 00/100 Dollars (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”$100,000.00), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if condemnation proceedings are commenced against the applicable Closing is Office Condominium or any of the Subsequent Closingother Assigned Interests, which in Assignee’s reasonable discretion materially and adversely affect the aggregate Store Purchase Price use and operation thereof, Assignee shall have the right, exercisable by giving notice of such decision to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price Assignor within three (without duplication3) and Business Days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement, in which case neither party shall have any further obligation rights or obligations hereunder except for those obligations which expressly survive the termination of this Agreement and the Deposit shall be returned to Assignee. If (i) the casualty damage does not exceed One Hundred Thousand and 00/100 Dollars ($100,000.00), (ii) the condemnation does not in Assignee’s reasonable discretion materially and adversely affect the use and operation of the Office Condominium or any of the other Assigned Interests, or (iii) Assignee elects as set forth in the preceding sentence to accept the Office Condominium or any of the other Assigned Interests, Assignee shall accept the Office Condominium or any of the other Assigned Interests in its then condition and proceed with the Closing with no reduction, offset or abatement of the Purchase Price and accept, as its sole recourse against Assignor payment or assignment of (i) applicable insurance proceeds, if any, from policies of insurance maintained and paid for by Assignor covering the Office Condominium or any of the other Assigned Interests up to the other hereunder with respect amount paid by the insurer and necessary to make the repairs or restorations and to compensate Assignee for loss of rents during its ownership period, or (ii) any condemnation award, subject to the Carved-Out Assets and Carved-Out Liabilities related rights of the Tenants to such proceeds or awards under the Tenant Leases, if any. Assignor shall credit the Purchase Price to the extent any deductible exists that Storeis the Assignor's responsibility under any policies of insurance, except which credit shall not exceed the amount of such damages. The Closing shall automatically be extended as may be expressly necessary for the timeframes set forth herein to run; provided herein. In however, the event that such Buyer does not timely elect Closing may occur prior to exclude the Carved-Out Assets final settlement with and Carved-Out Liabilities related to any such affected Store from payment by the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicableinsurer, in the full amount event of any deductible)casualty damage or final settlement and payment of condemnation proceeds, and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as if applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that prior to Closing (a) any condemnation, eminent domain or similar action is instituted or threatened for the taking or appropriation of all or any part of the Real Property or affecting the construction, development, use, ownership or operation thereof ("Taking"), or (b) any fire, flood, earthquake, or other casualty destroys or damages all or any part of the Real Property or the construction, development, use, ownership or operation thereof ("Casualty"), Seller shall notify Buyer of such fact promptly following Seller’s receipt of notice or knowledge thereof and Buyer does not shall have ten (10) business days after receipt of such notice ("Casualty/Condemnation Election Period") to elect, in its sole discretion, to terminate this Agreement or proceed to Closing. If Buyer elects to terminate this Agreement, then the Deposit actually received by Escrow Agent shall be immediately returned to Buyer (subject to any surviving obligations required by this Agreement), and all awards, proceeds and compensation for such Taking or Casualty shall be the property of Seller. If Buyer fails to notify Seller of its election to terminate this Agreement within the Casualty/Condemnation Election Period, then this termination right shall be deemed waived for the Taking or Casualty. If Closing is otherwise scheduled to occur earlier, the Closing shall be extended to be consistent with the expiration of the Casualty/Condemnation Election Period. If Buyer elects to proceed to Closing (whether affirmatively or through failure to timely elect to exclude the Carved-Out Assets terminate this Agreement), then Seller shall assign and Carved-Out Liabilities related transfer to Buyer at Closing all of Seller’s right, title and interest in, and any such affected Store from the applicable Closingsums received by Seller with respect to, any insurance all damages, settlements, awards, proceeds and compensation arising therefrom (net of Seller’s costs of collection), including under Seller’s insurance policies, of whatsoever kind and nature (but in all rights to recover cases exclusive of any environmental insurance proceeds in respect thereof by Seller claims and coverages under any current or Parent shall be assigned to such Buyer at the applicable Closing (prior policies), and such Buyer shall receive purchase the Property as provided herein with no reduction in the Purchase Price on account thereof, other than for any deductible under Seller’s insurance policies in the case of any Casualty covered under such insurance policies, unless otherwise agreed in writing by the parties; the foregoing is expressly subject to the rights of any lender whose collateral is part of or all of the Property. Notwithstanding the foregoing, Buyer may not terminate this Agreement pursuant to this Section 7 as a result of Casualty damage if the cost to repair such damage is equal to or less than $100,000 and Seller (in its sole discretion) elects to repair such damage or give Buyer a credit against the Base Purchase Price or Store Purchase Price, as applicable, at Closing in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedstotal repair cost.

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any If an insured casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would condemnation occurs where (i) with respect in the reasonable judgment of Administrative Agent, (x) the Premises can be restored in a manner that results in the Loan to an Owned Real PropertyValue Ratio not exceeding sixty-five percent (65%) and, be reasonably expected (y) rents payable under Leases that are either not cancelable due to take more such casualty or, if cancelable, the tenants thereunder have delivered written notice that they have waived such termination right, are sufficient to achieve a Debt Service Coverage Ratio of not less than one hundred eighty (180) days to complete any such restoration or repair or 1.45:1.00, (ii) in the reasonable judgment of Administrative Agent, the Premises can be restored within twelve (12) months thereafter, and at least six (6) months before the scheduled Maturity Date, and prior to the expiration of the rental or business interruption insurance with respect thereto, to a Leased Real Propertysubstantially the same condition and economic value and viability immediately prior to such casualty or condemnation; (iii) the amount of insurance proceeds or condemnation award received by Borrower shall be sufficient, give rise in Administrative Agent’s reasonable judgment, to pay the landlord’s right cost of termination under such restoration, and, if not, Borrower shall have deposited with Administrative Agent the amount of any shortfall; and (iv) no Event of Default shall have occurred and be then continuing, then any insurance proceeds or condemnation award, as applicable Lease (a after reimbursement of any expenses incurred by Administrative Agent in connection therewith), shall be applied to reimburse Borrower for the cost of restoring, repairing, replacing or rebuilding the Premises (the “Major CasualtyRestoration”), in the applicable Buyer may elect manner and pursuant to exclude procedures and documentation reasonably required by Administrative Agent. Borrower shall promptly commence and diligently prosecute any such Restoration. Upon completion of a Restoration, if any insurance proceeds or condemnation awards, as applicable, then being held by Administrative Agent are not necessary to pay the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice costs of such exclusion within five days Restoration, so long as no Event of Default has occurred and is continuing, Borrower shall have the right to request disbursements of such Buyer’s receipt of written notice excess proceeds from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price time to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation time to the other hereunder pay operating expenses with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinPremises. In addition, if no Cash Sweep Period exists for two consecutive DSCR Test Periods following the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer completion of such proceeds. IfRestoration, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect Administrative Agent shall promptly disburse all such exceeds proceeds to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsBorrower.

