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 AND, IN SUCH EVENT, SELLER SHALL ASSIGN TO PURCHASER
AND PURCHASER SHALL HAVE THE RIGHT TO MAKE A CLAIM FOR AND TO RETAIN ANY
INSURANCE PROCEEDS APPLICABLE TO THE PERIOD FROM AND AFTER THE CLOSING DATE AND
ANY CASUALTY INSURANCE PROCEEDS RECEIVED UNDER THE INSURANCE POLICIES IN EFFECT
WITH RESPECT TO THE PREMISES ON ACCOUNT OF SAID PHYSICAL DAMAGE OR DESTRUCTION
(TO BE APPLIED TO REPAIR AND RESTORATION AND TO THE EXTENT NOT PREVIOUSLY
EXPENDED ON REPAIR OR RESTORATION) AND AT CLOSING, PURCHASER SHALL RECEIVE A
CREDIT AGAINST THE PURCHASE PRICE FOR THE AMOUNT OF THE DEDUCTIBLE ON SUCH
CASUALTY INSURANCE POLICY (TO BE APPLIED TO REPAIR AND RESTORATION AND TO THE
EXTENT NOT PREVIOUSLY EXPENDED ON REPAIR OR RESTORATION).
19
(B)
THE ESTIMATED COST TO REPAIR AND/OR RESTORE AND THE ESTIMATED TIME
TO COMPLETE CONTEMPLATED IN SUBSECTION (A) ABOVE SHALL BE ESTABLISHED BY
REASONABLE ESTIMATES OBTAINED BY SELLER FROM INDEPENDENT CONTRACTORS, SUBJECT TO
THE PROVISIONS OF PARAGRAPH (C) BELOW.
(C)
THE PROVISIONS OF THIS SECTION 9 SUPERSEDE THE PROVISIONS OF
SECTION 5-1311 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
ANY
DISPUTES UNDER THIS SECTION 9 AS TO THE COST OF REPAIR OR RESTORATION OR THE
TIME FOR COMPLETION OF SUCH REPAIR OR RESTORATION SHALL BE RESOLVED BY EXPEDITED
ARBITRATION BEFORE A SINGLE ARBITRATOR ACCEPTABLE TO BOTH SELLER AND PURCHASER
IN THEIR REASONABLE JUDGMENT IN ACCORDANCE WITH THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION; PROVIDED THAT IF SELLER AND PURCHASER FAIL TO AGREE ON
AN ARBITRATOR WITHIN FIVE (5) DAYS AFTER A DISPUTE ARISES, THEN EITHER PARTY MAY
REQUEST THE REAL ESTATE BOARD OF NEW YORK, INC. TO DESIGNATE AN ARBITRATOR.
SUCH ARBITRATOR SHALL BE AN INDEPENDENT ARCHITECT OR ENGINEER HAVING AT LEAST
TEN (10) YEARS OF EXPERIENCE IN THE CONSTRUCTION OF OFFICE BUILDINGS IN
MANHATTAN.
THE DETERMINATION OF THE ARBITRATOR SHALL BE CONCLUSIVE AND BINDING
UPON THE PARTIES.
THE COSTS AND EXPENSES OF SUCH ARBITRATOR SHALL BE BORNE
EQUALLY BY SELLER AND PURCHASER.
10.
CONDEMNATION
(A)
IF, PRIOR TO THE CLOSING DATE, ANY PART OF THE PREMISES IS TAKEN
OR IF SELLER SHALL RECEIVE AN OFFICIAL NOTICE FROM ANY GOVERNMENTAL AUTHORITY
HAVING EMINENT DOMAIN POWER OVER THE PREMISES OF ITS INTENTION TO TAKE, BY
EMINENT DOMAIN PROCEEDING, ANY PART OF THE PREMISES (A "TAKING"), THEN:
(I)
IF SUCH TAKING IS TEMPORARY OR NOT MATERIAL (FOR PURPOSES OF THIS
SECTION 10 "MATERIAL" MEANS THAT THE CONDEMNATION AWARD WILL EXCEED $10,000,000)
AS REASONABLY DETERMINED BY AN INDEPENDENT ARCHITECT CHOSEN BY SELLER (SUBJECT
TO THE PROVISIONS OF PARAGRAPH (B) BELOW), AND DOES NOT MATERIALLY AND ADVERSELY
AFFECT ACCESS TO THE PREMISES, NEITHER PARTY SHALL HAVE ANY 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