ARE APPLICABLE, THE INSURANCE
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PROCEEDS SHALL BE RETAINED BY THE PARTY ENTITLED THERETO PURSUANT TO SECTION
10.2.1.
10.2
DAMAGE OR DESTRUCTION.
10.2.1
DAMAGE OR DESTRUCTION OF LEASED PROPERTY.
IF, DURING THE TERM, ANY
PROPERTY SHALL BE TOTALLY OR PARTIALLY DESTROYED AND THE TRAVEL CENTER LOCATED
THEREON IS THEREBY RENDERED UNSUITABLE FOR ITS PERMITTED USE, EITHER LANDLORD OR
TENANT MAY, BY THE GIVING OF NOTICE THEREOF TO THE OTHER, TERMINATE THIS
AGREEMENT WITH RESPECT TO SUCH AFFECTED PROPERTY, WHEREUPON, THIS AGREEMENT
SHALL TERMINATE WITH RESPECT TO SUCH AFFECTED PROPERTY, LANDLORD SHALL BE
ENTITLED TO RETAIN THE INSURANCE PROCEEDS PAYABLE ON ACCOUNT OF SUCH DAMAGE,
TENANT SHALL PAY TO LANDLORD THE AMOUNT OF ANY DEDUCTIBLE UNDER THE INSURANCE
POLICIES COVERING SUCH TRAVEL CENTER, THE AMOUNT OF ANY UNINSURED LOSS AND ANY
DIFFERENCE BETWEEN THE REPLACEMENT COST OF THE AFFECTED PROPERTY AND THE
CASUALTY INSURANCE PROCEEDS THEREFOR, AND THE MINIMUM RENT SHALL BE REDUCED BY
THE SUM OF EIGHT AND ONE-HALF PERCENT (8.5%) OF THE TOTAL AMOUNT RECEIVED BY
LANDLORD PLUS THE FAIR MARKET VALUE OF THE LAND, SUCH FAIR MARKET VALUE TO BE
DETERMINED BY AGREEMENT OF THE PARTIES OR, ABSENT AGREEMENT, AN APPRAISER
DESIGNATED BY LANDLORD.
10.2.2
PARTIAL DAMAGE OR DESTRUCTION.
IF, DURING THE TERM, ANY PROPERTY SHALL
BE TOTALLY OR PARTIALLY DESTROYED BUT THE TRAVEL CENTER LOCATED THEREON IS NOT
RENDERED UNSUITABLE FOR ITS PERMITTED USE, TENANT SHALL, SUBJECT TO SECTION
10.2.3, PROMPTLY RESTORE SUCH TRAVEL CENTER AS PROVIDED IN SECTION 10.2.4.
10.2.3
INSUFFICIENT INSURANCE PROCEEDS.
IF THE COST OF THE REPAIR OR
RESTORATION OF THE APPLICABLE TRAVEL CENTER EXCEEDS THE AMOUNT OF INSURANCE
PROCEEDS RECEIVED BY LANDLORD AND TENANT PURSUANT TO SECTION 9.1, TENANT SHALL
GIVE LANDLORD NOTICE THEREOF WHICH NOTICE SHALL SET FORTH IN REASONABLE DETAIL
THE NATURE OF SUCH DEFICIENCY AND WHETHER TENANT SHALL PAY AND ASSUME THE AMOUNT
OF SUCH DEFICIENCY (TENANT HAVING NO OBLIGATION TO DO SO, EXCEPT THAT, IF TENANT
SHALL ELECT TO MAKE SUCH FUNDS AVAILABLE, THE SAME SHALL BECOME AN IRREVOCABLE
OBLIGATION OF TENANT PURSUANT TO THIS AGREEMENT).
IN THE EVENT TENANT SHALL
ELECT NOT TO PAY AND ASSUME THE AMOUNT OF SUCH DEFICIENCY, LANDLORD SHALL HAVE
THE RIGHT (BUT NOT THE OBLIGATION), EXERCISABLE IN LANDLORD'S SOLE DISCRETION BY
NOTICE TO TENANT, GIVEN WITHIN SIXTY (60) DAYS AFTER TENANT'S NOTICE OF THE
DEFICIENCY, TO ELECT TO MAKE AVAILABLE FOR APPLICATION TO
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THE COST OF REPAIR OR RESTORATION THE AMOUNT OF SUCH DEFICIENCY; PROVIDED,
HOWEVER, IN SUCH EVENT, UPON ANY DISBURSEMENT BY LANDLORD THEREOF, THE MINIMUM
RENT SHALL BE ADJUSTED AS PROVIDED IN SECTION 3.1.1(B).
IN THE EVENT THAT
NEITHER LANDLORD NOR TENANT SHALL ELECT TO MAKE SUCH DEFICIENCY AVAILABLE FOR
RESTORATION, EITHER LANDLORD OR TENANT MAY TERMINATE THIS AGREEMENT WITH RESPECT
TO THE AFFECTED PROPERTY BY NOTICE TO THE OTHER, WHEREUPON, THIS AGREEMENT SHALL
SO TERMINATE AND INSURANCE PROCEEDS SHALL BE DISTRIBUTED AS PROVIDED IN SECTION
10.2.1.
IT IS EXPRESSLY UNDERSTOOD AND AGREED, HOWEVER, THAT, NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TENANT SHALL BE STRICTLY LIABLE