Casualty; Condemnation. (ai) IfThe Transferors, between after learning of any fire or other casualty on or to the date hereof Xxxxxxx Property, shall promptly notify Seller thereof, and, as soon as reasonably practicable thereafter, the Transferors shall provide Seller with an estimate of the cost of repairs and the Effective Time amount of insurance proceeds available to undertake such repairs. Within ten (10) days after receipt of such notices and estimates, Seller shall in turn notify the Transferors whether Seller wants the Transferors to commence repair of the Measurement Date (resultant damage of the Xxxxxxx Property. If Seller wants the Transferors to so commence, or if Transferors, in the Effective Time exercise of Closing prudent business judgment, decide to so commence, the Transferors shall proceed to repair the Xxxxxxx Property but shall not be obligated to expend more than any collected insurance proceeds and the amount of any applicable Subsequent insurance deductible. Should such fire or other casualty create an emergency situation, the Transferors may elect to take such measures to protect, secure and repair the Xxxxxxx Property as the Transferors in their own discretion determine. At the Closing for those Stores excluded from Date, the Transition Date ClosingsTransferors shall pay to Seller any proceeds they have received in respect of any such fire or other casualty; provided, however, that if the Transferors have undertaken any repairs in accordance with this Section 5(p)(i), the Transferors shall turn over to Seller the balance of any casualty unused insurance proceeds in the Transferors' possession. At the Closing, the Transferors shall also assign (without warranty or damage recourse to the Transferors) to Seller all of the Transferors' rights to any payments to be made after the Closing Date under any hazard insurance policy then in effect with respect to the Xxxxxxx Property. If it is suffered necessary to prosecute a claim to maximize the proceeds of insurance recovery, from and after the Closing Date the Transferors shall diligently undertake such prosecution for the benefit of Seller. The Transferors shall not enter into any agreement to undertake repairs with a term that extends beyond the Closing Date without the prior written consent of Seller, which consent shall not be unreasonably withheld. Following the Closing Date, except as set forth above, the Transferors shall have no further liability or responsibility with respect to any such preceding fire or other casualty at the Xxxxxxx Property. Following the Closing Date, Seller Real Property shall reimburse the Transferors for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete the cost of any such restoration or repair or (ii) with respect to a Leased Real Property, give rise repairs made by the Transferors prior to the landlord’s right of termination under Closing and not reimbursed by the applicable Lease (a “Major Casualty”)Transferors' hazard insurance company, the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that extent Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, receives any insurance proceeds from and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at after the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsDate.

Casualty; Condemnation. In the event the Premises shall be destroyed or damaged by fire or other casualty during any term of this Lease, whereby the same shall be rendered untenantable, then the Lessor shall have the right to render said Premises tenantable by repairs within ninety (a90) If, between days from the date hereof and the Effective Time of the Measurement Date (damage or destruction. During the Effective Time period of Closing repair and reconstruction, rent will be equatable abated based upon the square footage of any applicable Subsequent Closing for those Stores excluded from space remaining untenantable. If the Transition Date Closings)Premises are not rendered tenantable within said time, any casualty or damage is suffered with respect if a major portion of the Premises has be ' en destroyed so that it can not be rendered tenantable within said time, either party shall have the right to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtycancel this Lease, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price rent shall be reduced paid to the date of cancellation. If the whole or any portion of the Premises is condemned for any public use or purpose by any legally constituted authority with the applicable Base Store Purchase Price (without duplication) or (ii) if result that the applicable Closing is same are no longer reasonably suitable for Lessee's continued use thereof for the Subsequent Closingpurposes set forth in Paragraph 1 hereof, then Lessee shall have the aggregate Store Purchase Price to be paid at that Subsequent Closing option of canceling this Lease, and rent shall be reduced by accounted f or between Lessor and Lessee as of the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereindate of taking. In the event that any such Buyer condemnation does not timely elect to exclude render the Carved-Out Assets and Carved-Out Liabilities related to any such Premises unsuitable for Lessee's continued use, this Lease shall not be affected Store from the applicable Closingthereby, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent except that rent shall be assigned abated for the loss of rentable space taken by condemnation in the proportion that the space taken bears to such Buyer at 16,800 square feet. In the applicable Closing (and such Buyer event of any condemnation, Lessor shall receive a credit be entitled to all compensation to be paid by the condemning authority, except that Lessee may pursue any claim Lessee may have against the Base Purchase Price condemning authority for business interruption, loss of profits, or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsmoving expenses.

Casualty; Condemnation. (a1) If, between the date hereof and the Effective Time If a “material” part (as hereinafter defined) of any of the Measurement Date Properties is damaged or destroyed by fire or other casualty, Seller shall notify Purchaser of such fact and, except as hereinafter provided, Purchaser shall have the option to delete such Property from this Agreement upon notice to Seller given not later than ten (or 10) days after receipt of Seller’s notice. Notwithstanding the Effective Time of Closing foregoing, if a “material” part of any applicable Subsequent of the Properties is damaged or destroyed and Purchaser elects to delete such Property from this Agreement as provided above, Purchaser’s election shall be ineffective if within ten (10) days after Seller’s receipt of Purchaser’s election notice, Seller shall elect by notice to Purchaser to repair such damage or destruction and shall thereafter complete such repair within ninety (90) days after the then scheduled Closing Date at the time of Purchaser’s election. If Seller makes such election to repair, Seller shall have the right to adjourn the Closing Date one or more times for those Stores excluded from up to ninety (90) days in the Transition Date Closings), any casualty aggregate in order to complete such repairs and shall have the right to retain all insurance proceeds which Seller may be entitled to receive as a result of such damage or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would destruction. If (i) with respect Purchaser does not elect to an Owned Real Propertydelete such Property from this Agreement, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect Purchaser elects to a Leased Real Propertydelete such Property from this Agreement but such election is ineffective because Seller elects to repair such damage and completes such repair within such 120-day period provided above, give rise or (iii) there is damage to or destruction of an “immaterial” part (“immaterial” is herein deemed to be any damage or destruction which is not “material”, as such term is hereinafter defined) of any of the Properties, Purchaser shall close title as provided in this Agreement and, at the Closing, Seller shall, unless Seller has repaired such damage or destruction prior to the landlord’s right Closing, apply the proceeds of termination under any insurance collected by Seller in accordance with the applicable Lease (a terms of the Lease. A “Major Casualty”), material” part of any of the applicable Buyer may elect Properties shall be deemed to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) have been damaged or destroyed if the applicable Closing is a Transition Date Closing, the Base Purchase Price cost of repair or replacement shall be reduced by the applicable Base Store Purchase Price (without duplication) $250,000 or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except more as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof reasonably as estimated by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price if Tenant can terminate its Lease or Store Purchase Pricexxxxx rent thereunder, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time Property cannot be legally occupied. This provision shall not survive Closing or the termination of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsAgreement.

