Common use of Damage Before Closing Clause in Contracts

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of any and all loss or damage to the Property in excess of $50,000 forthwith following the occurrence thereof. If loss or damage to the Property occurs, then: (a) if the cost of repair or restoration, in the opinion of the Vendor’s architect or engineer, will exceed an amount equal to 35% of the Purchase Price (such damage being referred to herein as “Substantial Damage”), then the Vendor or the Purchaser may by notice to the other party within ten (10) Business Days after the occurrence of such Substantial Damage, elect to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement) and the Deposit and all interest earned thereon shall be returned to the Purchaser forthwith without deduction; and (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but neither party has elected to exercise the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall pay any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall be paid to the Vendor), the parties shall complete the Transaction and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafter.

Damage Before Closing. (a) The interest of Seller shall promptly give the Vendor in Partnership and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing MHI Inc. written notice of any and all loss or damage to the Property in excess of $50,000 forthwith following 250,000 to a Facility or $1,000,000 to the occurrence thereof. Facilities, in the aggregate, describing such damage, stating whether and to what extent such damage and loss of rents is covered by insurance, any applicable deductibles, retentions or self-insurance amounts, and the estimated cost and timing of repairing such damage and any injuries to persons or damage to other Person’s property, attaching a copy of the relevant insurance policy to such notice. (b) If loss or damage to a Facility occurs at any time after the Property occursdate hereof and before Closing, then: (ai) if the cost of repair or restoration, in the opinion of the Vendor’s architect or engineer, will exceed restoration exceeds an amount equal to 3510% of the Purchase Price value allocated to such Facility in Schedule 6.16(b) (such damage being referred to herein as “Substantial Material Damage” and such Facility so affected being referred to as “Materially Damaged Facility”), then then, following a thirty (30) Business Day period during which the Vendor or Seller shall have the Purchaser opportunity to repair such Material Damage to a condition that such Facility is no longer considered a Materially Damaged Facility, the Partnership, at its sole option, may by notice to the other party Seller within ten (10) Business Days after the occurrence receipt of the Seller’s notification in respect of such Substantial Damagedamage, either: (a) elect to terminate this Agreement in which respect of such Materially Damaged Facility and in such event this Agreement the Seller shall automatically terminatetake such steps as are necessary to cause the Purchased Entity (or, be null and void and of no further force and effect whatsoeverif applicable, the Purchaser and Vendor Indirect Purchased Entity) to transfer the Facility to the Seller or its Affiliates (other than the Purchased Entity or its Subsidiaries) or otherwise dispose of the Facility prior to Closing and, accordingly, the Purchase Price shall be released from all obligations under this Agreement (except those reduced by that portion of the Purchase Price allocated to said Materially Damaged Facility, which are expressly stated to survive any termination of this Agreement) and the Deposit and all interest earned thereon shall be returned to the Purchaser forthwith without deductionallocation is set forth on Schedule 6.16(b); andor (b) elect to complete the Transaction, including with respect to said Materially Damaged Facility, and (i) all proceeds of insurance relating to said Material Damage pursuant to the insurance policies of the Purchased Entity (or applicable Indirect Purchased Entity) shall be paid to the Partnership, upon receipt and (ii) the Seller and the Partnership shall complete this Transaction in accordance with its terms and the Partnership shall receive a credit to the Purchase Price for any unpaid deductible amount pursuant to said policies of insurance at Closing. (c) If the Partnership does not provide the Seller with notice of its election prior to the expiry of said ten (10) Business Day period, then the Partnership shall be deemed to have elected to complete the Transaction in accordance with Section 6.16(b)(i)(b). (ii) if such loss or damage is does not Substantial represent Material Damage, or is Substantial Damage but neither then no party has elected to exercise the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party hereto shall have any right to terminate this Agreement by virtue thereof, and the Vendor Seller shall pay (i) repair any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required and return the Facility to reimburse substantially the Vendor for repair or restoration work same condition as it has done was prior to Closing and insurance for loss of income such damage at its expense prior to Closing, the Closing or (ii) elect to pay all proceeds of which shall be paid insurance relating to the Vendor), damage pursuant to the insurance policies of the Purchased Entity or applicable Indirect Purchased Entity to the Partnership and provide Partnership a credit to the Purchase Price at Closing in the amount of any applicable deductible that has not been expanded by the Seller and the parties shall complete the Transaction and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(fTransaction. (iii) above. If if the damage or destruction occurs at such time that there is insufficient time for the Vendor Seller or the Purchaser Partnership to make its election hereunder, the Closing Date shall be postponed to a date which is five ten (510) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafter. (c) Nothing in this Section 6.16 shall be construed in any way as limiting the rights of the Partnership and MHI to terminate this Agreement pursuant to Article 8 as a result of Material Damage.

