SUCH PERSON, IF SUCH
PERSON IS A NATURAL PERSON.
FOR THE PURPOSES OF THIS DEFINITION, (I) "CONTROL"
(INCLUDING WITH CORRELATIVE MEANING, THE TERMS "CONTROLLING," "CONTROLLED BY"
AND "UNDER COMMON CONTROL"), AS APPLIED TO ANY PERSON, MEANS THE POSSESSION,
DIRECTLY OR INDIRECTLY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE
MANAGEMENT AND POLICIES OF THAT PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING
SECURITIES, BY CONTRACT OR OTHERWISE; AND FOR PURPOSES OF THIS AGREEMENT,
"PERSON" MEANS AND INCLUDES NATURAL PERSONS, CORPORATIONS, LIMITED PARTNERSHIPS,
GENERAL PARTNERSHIPS, JOINT STOCK COMPANIES, JOINT VENTURES, ASSOCIATIONS,
LIMITED LIABILITY COMPANIES, LIMITED LIABILITY PARTNERSHIPS, LIMITED LIABILITY
LIMITED PARTNERSHIPS, TRUSTS, LAND TRUSTS, BUSINESS TRUSTS OR OTHER
ORGANIZATIONS, WHETHER OR NOT LEGAL ENTITIES.
12.
DAMAGE AND DESTRUCTION.
(A)
IF ALL OR ANY PART OF THE BUILDING IS DAMAGED BY FIRE OR
OTHER CASUALTY OCCURRING FOLLOWING THE DATE OF THIS AGREEMENT AND PRIOR TO THE
CLOSING DATE, WHETHER OR NOT SUCH DAMAGE AFFECTS A MATERIAL PART OF THE
BUILDING, THEN NEITHER PARTY SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT
AND THE PARTIES SHALL NONETHELESS CONSUMMATE THIS TRANSACTION IN ACCORDANCE WITH
THIS AGREEMENT, WITHOUT ANY ABATEMENT OF THE PURCHASE PRICE OR ANY LIABILITY OR
OBLIGATION ON THE PART OF SELLER BY REASON OF SAID DESTRUCTION OR DAMAGE.
IN
SUCH EVENT, SELLER SHALL ASSIGN TO PURCHASER AND PURCHASER SHALL HAVE THE RIGHT
TO MAKE A CLAIM FOR AND TO RETAIN ANY CASUALTY INSURANCE PROCEEDS UNDER THE
CASUALTY INSURANCE POLICIES IN EFFECT WITH RESPECT TO THE PREMISES ON ACCOUNT OF
SAID PHYSICAL DAMAGE OR DESTRUCTION AND PURCHASER SHALL RECEIVE A CREDIT FROM
THE CASH DUE AT CLOSING FOR THE AMOUNT OF THE DEDUCTIBLE ON SUCH CASUALTY
INSURANCE POLICY.
(B)
THE PARTIES HEREBY WAIVE THE PROVISIONS OF ANY STATUTE WHICH
PROVIDES FOR A DIFFERENT OUTCOME OR TREATMENT IN THE EVENT OF A CASUALTY OR A
CONDEMNATION OR EMINENT DOMAIN
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proceeding, including, without limitation, Section 5-1311 of the General
Obligations Law of the State of New York.
13.
CONDEMNATION.
(A)
IF, PRIOR TO THE CLOSING DATE, ANY PART OF THE PREMISES OR
LOT 58 IS TAKEN (OTHER THAN A TEMPORARY TAKING), OR IF SELLER SHALL RECEIVE AN
OFFICIAL NOTICE FROM ANY GOVERNMENTAL AUTHORITY HAVING EMINENT DOMAIN POWER OVER
THE PREMISES OR LOT 58 OF ITS INTENTION TO TAKE, BY EMINENT DOMAIN PROCEEDING,
ANY PART OF THE PREMISES (A "TAKING"), THEN PURCHASER SHALL HAVE THE OPTION,
EXERCISABLE WITHIN TWENTY (20) BUSINESS DAYS AFTER RECEIPT OF NOTICE OF SUCH
TAKING, TIME BEING OF THE ESSENCE, TO TERMINATE THIS AGREEMENT BY DELIVERING
NOTICE THEREOF TO SELLER, WHEREUPON SELLER SHALL RETURN THE DEPOSIT (TO THE
EXTENT DEPOSITED WITH SELLER, TOGETHER WITH ANY INTEREST EARNED THEREON) TO
PURCHASER AND THIS AGREEMENT SHALL BE DEEMED CANCELED AND OF NO FURTHER FORCE OR
EFFECT, AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR LIABILITIES AGAINST
OR TO THE OTHER EXCEPT PURSUANT TO THE PROVISIONS OF THIS AGREEMENT WHICH ARE
EXPRESSLY PROVIDED TO SURVIVE THE TERMINATION OF THIS AGREEMENT.
IF A TAKING
SHALL OCCUR AND PURCHASER SHALL NOT