Casualty; Condemnation. In the event the Improvements are materially destroyed or damaged in an amount exceeding three hundred thousand dollars (a) If$300,000), or if condemnation proceedings are threatened or commenced against all or any material portion of the Property, in each case between the date hereof and the Effective Time of date the Measurement Date (or same is scheduled to be acquired by Buyer pursuant to this Agreement, Buyer shall have the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)option, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets exercisable in its sole discretion and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written giving notice of such exclusion decision to Seller within five ten (10) business days of such after Buyer’s receipt of written notice from Seller of such Major Casualtydamage, in which event (i) if the applicable Closing is a Transition Date Closingdestruction or condemnation proceedings, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinterminate this Agreement. In the event that such Buyer does not timely elect to exclude so terminate, (i) in the Carved-Out Assets and Carved-Out Liabilities related case of condemnation, Seller shall assign to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing all of its right, title and interest in and to all proceeds resulting from such condemnation of the Property, after deducting therefrom any third party costs or expenses incurred by Seller in settling, adjusting or compromising such condemnation award, including the right to apply for and prosecute the same, which proceeds shall be held by Seller until disbursed in accordance with the provisions of Section 6.5 of the Net Lease; provided however, that this assignment shall not preclude Seller from filing a separate claim for non-real property related condemnation proceeds (other than the Personal Property), including but not limited to, loss of business, future profits, and good will; damages related to stock and/or trade fixtures, furniture and other personal property belonging to Seller; the cost of removing fixtures, equipment and inventory; moving expenses related to the relocation of the business, and any and all other related damages or expenses incurred as a result thereof and for loss of or damage to its leasehold interest in the Property, provided that such Buyer claim shall receive a credit against not diminish any condemnation award otherwise due to Buyer; and (ii) in the Base Purchase Price case of casualty, Seller shall repair such damage at its expense prior to the Closing, or Store Purchase Priceif that is impossible, as applicablethen promptly following such Closing, in the full amount of any deductible), and, notwithstanding anything herein manner and subject to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time standards in Section 5.5 of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsNet Lease.

Casualty; Condemnation. (a) If, between prior to the date hereof Closing Date, all or any part of the Property is substantially damaged by fire, casualty, the elements or any other cause, Seller shall immediately give notice to Buyer, and Buyer shall have the right to terminate this Agreement and receive back all Xxxxxxx Money, including interest accrued thereon, by giving written notice within thirty (30) days after Seller’s notice. If Buyer shall fail to give the notice, then the parties shall proceed to Closing, and Seller shall assign to Buyer all rights to insurance proceeds resulting from such event and the Effective Time Purchase Price will be reduced by the amount of Seller’s deductible and any uninsured loss. For purposes of this Section, the words “substantially damaged” mean damage to any one of the Measurement Date (or buildings included in the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage that would either (i) with respect to constitute an Owned Real Propertyuninsured loss in excess of $250,000.00, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect cost (as so determined) in excess of $500,000.00 or more to a Leased Real Propertyrepair. In the event of damage to the Property by fire, give casualty, the elements or other cause that does not rise to the landlordlevel of “substantially damaged” based on the definition above, Seller will either repair such damage or assign to Buyer all rights to insurance proceeds resulting from such event. In the event of any casualty, Seller agrees to consult with Buyer and cooperate with reasonable requests of Buyer to complete repairs in a way that is consistent with any renovation plans that may be contemplated by Buyer. If, prior to the Closing Date, any governmental entity commences any eminent domain proceedings (“Proceedings”) against all or any part of the Property, Seller shall immediately give notice to Buyer of such fact, and, if such Proceedings are material, then Buyer shall have the option (to be exercised by written notice to Seller within thirty (30) DMNORTH #7708141 v4 days after Seller’s right of termination under the applicable Lease (a “Major Casualty”notice), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtyterminate this Agreement, in which event Title Company shall return the Xxxxxxx Money, including interest accrued thereon, to Buyer. Upon such return, neither Seller nor Buyer shall have any further rights or obligations under this Agreement, except for those covenants that expressly survive. If Buyer does not give such notice, or if such Proceedings are not material, then there shall be no reduction in the Purchase Price, and Seller shall assign to Buyer at the Closing Date all of Seller’s right, title, and interest in and to any award made or to be made in the Proceedings. Prior to the Closing Date, Seller shall not designate counsel, appear in, or otherwise act with respect to the Proceedings without Buyer’s prior written consent. For purposes of this Section, the words “Proceedings are material” shall mean the taking includes: (i) if any part of any building included in the applicable Closing is a Transition Date ClosingProperty, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if parking that cannot be replaced on the remaining portions of the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (ai) IfThe Transferors, between after learning of any fire or other casualty on or to the date hereof Gilbert Property, shall promptly notify Seller thereof, axx, xx soon as reasonably practicable thereafter, the Transferors shall provide Seller with an estimate of the cost of repairs and the Effective Time amount of insurance proceeds available to undertake such repairs. Within ten (10) days after receipt of such notices and estimates, Seller shall in turn notify the Transferors whether Seller wants the Transferors to commence repair of the Measurement Date (or resultant damage of the Effective Time Gilbert Property. If Seller wants the Transferors to so commexxx, xx if Transferors, in the exercise of Closing prudent business judgment, decide to so commence, the Transferors shall proceed to repair the Gilbert Property but shall not be obligated to expend morx xxxx any collected insurance proceeds and the amount of any applicable Subsequent insurance deductible. Should such fire or other casualty create an emergency situation, the Transferors may elect to take such measures to protect, secure and repair the Gilbert Property as the Transferors in their own discretixx xxxxrmine. At the Closing for those Stores excluded from Date, the Transition Date ClosingsTransferors shall pay to Seller any proceeds they have received in respect of any such fire or other casualty; provided, however, that if the Transferors have undertaken any repairs in accordance with this Section 5(p)(i), the Transferors shall turn over to Seller the balance of any casualty unused insurance proceeds in the Transferors' possession. At the Closing, the Transferors shall also assign (without warranty or damage recourse to the Transferors) to Seller all of the Transferors' rights to any payments to be made after the Closing Date under any hazard insurance policy then in effect with respect to the Gilbert Property. If it is suffered necessary to prosecute a claim to xxxxxxxe the proceeds of insurance recovery, from and after the Closing Date the Transferors shall diligently undertake such prosecution for the benefit of Seller. The Transferors shall not enter into any agreement to undertake repairs with a term that extends beyond the Closing Date without the prior written consent of Seller, which consent shall not be unreasonably withheld. Following the Closiet forth above, the Transferors shall have no further liability or responsibility with respect to any such preceding fire or other casualty at the Gilbert Property. Following the Closing Date, Seller Real Property shaxx xxxxburse the Transferors for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete the cost of any such restoration or repair or (ii) with respect to a Leased Real Property, give rise repairs made by the Transferors prior to the landlord’s right of termination under Closing and not reimbursed by the applicable Lease (a “Major Casualty”)Transferors' hazard insurance company, the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that extent Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, receives any insurance proceeds from and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at after the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsDate.