Damage Before Closing. The interest of the Vendor in and to the Property Hotel Assets shall be at the risk of the Vendor Seller until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of any and all loss or damage to the Property in excess of $50,000 forthwith following the occurrence thereofClosing Date. If loss or damage to the Property occursHotel Assets occurs at any time prior to Closing, then: (a) if such loss or damage is of such a nature and to such an extent that the cost of repair or restoration, in the opinion of the VendorSeller’s independent architect or engineer, will exceed an amount in aggregate equal to 35% of the Purchase Price FIVE MILLION DOLLARS (such damage being referred to herein as $5,000,000) (“Substantial Damage”), then the Vendor or the Purchaser may by notice to the other party Seller within ten (10) seven Business Days after it receives written notice of the occurrence of such Substantial Damage, elect to terminate this Agreement Agreement, in which event this Agreement shall automatically terminatecase, be null and void and of no further force and effect whatsoever, the Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement) and the Deposit and all any accrued interest earned thereon shall be returned paid to the Purchaser forthwith without deductionPurchaser; and (b) if such loss or damage is does not constitute Substantial Damage, or is does constitute Substantial Damage but neither party the Purchaser has elected not to exercise the termination its right with respect to the Agreement, pursuant to Subsection 7.2(a)of termination, then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall pay any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required insofar as such proceeds relate to reimburse lost income on or before the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of Date which shall be paid to entirely the Vendorproperty of the Seller), and the parties shall complete the Transaction Transaction, provided that the Purchase Price shall be reduced by an amount equal to the deductible under the applicable property insurance, if the Seller has not already paid the deductible, and uninsured losses, if any. The Seller has delivered to the Purchaser a certificate or certificates of insurance setting out the property coverage for the Hotel Assets, which shall promptly and diligently repair such damage at its own expense following Closingbe for full replacement cost, subject to deductibles. The Vendor Seller covenants and agrees thatwith the Purchaser that the Seller will, during the entire period of time from and including the Execution Date to and including the Closing Date, maintain such Existing Insurance over the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) aboveHotel Assets. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier last day of the date such election is made or the period for making such election has expiredthe Purchaser’s election, or if such date is not a Business Day, then the next Business Day thereafter.

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of any and all loss or damage to the Property in excess of $50,000 forthwith following the occurrence thereof. If loss or damage to the Property occurs, then: (a) if the cost of repair or restoration, in the opinion of the Vendor’s 's architect or engineer, will exceed an amount equal to 3550% of the Purchase Price (such damage being referred to herein as “"Substantial Damage”"), then the Vendor or the Purchaser may by notice to the other party within ten (10) Business Days after the occurrence of such Substantial Damage, elect to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement) and the Deposit and all interest earned thereon shall be returned to the Purchaser forthwith without deductionPurchaser; and (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but neither party has elected to exercise the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall pay any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall be paid to the Vendor), the parties shall complete the Transaction and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafter.

