THE TITLE POLICY ALLOCABLE TO THE CLTA
"STANDARD COVERAGE" THEREUNDER, ANY PRE-PAYMENT PENALTIES ASSOCIATED WITH THE
PAYMENT OF ANY SELLER INDEBTEDNESS ENCUMBERING THE LAND OR THE
14
IMPROVEMENTS AS CONTEMPLATED UNDER SECTION 5 ABOVE, AND ONE-HALF OF THE COST OF
ANY ESCROWS HEREUNDER.
ANY AND ALL OTHER COSTS SHALL BE ALLOCATED IN ACCORDANCE
WITH LOCAL CUSTOM.
14.
DESTRUCTION, LOSS OR DIMINUTION OF PROJECT.
IF, PRIOR TO CLOSING,
ALL OR ANY PORTION OF THE LAND OR THE IMPROVEMENTS ARE DAMAGED BY FIRE OR OTHER
NATURAL CASUALTY (COLLECTIVELY "CASUALTY DAMAGE"), OR ARE TAKEN OR MADE SUBJECT
TO CONDEMNATION, EMINENT DOMAIN OR OTHER GOVERNMENTAL ACQUISITION PROCEEDINGS
(COLLECTIVELY "EMINENT DOMAIN"), THEN THE FOLLOWING PROCEDURES SHALL APPLY:
(a)
If the aggregate cost of repair or
replacement of the Casualty Damage (collectively, "repair and/or replacement")
is $1,000,000 or less, in the opinion of Buyer's and Seller's respective
engineering consultants, Buyer shall close and take the Property as diminished
by such events, subject to an assignment of Seller's casualty insurance proceeds
(plus the amount of any unpaid deductible) or an assignment of any condemnation
award, as applicable.
(b)
If the aggregate cost of repair and/or
replacement of the Casualty Damage is greater than $1,000,000, in the opinion of
Buyer's and Seller's respective engineering consultants, or in the event of an
Eminent Domain, then Buyer, at its sole option, may elect either to (i)
terminate this Agreement by written notice to Seller in which event the
provisions of Section 21.8 governing a permitted termination by Buyer shall
apply; or (ii) proceed to close subject to an assignment of the proceeds of
Seller's casualty insurance for all Casualty Damage plus the amount of any
unpaid deductible (or condemnation awards for any Eminent Domain).
In such
event, Seller shall fully cooperate with Buyer in the adjustment and settlement
of the insurance claim.
The proceeds and benefits under any rent loss or
business interruption policies attributable to the period following the Closing
shall likewise be transferred and paid over (and, if applicable, likewise
credited on an interim basis) to Buyer.
15.
DEFAULT.
15.1.
DEFAULT BY SELLER.
IN THE EVENT THAT THE SALE IS NOT CONSUMMATED AS
A RESULT OF THE FACT THAT ANY OF SELLER'S REPRESENTATIONS CONTAINED HEREIN ARE
NOT TRUE AND CORRECT ON THE EFFECTIVE DATE AND CONTINUING THEREAFTER THROUGH AND
INCLUDING THE CLOSING DATE, OR IF SELLER FAILS TO PERFORM ANY OF THE COVENANTS
AND AGREEMENTS CONTAINED HEREIN TO BE PERFORMED BY SELLER WITHIN THE TIME FOR
PERFORMANCE AS SPECIFIED HEREIN (INCLUDING SELLER'S OBLIGATION TO CLOSE), BUYER
MAY ELECT EITHER TO (I) TERMINATE BUYER'S OBLIGATIONS UNDER THIS AGREEMENT BY
WRITTEN NOTICE TO SELLER WITH A COPY TO ESCROW HOLDER, IN WHICH EVENT THE
DEPOSIT SHALL BE RETURNED IMMEDIATELY TO BUYER; OR (II) FILE AN ACTION FOR
SPECIFIC PERFORMANCE.
SELLER AGREES THAT IN THE EVENT BUYER ELECTS (II) ABOVE,
BUYER SHALL NOT BE REQUIRED TO POST A BOND OR ANY OTHER COLLATERAL WITH THE
COURT OR ANY OTHER PARTY AS A CONDITION TO BUYER'S PURSUIT OF AN ACTION.
SELLER