Casualty; Condemnation. (a) If, between prior to the date hereof and the Effective Time Closing Date, all or part of the Measurement Date (Property is damaged by fire or the Effective Time of Closing of by any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)other cause whatsoever, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, shall promptly give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within damage. If the cost of repairing such damage is not in excess of five days percent (5%) of the Purchase Price, then Buyer shall have the right at Closing to receive, to the extent such sums have not been expended on repair work, (1) all insurance proceeds payable as a result of such Buyer’s receipt loss, or (2) an assignment of Seller's rights to such insurance proceeds without recourse, and this Agreement shall continue in full force and Seller shall have no obligation to repair such damage. If the cost of repairing damage from such casualty is greater than five percent (5%) of the Purchase Price, then Buyer shall have the right, for a period of ten (10) days from the date of notice of the amount of damage caused by the casualty, to terminate this Agreement by giving written notice from of termination to Seller within such period. Upon such termination, the parties hereto shall be released of such Major Casualty, in any further liability hereunder except for provisions which event survive a termination and except that (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price Buyer shall be reduced by entitled to a return of the applicable Base Store Purchase Price (without duplication) or Deposit and (ii) if Buyer shall return any documents provided by Seller to Buyer. If Buyer fails to notify Seller within such period of Buyer's intention to terminate this Agreement, then Buyer shall proceed to Closing and, to the applicable Closing is extent such sums have not been expended on repair work, all insurance proceeds received by Seller as a result of such casualty loss including the Subsequent Closingamount of any deductible, the aggregate Store Purchase Price to shall be paid to Buyer at that Subsequent Closing shall be reduced Closing. If such proceeds have not yet been received by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that StoreSeller, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all then Seller's rights to recover insurance such proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (without recourse and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right obligation to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to repair such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsdamage.

Casualty; Condemnation. In the event the Improvements on either Property are materially destroyed or damaged in an amount exceeding three hundred thousand dollars (a) If$300,000), or if condemnation proceedings are threatened or commenced against all or any material portion of either of the Properties in each case between the date hereof and the Effective Time of date the Measurement Date (or same is scheduled to be acquired by Buyer pursuant to this Agreement, Buyer shall have the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)option, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets exercisable in its sole discretion and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written giving notice of such exclusion decision to Seller within five ten (10) business days after Buyer's receipt of notice of such Buyer’s receipt of written notice from Seller of such Major Casualtydamage, in which event (i) if the applicable Closing is a Transition Date Closingdestruction or condemnation proceedings, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinterminate this Agreement. In the event that such Buyer does not timely elect to exclude so terminate, (i) in the Carved-Out Assets case of condemnation, Seller shall cause Target to assign to Buyer at the Closing all of its right, title and Carved-Out Liabilities related interest in and to all proceeds resulting from such condemnation of such Property, after deducting therefrom any third party costs or expenses incurred by Target in settling, adjusting or compromising such affected Store from condemnation award, including the applicable Closingright to apply for and prosecute the same, any insurance which proceeds and all rights to recover insurance proceeds in respect thereof shall be held by Seller or Parent Target until disbursed in accordance with the provisions of Section 6.5 of the Net Lease; provided however, that this assignment shall be assigned not preclude Target from filing a separate claim for non-real property related condemnation proceeds (other than the Personal Property), including but not limited to, loss of business, future profits, and good will; damages related to stock and/or trade fixtures, furniture and other personal property belonging to Target; the cost of removing fixtures, equipment and inventory; moving expenses related to the relocation of the business, and any and all other related damages or expenses incurred as a result thereof and for loss of or damage to its leasehold interest in the Property, provided that such Buyer claim shall not diminish any condemnation award otherwise due to Buyer; and (ii) in the case of casualty, Seller shall repair or cause Target to repair such damage at its expense prior to the applicable Closing (and Closing, or if that is impossible, then promptly following such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicableClosing, in the full amount of any deductible), and, notwithstanding anything herein manner and subject to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time standards in Section 5.5 of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsNet Lease.

Casualty; Condemnation. If, prior to Closing, any Partnership Property or any part thereof shall be condemned, or destroyed or damaged by fire or other casualty, or if any proceeding shall be instituted for the taking in condemnation or by eminent domain of all or a portion of any Partnership Property, the Seller Parties shall promptly so notify Buyer. Upon Closing Buyer shall be entitled (a) Ifin the event of a condemnation, between to receive the condemnation proceeds (as and when paid if after Closing), and (b) in the event of a casualty, to receive the proceeds of insurance applicable thereto (including, if applicable, any rent loss proceeds for the post-Closing restoration period) and the Seller Parties shall give Buyer a credit (as a dollar for dollar reduction in the Purchase Price) in the amount of any deductible or coinsurance amount under the applicable Insurance Policies (but not for any uninsured loss, unless the failure to maintain such insurance constitutes a breach of the Seller Parties’ obligations under Section 2.17. Any proceeds or awards paid to the Partnership or any Partnership Subsidiary after the date hereof in connection with a casualty or condemnation shall not be distributed to the Seller Parties, but the Partnership or applicable Partnership Subsidiary shall be entitled to use any such proceeds or awards to repair any damage done by such casualty or condemnation to the Partnership Property. Buyer may participate in the negotiations regarding the settlement of any claim for proceeds resulting from a casualty or condemnation and Seller Parties will neither cause nor permit the Effective Time Partnership or applicable Partnership Subsidiary to settle any such claim without obtaining Buyer’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed. In addition, the Seller Parties agree that, without obtaining Buyer’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed, neither the Partnership nor any Partnership Subsidiary will make any repairs to, or otherwise restore, the Partnership Property, other than repairs required to protect the health or safety of any person or property at such Partnership Property and except as required by the Measurement Date (terms of any Ground Lease, Partnership Space Lease or other agreement to which the Partnership or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty Partnership Subsidiary is a party or damage which is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise otherwise applicable to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinPartnership Property. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price for the amount of any proceeds or Store Purchase Price, awards payable to Buyer as applicableset forth above but which are instead retained by any lender (other than sums, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time case of the Measurement Date or Mortgage Debt, which the Effective Time of Closing of any applicable Subsequent Closinglender is obligated, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at under the applicable Closing (loan documents, to apply to repair and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductiblerestoration following Closing), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (ai) IfThe Transferors, between after learning of any fire or other casualty on or to the date hereof Gilbert Property, shall promptly notify Seller thereof, xxx, xs soon as reasonably practicable thereafter, the Transferors shall provide Seller with an estimate of the cost of repairs and the Effective Time amount of insurance proceeds available to undertake such repairs. Within ten (10) days after receipt of such notices and estimates, Seller shall in turn notify the Transferors whether Seller wants the Transferors to commence repair of the Measurement Date (resultant damage of the Gilbert Property. If Seller wants the Transferors to so commence, or xx Transferors, in the Effective Time exercise of Closing prudent business judgment, decide to so commence, the Transferors shall proceed to repair the Gilbert Property but shall not be obligated to expend more xxxx xxy collected insurance proceeds and the amount of any applicable Subsequent insurance deductible. Should such fire or other casualty create an emergency situation, the Transferors may elect to take such measures to protect, secure and repair the Gilbert Property as the Transferors in their own discretion xxxxxmine. At the Closing for those Stores excluded from Date, the Transition Date ClosingsTransferors shall pay to Seller any proceeds they have received in respect of any such fire or other casualty; provided, however, that if the Transferors have undertaken any repairs in accordance with this Section 5(p)(i), the Transferors shall turn over to Seller the balance of any casualty unused insurance proceeds in the Transferors' possession. At the Closing, the Transferors shall also assign (without warranty or damage recourse to the Transferors) to Seller all of the Transferors' rights to any payments to be made after the Closing Date under any hazard insurance policy then in effect with respect to the Gilbert Property. If it is suffered necessary to prosecute a claim to maximize the proceeds of insurance recovery, from and after the Closing Date the Transferors shall diligently undertake such prosecution for the benefit of Seller. The Transferors shall not enter into any agreement to undertake repairs with a term that extends beyond the Closing Date without the prior written consent of Seller, which consent shall not be unreasonably withheld. Following the Closing Date, except as set forth above, the Transferors shall have no further liability or responsibility with respect to any such preceding fire or other casualty at the Gilbert Property. Following the Closing Date, Seller Real Property shaxx xxxxburse the Transferors for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete the cost of any such restoration or repair or (ii) with respect to a Leased Real Property, give rise repairs made by the Transferors prior to the landlord’s right of termination under Closing and not reimbursed by the applicable Lease (a “Major Casualty”)Transferors' hazard insurance company, the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that extent Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, receives any insurance proceeds from and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at after the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsDate.