Damage Before Closing. The interest of the Vendor in and to the Property Industrial Building being purchased, acquired and assumed by the Purchaser pursuant to the terms and conditions of this Agreement shall be at the risk of the Vendor until Closing, subject to . In the terms and conditions event that any loss of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of any and all loss or damage to the Property in excess of $50,000 forthwith following the occurrence thereof. If loss Industrial Building resulting from insured perils or damage to the Property occurs, then: (a) if risks the cost of repair or restoration, in the opinion replacement of which would exceed $150,000.00 (such loss or damage and repair or replacement cost to be determined by the Vendor’s architect 's arm's length, independent architect, engineer or engineerother qualified expert retained for the purpose), will exceed an amount equal occurs before Closing which the Vendor has not covenanted to 35% repair by the Closing Date or to adjust for, or in respect of which the Purchase Price (Purchaser is not prepared to accept such damage being referred Vendor's covenant to herein as “Substantial Damage”)repair or adjust, then the Vendor or Purchaser, within five (5) days after disclosure to the Purchaser may by notice the Vendor of the loss or damage and the extent thereof and the Vendor's concurrent Notice that it does or does not intend to repair or adjust, at its option shall by Notice to the other party within ten Vendor either: (10i) Business Days after the occurrence of such Substantial Damage, elect to terminate this Agreement complete the purchase of the Property in which event the Purchaser shall be entitled to the proceeds of insurance in respect of the loss or damage and the Vendor shall pay any deductibles in respect of such loss or damage, or (ii) elect not to complete the purchase of the Property in which case this Agreement shall automatically terminate, be null and void terminated and of no further force and effect whatsoeverand the Purchaser shall be entitled to the return of the Deposit forthwith. In the event of loss or damage to the Industrial Building resulting from insured perils or risks the cost of repair or replacement of which is less than or equal to $150,000.00 and provided that proceeds of insurance are available (prior to or after Closing) to pay for the full cost (less reasonable deductibles) of repairing or replacing such loss or damage, the Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement) and the Deposit and all interest earned thereon shall be returned to the Purchaser forthwith without deduction; and (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but neither party has elected to exercise the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any no right to terminate this Agreement by virtue thereofAgreement, the Vendor shall pay any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to an assignment of all proceeds of property insurance in respect of such loss or damage (except that portiondamage, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall be paid to the Vendor), the parties shall complete the Transaction within transaction with respect to the Property. Any damage to the Commercial Building, regardless of the cost required to repair or replace shall not entitle the Purchaser to terminate, but the Purchaser shall receive credit for any deductible in respect thereof and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period be entitled to an assignment of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to proceeds in connection therewith if the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafter.completes this transaction..

Damage Before Closing. (a) The interest of Mohawk Parties shall promptly give the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing Invesque Parties written notice of any and all loss or damage to the Property in excess of $50,000 forthwith following 25,000 to a Property or $125,000 to the occurrence thereof. Properties, in the aggregate, describing such damage, stating whether and to what extent such damage and loss of rents is covered by insurance, any applicable deductibles, retentions or self-insurance amounts, and the estimated cost and timing of repairing such damage and any injuries to persons or damage to other Person’s property, attaching a copy of the relevant insurance policy to such notice. (b) If damage to a Property occurs at any time after the date hereof and before Closing, then: (i) the Mohawk Parties shall use their commercially reasonable efforts to repair any such loss or damage and return the Property to substantially the same condition as it was prior to such damage prior to the Closing; and (ii) there shall be a downward adjustment to the Estimated Purchase Price for any costs or expenses incurred in connection with the repair or restoration of the damaged Property occursthat are not otherwise insured under the insurance policies of the REIT or its Subsidiaries (including, then:for greater certainty, any uninsured costs or expenses incurred by the Invesque Parties or by the REIT or its Subsidiaries following the Effective Time), including an adjustment for any deductible amount under the insurance policies of the REIT or its Subsidiaries. (ac) if Nothing in this 6.15 shall be construed in any way as limiting the cost of repair or restoration, in the opinion rights of the Vendor’s architect or engineer, will exceed an amount equal to 35% of the Purchase Price (such damage being referred to herein as “Substantial Damage”), then the Vendor or the Purchaser may by notice to the other party within ten (10) Business Days after the occurrence of such Substantial Damage, elect Invesque Parties to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement) and the Deposit and all interest earned thereon shall be returned to the Purchaser forthwith without deduction; and (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but neither party has elected to exercise the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall pay any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall be paid to the Vendor), the parties shall complete the Transaction and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafterArticle 9.