Casualty; Condemnation. (a) If, between prior to the date hereof and the Effective Time Closing Date, all or any portion of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage Property is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration destroyed or repair damaged by fire or other casualty or (ii) with respect to taken as a Leased Real Propertyresult of any condemnation or eminent domain proceedings, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice Sellers will notify Purchaser of such exclusion within five days casualty or condemnation. Purchaser will have the option, in the event of such Buyer’s a Material Casualty Event or Material Condemnation, to terminate this Agreement in its entirety upon notice to Sellers given not later than ten (10) Business Days after receipt of written notice from Seller of such Major CasualtySellers’ notice. If this Agreement is terminated, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and thereafter neither party shall Sellers nor Purchaser will have any further obligation rights or obligations to the other hereunder except with respect to the Carved-Out Assets Termination Surviving Obligations. If Purchaser does not elect to terminate this Agreement within such ten (10) Business Day period, or if the fire or other casualty or condemnation does not rise to the level of being a Material Casualty Event or Material Condemnation, as applicable, Sellers will not be obligated to repair such damage, destruction or taking, but (a) the applicable Seller will assign and Carved-Out Liabilities related turn over to Purchaser all of the insurance proceeds or condemnation awards net of reasonable collection costs (or, if such have not been awarded, all of its right, title and interest therein, including on account of business or rental interruption or a temporary taking relating to the period of time from and after Closing) payable with respect to such fire or other casualty (excluding any proceeds of insurance that Storeare payable on account of any business 46 interruption, rental insurance or similar coverage intended to compensate such Seller for loss of rental or other income from the Property attributable to periods prior to the Closing) or condemnation, and (b) the parties will proceed to Closing pursuant to the terms hereof without abatement of the Purchase Price, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall Purchaser will receive a credit against cash due at Closing for the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of the deductible on such insurance policy less any deductible), and, notwithstanding anything herein amounts expended by the applicable Seller to the contrary, collect any such insurance proceeds and rights or to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute make such repairs approved by Purchaser or otherwise made to remedy any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer unsafe conditions at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsProperty.

Casualty; Condemnation. (a) If, between prior to the date hereof and the Effective Time Closing Date, all or part of the Measurement Date (Property is damaged by fire or the Effective Time of Closing of by any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)other cause whatsoever, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, shall promptly give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days damage. If the cost of repairing such damage is not in excess of One Million and xx/100 Dollars ($1,000,000.00), then Buyer shall have the right at Closing to receive, to the extent such sums have not been expended on repair work, (1) all insurance proceeds payable as a result of such Buyer’s receipt loss plus payment by Seller of any and all deductibles other than claims and proceeds for rent loss insurance for periods prior to the Closing Date, or (2) an assignment of Seller's rights to such insurance proceeds without recourse plus payment by Seller of any and all deductibles, and this Agreement shall continue in full force and Seller shall have no obligation to repair such damage. If the cost of repairing damage from such casualty is greater than One Million Dollars ($1,000,000.00), then Buyer shall have the right, for a period of ten (10) days from the date of notice of the amount of damage caused by the casualty, to terminate this Agreement by giving written notice from of termination to Seller within such period. Upon such termination, the parties hereto shall be released of such Major Casualty, in any further liability hereunder except for provisions which event survive a termination and except that (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price Buyer shall be reduced by entitled to a return of the applicable Base Store Purchase Price (without duplication) or Deposit and (ii) if the applicable Closing is the Subsequent ClosingBuyer shall return any Confidential Information. If Buyer fails to notify Seller within such period of Buyer's intention not to terminate this Agreement, the aggregate Store Purchase Price to be paid at that Subsequent Closing then Buyer shall be reduced deemed to have terminated the Agreement. If such proceeds have not yet been received by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that StoreSeller, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all then Seller's rights to recover insurance such proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (without recourse and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right obligation to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to repair such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsdamage.

Casualty; Condemnation. (a) IfIn the event that, between the date hereof Agreement Date and the Effective Time of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)Date, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned the Real Property, be reasonably expected to take more than one hundred eighty or any part thereof, is destroyed or damaged, and such is a Material Casualty (180) days to complete any such restoration or repair as defined below), or (ii) with respect to a Leased condemnation proceedings are commenced against the Real Property, give rise or any part thereof, and such is a Material Condemnation, Buyer shall have the right, exercisable by giving notice of such decision to the landlord’s right of termination under the applicable Lease Seller within ten (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with 10) Business Days after receiving written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtydamage, destruction or condemnation proceedings, to terminate this Agreement in its entirety, in which case neither party shall have any further obligation under this Agreement, except that either party shall have the right to enforce the Surviving Obligations. In the event of such termination, the Deposit shall be returned to Buyer, as Buyer’s sole and exclusive remedy. A “Material Casualty” occurs if any portion of the Real Property is damaged or destroyed and the cost to repair such damage exceeds $600,000.00. A “Material Condemnation” is any condemnation proceeding that is commenced against any part of the Real Property that would or could (i) materially and adversely affect the use and operation of the Property, (ii) result in any portion of the Improvements being taken; (iii) materially affect access to the Improvements; or (iv) result in the Property failing to comply with applicable law or ordinance. In the event the casualty damage to the Real Property is not a Material Casualty, or the condemnation is not a Material Condemnation, as applicable, or if Buyer does not elect to terminate this Agreement following a Material Casualty or Material Condemnation as provided above, then Buyer shall accept the Real Property in its then condition and proceed with the Closing with no reduction, offset or abatement of the Purchase Price, and accept, as its sole recourse against Seller payment or assignment of (i) all applicable proceeds of insurance, if any, from policies of insurance maintained and paid for by or on behalf of Seller (including its affiliates) covering the Real Property up to the amount paid by the insurer and necessary to make the repairs or restorations (or, if assignment of insurance proceeds is not available under the terms of Seller’s insurance or if the applicable amount of the casualty loss cannot be determined prior to the Closing Date, Seller shall escrow with the Title Company from Seller’s proceeds at Closing an amount that the parties shall mutually agree is a Transition Date Closingadequate to make the repairs or restorations, the Base Purchase Price which escrowed funds shall be reduced disbursed in accordance with a mutually acceptable escrow agreement executed at Closing by the applicable Base Store Purchase Price (without duplication) parties and the Title Company), and, for avoidance of doubt, all business interruption and/or rent loss insurance proceeds that would have been received by Seller had the Closing not occurred shall be assigned to Buyer in connection therewith, or (ii) if any applicable condemnation awards. Seller shall credit the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to the extent any deductible exists that is Seller’s responsibility under any policies of insurance or to the extent of any uninsured amounts, which credit shall not exceed the amount of such damages; provided, however, that in the event Seller would otherwise be paid required to credit Buyer for uninsured amounts in excess of $25,000 pursuant to this sentence, then Seller shall promptly after learning of such uninsured loss (and in any event on or before Closing), elect by written notice to Buyer to provide Buyer with a credit at that Subsequent Closing equal to either (a) such entire uninsured amount, as reasonably estimated the parties, or (b) $25,000. Without limiting Buyer’s rights in this Section 12, upon receipt of Seller’s election as provided above, if Seller elects option (b) in the immediately preceding sentence, then Buyer shall have the option to elect either to (I) to terminate this Agreement in its entirety, in which case the Deposit shall be reduced by the applicable Store Purchase Price (without duplication) returned to Buyer and neither party shall have any further obligation under this Agreement, except that either party shall have the right to enforce the Surviving Obligations, or (II) accept the $25,000 uninsured loss credit and accept the Real Property in its then condition and proceed with the Closing pursuant to the terms of this Section 12 (including any assignment of insurance proceeds and other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except credits as herein provided). The Closing shall automatically be extended as may be expressly necessary for the timeframes set forth herein to run; provided herein. In however, the event that such Buyer does not timely elect Closing may occur prior to exclude the Carved-Out Assets final settlement with and Carved-Out Liabilities related to any such affected Store from payment by the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicableinsurer, in the full amount event of any deductible)casualty damage or final settlement and payment of condemnation proceeds, and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as if applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.

Casualty; Condemnation. (a) IfIn the event that, between prior to Closing, the date hereof and the Effective Time of the Measurement Date (Property, or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)part thereof, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Propertyis destroyed or materially damaged, be reasonably expected to take more than one hundred eighty (180) days to complete any and such restoration or repair or (ii) with respect to a Leased Real Propertydamage exceeds $500,000, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if condemnation proceedings are commenced against the applicable Closing is Property, Buyer shall have the Subsequent Closingright, the aggregate Store Purchase Price exercisable by giving notice of such decision to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price Seller within ten (without duplication10) and business days after receiving written notice of such damage, destruction or condemnation proceedings, to terminate this Agreement, in which case neither party shall have any further obligation rights or obligations hereunder except for express indemnifications as provided hereunder of Buyer to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinSeller. In the event that of such Buyer termination, the Deposit shall be returned to Buyer, as Buyer’s sole and exclusive remedy. If (i) the casualty damage does not timely elect exceed $500,000, or (ii) Buyer elects as set forth in the preceding sentence to exclude accept the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase PriceProperty, as applicable, Buyer shall accept the Property in its then condition and proceed with the full Closing with no reduction, offset or abatement of the Purchase Price and accept, as its sole recourse against Seller payment or assignment of (i) applicable insurance proceeds, if any, from policies of insurance maintained and paid for by Seller covering the Property up to the amount paid by the insurer and necessary to make the repairs or restorations, or (ii) any applicable condemnation award, if any, subject to the rights of tenants to such proceeds or awards under the Leases, if any. Seller shall credit the Purchase Price to the extent any deductible exists that is the Seller’s responsibility under any policies of insurance, which credit shall not exceed the amount of any deductible), and, notwithstanding anything such damages. The Closing shall automatically be extended as may be necessary for the timeframes set forth herein to run; provided however, the contrary, such insurance proceeds Closing may occur prior to the final settlement with and rights to recover insurance proceeds shall be Purchased Assets hereunder and payment by the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicableinsurer, in the full amount event of any deductible)casualty damage or final settlement and payment of condemnation proceeds, and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsif applicable.

Casualty; Condemnation. In the event any condemnation or eminent domain proceedings are initiated prior to the Closing which might result in the taking of all or any portion of the Property or the use thereof or any fire, flood, explosion, accident or other casualty occurs which damages or destroys all or any material portion of the Property, then Purchaser may elect to: (a) If, between proceed to Closing without adjustment or offset to the date hereof and Purchase Price (except for an adjustment to the Effective Time Purchase Price upon the occurrence of a casualty in an amount equal to the Measurement Date (or the Effective Time lesser of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect the estimated reasonable, out-of-pocket cost to an Owned Real Propertyrepair the physical damages to the Property caused by such casualty, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect the deductible under Seller's insurance policy relating to a Leased Real Property, give rise such physical damages to the landlord’s right of termination under the applicable Lease (a “Major Casualty”Property), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) Seller shall assign at Closing all of its right, title and interest in and to, and deliver at Closing if received prior thereto or following Closing if and when received thereafter, such insurance and/or condemnation proceeds, if any, as the applicable Closing is a Transition Date Closingsame are paid or payable on account of such condemnation or casualty, the Base Purchase Price except that proceeds on account of rental and/or business interruption coverage or losses shall be reduced prorated as of the Closing Date when collected, and less and except amounts previously expended by the applicable Base Store Purchase Price (without duplication) Seller to repair such damages; or (iib) if terminate this Agreement by written notice to Seller within ten (10) days after Purchaser receives notice of any such casualty or condemnation (but no later than the applicable Closing is the Subsequent ClosingDate), the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and in which event neither party Seller nor Purchaser shall have any further rights or obligations hereunder or relating hereto, except pursuant to such provisions hereof as survive termination of this Agreement, and Purchaser shall be entitled to a refund of the Earnest Money in accordance with Section 3.5. In no event shall Xxxxxx have any obligation to repair or restore the other hereunder with respect Property or any portion thereof. The term "material" as used herein shall mean a casualty for which the cost to repair or restore the Carved-Out Assets damage arising therefrom is reasonably determined by Purchaser to be in excess of the deductible under Seller's insurance policy relating to such damage or a condemnation which Purchaser and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinSeller reasonably determine adversely affects the Property. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date condemnation or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualtymaterial, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent Purchaser shall be assigned deemed to such Buyer at have elected the applicable Closing rights and remedy in subparagraph (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsa) above.