Damage Before Closing. The interest of the Vendor in and to the Property shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of any and all loss or damage to the Property in excess of $50,000 forthwith following the occurrence thereof. If loss or damage to the Property occurs, then: (a) if the cost of repair or restoration, in the opinion of the Vendor’s architect or engineer, will exceed an amount equal to 35% of the Purchase Price (such damage being referred to herein as “Substantial Damage”), then the Vendor or the Purchaser may by notice to the other party within ten (10) Business Days after the occurrence of such Substantial Damage, elect to terminate this Agreement in which event this Agreement shall automatically terminate, be null and void and of no further force and effect whatsoever, the Purchaser and Vendor shall be released from all obligations under this Agreement (except those which are expressly stated to survive any termination of this Agreement) and the Deposit and all interest earned thereon shall be returned to the Purchaser forthwith without deduction; and (b) if such loss or damage is not Substantial Damage, or is Substantial Damage but neither party has elected to exercise the termination right with respect to the Agreement, pursuant to Subsection 7.2(a), then neither party shall have any right to terminate this Agreement by virtue thereof, the Vendor shall pay any insurance deductibles in respect of such loss or damage, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required to reimburse the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall be paid to the Vendor), the parties shall complete the Transaction and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafter.

Damage Before Closing. (a) The interest interests of the Vendor in and to the Property being purchased, acquired and assumed by the Purchaser pursuant to the terms and conditions of this Agreement shall be at the risk of the Vendor until Closing, subject to the terms and conditions of this Agreement. The Vendor covenants and agrees to notify the Purchaser in writing of If any and all loss or damage occurs before Closing to the Property Building, in excess of $50,000 forthwith following the occurrence thereof. If loss or damage to the Property occurs, then: ten percent (a10%) if the cost of repair or restoration, in the opinion of the Vendor’s architect or engineer, will exceed an amount equal to 35% of the Purchase Price (such loss or damage being referred and replacement cost to herein as “Substantial Damage”be determined by the Purchaser’s arm’s length, independent architect, engineer or other qualified expert, acting reasonably), then the Vendor or the Purchaser may by notice to the other party Purchaser, within ten five (105) Business Days after disclosure to the occurrence Purchaser by the Vendor of such Substantial Damagethe loss or damage and the extent thereof, shall by Notice to the Vendor elect either (i) to terminate this Agreement complete the purchase of the Property, in which event the Purchaser shall be entitled to the proceeds of insurance, if any, in respect of the loss or damage and the Vendor shall pay any deductibles in respect of such loss or damage, or (ii) not to complete the purchase of the Property, in which case this Agreement shall automatically terminatebe terminated, be null and void and of no further force and or effect whatsoever, each of the Vendor and the Purchaser and Vendor shall be released from all of its liabilities and obligations under this Agreement (except other than those liabilities and obligations which are expressly stated to survive any the termination of this Agreement) ), and the Deposit and all accrued interest earned thereon shall shall, subject to Section 4.2(b), be returned to the Purchaser forthwith without deduction; andPurchaser. (b) if such If other loss or damage is not Substantial Damage, or is Substantial Damage but neither party has elected to exercise the termination right with respect to the AgreementBuilding occurs, pursuant to Subsection 7.2(a), then neither party the Purchaser shall have any no right to elect to terminate this Agreement by virtue thereof, the Vendor shall pay any insurance deductibles in respect of such loss or damageAgreement, the Purchaser shall be entitled to all proceeds of property insurance in respect of such loss or damage (except that portion, if any, required to reimburse plus the reimbursement by the Vendor for repair or restoration work it has done prior to Closing and insurance for loss of income prior to Closing, all of which shall be paid to the Vendorany deductibles), and the parties Parties shall complete the Transaction and the Purchaser shall promptly and diligently repair such damage at its own expense following Closing. The Vendor covenants and agrees that, during the entire period of time from and including the Execution Date to and including the Closing Date, the Vendor shall maintain the same or substantially similar insurance as disclosed to the Purchaser pursuant to Section 2.2(f) above. If the damage or destruction occurs at such time that there is insufficient time for the Vendor or the Purchaser to make its election hereunder, the Closing Date shall be postponed to a date which is five (5) Business Days after the earlier of the date such election is made or the period for making such election has expired, or if such date is not a Business Day, then the next Business Day thereafterwithin Transaction.