Casualty; Condemnation. 10.1 If, prior to the Closing, any part of the Property is damaged or destroyed by earthquake, flood, landslide, fire or other casualty (a "CASUALTY"), or any portion of the Property is taken by eminent domain or condemnation proceeding (a "CONDEMNATION"), and such Casualty or Condemnation is a Non-Material Event (as hereinafter defined), (a) IfPurchaser shall not have any right or option to terminate this Agreement due to such Casualty or Condemnation and this Agreement shall remain in full force and effect, between (b) the date hereof parties shall consummate the Transfer without any reduction in the Purchase Price and (c) at the Effective Time Closing Purchaser shall accept the Property "AS-IS, WHERE-IS" subject to such Casualty or Condemnation (or so much of the Measurement Date (Property as remains after such Casualty or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date ClosingsCondemnation), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurredas the case may be. Notwithstanding the foregoing, which casualty or damage would at the Closing, (i) in the case of a Casualty, (A) Seller shall turn over and/or assign to Purchaser (without representation, warranty or recourse against Seller) the right to receive, and Purchaser shall be entitled to receive and keep, all casualty insurance proceeds paid or payable to Seller, if any, under insurance policy(ies) with respect to an Owned Real Propertysuch Casualty (and Seller shall have no obligation to repair such casualty), be reasonably expected (B) Seller shall credit to take more than one hundred eighty Purchaser at the Closing the amount of any insurance deductible and (180C) days Purchaser shall pay to complete any Seller at Closing the amount of the actual, reasonable expenses incurred by Seller in making repairs occasioned by such restoration Casualty which are required by applicable Legal Requirements, or repair which Seller, in its reasonable discretion, deems necessary for public safety reasons or to maintain or preserve the Property to the standards as of the date hereof, or, (ii) in the case of a Condemnation, (A) Seller shall turn over and/or assign to Purchaser (without representation, warranty or recourse against Seller) the right to receive, and Purchaser shall be entitled to receive and keep, all condemnation awards, if any, paid or payable to Seller with respect to a Leased Real Propertysuch Condemnation, give rise and (B) Purchaser shall pay to Seller at Closing the amount of the actual, reasonable expenses incurred by Seller in making repairs to the landlord’s right of termination under the Property which are required by applicable Lease (a “Major Casualty”)Legal Requirements, the applicable Buyer may elect or which Seller, in its reasonable discretion, deems necessary for public safety reasons or to exclude the Carved-Out Assets and Carved-Out Liabilities related maintain or preserve to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice standards as of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closinghereof, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then occasioned by such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsCondemnation.

Casualty; Condemnation. (a) IfIf before the Closing Date, between the date hereof and the Effective Time all or any portion of the Measurement Date (or the Effective Time of Closing of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings), any casualty or damage Purchased Assets is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect taken by eminent domain or is the subject of a pending or (to an Owned Real Propertythe Actual Knowledge of Seller) contemplated taking which has not been consummated, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect damaged or destroyed by fire or other casualty, Seller shall notify Buyer promptly in writing of such fact, then if the parties consummate the transactions contemplated hereby (including payment of the Purchase Price), (x) in the case of a condemnation, Seller shall assign or pay, as the case may be, any proceeds thereof to a Leased Real Property, give rise Buyer on the Closing Date (to the landlord’s right extent received prior to the Closing Date or promptly upon receipt if received thereafter) and (y) in the case of termination under a casualty, Seller shall either restore the applicable Lease damage or assign the insurance proceeds therefor (and pay the amount of any deductible and/or self-insured amount in respect of such casualty) to Buyer on the Closing Date (to the extent received prior to the Closing Date or promptly upon receipt if received thereafter). Notwithstanding the above, if such casualty or loss results in a “Major Casualty”)Material Adverse Effect prior to the Closing Date and the parties elect to consummate the transactions contemplated hereby, Buyer and Seller shall negotiate to settle the loss resulting from such taking (and such negotiation shall include, without limitation, the applicable Buyer may elect to exclude the Carved-Out Assets negotiation of a fair and Carved-Out Liabilities related equitable adjustment to the Store at that Closing Payment Amount and Final Net Book Value). If no such settlement is reached within sixty (60) days after Seller Real Property from the applicable Closing by providing Seller with written notice has notified Buyer of such exclusion within five days of such Buyer’s receipt of written notice from casualty or loss, then Buyer or Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price may terminate this Agreement pursuant to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinSection 7.12(e). In the event that such of damage or destruction which Seller elects to restore, Seller will have the right to postpone the Closing Date for up to four (4) months. Buyer does not timely elect will have the right to exclude the Carved-Out Assets inspect and Carved-Out Liabilities related to observe all repairs necessitated by any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller damage or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedsdestruction.

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time If any portion of the Measurement Date (Leasehold Improvements shall be taken, or proposed to be taken, by condemnation or purchase in lieu thereof, or shall be damaged by fire or other casualty, before Closing, Seller shall immediately advise Buyer thereof. Seller shall not agree to any settlement in any condemnation proceeding, or agree to any purchase in lieu thereof, without Buyer’s consent, which consent will not be unreasonably withheld or delayed. Unless the Buyer disputes the amount of any insurance proceeds, or Seller has failed to maintain the insurance coverage required by the Lease to insure against loss caused by fire or other casualty, the occurrence of any such condemnation or purchase in lieu thereof, or the Effective Time of Closing occurrence of any applicable Subsequent Closing for those Stores excluded from such fire or other casualty, shall not affect this Agreement, except that the Transition Date Closings), any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) total of any awards or (ii) if settlement proceeds, or the applicable Closing is total of any insurance proceeds, as appropriate, received by Seller at or prior to the Subsequent Closing. At Closing, the aggregate Store Purchase Price Seller shall assign to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price Buyer (without duplicationa) all rights of Seller in and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided herein. In the event that such Buyer does not timely elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to any awards or settlement proceeds, if any, which remain payable to Seller by reason of any such affected Store from taking or acquiring of the applicable ClosingLeasehold Improvements, and (b) all rights of Seller in and to any insurance proceeds and all rights or other proceeds which remain payable by reason of any such casualty loss to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such the Leasehold Improvements. If Buyer at disputes the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein insurance proceeds that result from any damage to the contraryLeasehold Improvements by fire or other casualty, before Closing, Seller may elect to postpone the Closing until such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and time as (a) the parties shall execute any amendments are able to this Agreement reasonably requested necessary to effect agree upon an amount that accurately represents the transfer of such proceeds. If, between reduction in the date hereof and the Effective Time value of the Measurement Date Leasehold Improvements or (b) Seller has repaired the Effective Time of Closing of damage and restored the Leasehold Improvements to the condition that existed immediately prior to such damage. If Seller for any applicable Subsequent reason fails to maintain the insurance coverage required by the Lease to insure against losses caused by fire or other casualty, and an uninsured fire or other casualty occurs prior to Closing, any casualty or damage is suffered with respect then Buyer may elect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds.either:

Casualty; Condemnation. (a) A. Seller assumes all risk of loss or damage to the Property by fire or other casualty until the deed of conveyance to the Property is delivered to Purchaser at Closing. If, between the date hereof and the Effective Time at any time prior thereto, any portion of the Measurement Date (Property is destroyed or the Effective Time damaged as a result of Closing of fire or any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)other cause whatsoever, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred, which casualty or damage would (i) with respect to an Owned Real Property, be reasonably expected to take more than one hundred eighty (180) days to complete any such restoration or repair or (ii) with respect to a Leased Real Property, shall promptly give rise to the landlord’s right of termination under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with written notice of such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualty, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price shall be reduced by the applicable Base Store Purchase Price (without duplication) or (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price thereof to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinPurchaser. In the event that (a) the total cost to repair or restore such Buyer destruction or damage, as determined by Seller’s insurance claim adjuster, exceeds $500,000.00, and/or (b) the estimated time to restore or repair such destruction or damage, as determined by Seller’s insurance claim adjuster, exceeds one hundred fifty (150) days from the casualty date, and/or (c) any of the tenants listed on Exhibit G would have the right to terminate its Lease as a result of such fire or casualty, Purchaser shall have the right to terminate this Agreement by written notice delivered to Seller within twenty (20) days following the date upon which Purchaser receives Seller’s written notice of the destruction or damage. If Purchaser does not timely elect have the right to exclude the Carved-Out Assets terminate this Agreement, or elects not to do so, this Agreement shall remain in full force and Carved-Out Liabilities related to any such affected Store from the applicable Closing, any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder effect and the parties shall execute proceed to Closing without any amendments to this Agreement reasonably requested necessary to effect reduction or adjustment in the transfer of such Purchase Price, except that all insurance proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of if any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, (and all rights to recover insurance proceeds of Seller as landlord under the Lease, and in respect thereof of policies of insurance maintained by Seller or Parent shall tenants) will be assigned to Purchaser, exclusive of amounts expended by Seller and reimbursable to Seller to stabilize or repair such Buyer at damage prior to Closing, and Seller shall pay to Purchaser or credit the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of Seller’s insurance deductible, self-insured retention and/or any deductible), and, notwithstanding anything herein to the contrary, such amount any Tenant’s insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedswhich Seller is entitled.

Casualty; Condemnation. (a) If, between the date hereof and the Effective Time prior to Closing, Seller has actual knowledge that all of the Measurement Date (Property or any material portion thereof is destroyed or damaged or if the Effective Time Property or any material portion thereof shall be subjected to a bona fide threat of Closing condemnation or becomes the subject of any applicable Subsequent Closing for those Stores excluded from the Transition Date Closings)proceedings, any casualty judicial, administrative or damage is suffered otherwise, with respect to the taking by eminent domain or condemnation, Seller shall notify Buyer thereof within a reasonable time after receipt by Seller of such actual notice thereof but in any Seller Real Property for which a Closing has not then occurredevent prior to Closing. In such event, which casualty or damage would Buyer shall have the option to be exercised in writing written 30 days after such notice to: (i) with respect terminate this Agreement upon written notice to an Owned Real PropertySeller, in which event the Deposit shall be reasonably expected returned to take more than one hundred eighty (180) days Buyer, and, thereafter this Agreement shall be deemed to complete any such restoration or repair be null, void and of no further force and effect; or (ii) with respect to a Leased Real Property, give rise accept title to the landlord’s right Property with no adjustment of termination the Purchase Price, and upon the Closing, Seller shall assign, transfer and set over to Buyer all of the right, title and interest of Seller in and to any awards that have been or that may thereafter be made for such taking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds that may have been or that may thereafter be made for such damage or destruction, giving Buyer a credit at Closing for any deductible under the applicable Lease (a “Major Casualty”), the applicable Buyer may elect to exclude the Carved-Out Assets and Carved-Out Liabilities related to the Store at that Seller Real Property from the applicable Closing by providing Seller with such policies. If written notice of is not given by Buyer within such exclusion within five days of such Buyer’s receipt of written notice from Seller of such Major Casualtytime, in which event (i) if the applicable Closing is a Transition Date Closing, the Base Purchase Price Buyer shall be reduced by the applicable Base Store Purchase Price (without duplication) or deemed to have elected (ii) if the applicable Closing is the Subsequent Closing, the aggregate Store Purchase Price to be paid at that Subsequent Closing shall be reduced by the applicable Store Purchase Price (without duplication) and neither party shall have any further obligation to the other hereunder with respect to the Carved-Out Assets and Carved-Out Liabilities related to that Store, except as may be expressly provided hereinabove. In the event that such an immaterial part of the Property is damaged, destroyed or taken, this Agreement shall remain in full force and effect with no adjustment of the Purchase Price, and upon the Closing, Seller shall assign, transfer and set over to Buyer does not timely elect to exclude all of the Carved-Out Assets right, title and Carved-Out Liabilities related interest of Seller in and to any awards that have been or that may thereafter be made for such affected Store from the applicable Closingtaking, and Seller shall assign, transfer and set over to Buyer any insurance proceeds and all rights to recover insurance proceeds in respect thereof by Seller that may have been or Parent shall that may thereafter be assigned to made for such damage or destruction, giving Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of at Closing for any deductible), and, notwithstanding anything herein to the contrary, deductible under such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceeds. If, between the date hereof and the Effective Time of the Measurement Date or the Effective Time of Closing of any applicable Subsequent Closing, any casualty or damage is suffered with respect to any Seller Real Property for which a Closing has not then occurred which is not a Major Casualty, then such Buyer shall have no right to exclude the Seller Real Property, and all rights to recover insurance proceeds in respect thereof by Seller or Parent shall be assigned to such Buyer at the applicable Closing (and such Buyer shall receive a credit against the Base Purchase Price or Store Purchase Price, as applicable, in the full amount of any deductible), and, notwithstanding anything herein to the contrary, such insurance proceeds and rights to recover insurance proceeds shall be Purchased Assets hereunder and the parties shall execute any amendments to this Agreement reasonably requested necessary to effect the transfer of such proceedspolicies.