Casualty and Restoration. (a) If the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other casualty (collectively, “Casualty”) in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant shall give prompt notice thereof to Landlord, then Landlord shall (or to the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) (i) the date which is 90 days after such repairs which are required to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) and (ii) the date on which Tenant shall move into such portion of the Premises for the conduct of its business, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Lease. (b) At the earliest practical time (as determined by Landlord acting reasonably) prior to the substantial completion of any such repair, Landlord shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business): (i) Tenant shall not commence work in any portion of the Premises until the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performed; (ii) Such access by Tenant shall be deemed to be subject to all of the applicable provisions of this Lease, except that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Date; and (iii) It is expressly understood that if Landlord shall be prevented from substantially completing the repairs due to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason of the performance of any Alteration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay shall be paid by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of same.
Appears in 2 contracts
Samples: Office Lease Agreement (Pubmatic, Inc.), Office Lease Agreement (Pubmatic, Inc.)
Casualty and Restoration. (a) If the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other casualty (collectively, “Casualty”) in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant Borrowers shall give prompt written notice thereof to LandlordLender of any damage to or destruction of all or any portion of any Individual Property (any such event being herein referred to as a "Casualty"). Provided that Lender shall make Insurance proceeds available pursuant to Section 7.2.2(b), then Landlord Borrowers shall (or promptly and diligently restore, replace, rebuild and repair such Individual Property as nearly as possible to the extent required under the Condominium Documentsvalue and condition of such Individual Property immediately prior to such Casualty (such restoration, cause the Board of Managers to) diligently replacement, rebuilding and repair the damage to the Building and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (is herein referred to as the “"Restoration"), regardless of whether Insurance Proceeds shall be payable with respect to such Casualty Rent Commencement Date”or shall be sufficient to pay for the Restoration. The plans and specifications and Permits for the Restoration shall be submitted to Lender in advance and shall be reasonably satisfactory to Lender in all respects. The Restoration shall be done in compliance with all Legal Requirements, and the applicable Borrower shall carry builder's risk insurance satisfactory to Lender in connection with the Restoration. Lender, its agents and representatives shall have the right to inspect the Individual Property to monitor the Restoration. All reasonable costs and expenses incurred by Lender, its agents or representatives in connection with the Restoration, including, without limitation, counsel fees and engineers fees incurred by Lender in connection with the review of plans, specifications and Permits and the monitoring of the Restoration, shall be paid by Borrowers. Upon completion of the Restoration, the applicable Borrower shall deliver to Lender an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (iA) all materials installed and work and labor performed in connection with the Restoration have been paid for in full, (B) no mechanics' or other Liens on the applicable Individual Property arising out of the Restoration exist which have not been bonded or otherwise discharged of record, (C) the date which is 90 days after such repairs which are required Restoration has been completed in compliance with the plans and specifications submitted to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) Lender and all Legal Requirements and (iiD) the date on which Tenant shall move into such portion all Permits required for use of the Premises for Individual Property after the conduct of its businessRestoration have been obtained, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage together with such other evidence of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leaseforegoing as Lender may request.
(b) At the earliest practical time (as determined by Landlord acting reasonably) prior Lender may elect to the substantial completion make all or any portion of any Insurance Proceeds received by Lender pursuant to Section 2.7.8(a) (after deducting out Lender's cost of obtaining such repairInsurance Proceeds, Landlord including, without limitation, reasonable attorneys' fees) available to pay the costs of the Restoration, provided that Lender shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access make such Insurance Proceeds (after deducting Lender's cost as aforesaid) available to pay the Premises to perform Alterations on costs of the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
Restoration if (i) Tenant shall not commence work in any portion of the Premises until the date specified in a notice from Landlord such Insurance Proceeds are paid to Tenant stating that the repairs required Lender prior to be made by Landlord have been or will be completed to the extent reasonably necessaryFebruary 1, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with2007, and consistent with the performance of, the repairs remaining to be performed;
(ii) Such access by Tenant (A) the Insurance Proceeds received with respect to any Casualty (after deducting out such costs) shall not exceed fifty percent (50%) of the fair market value for the Individual Property in question as set forth on Schedule M annexed hereto or (B) such Insurance Proceeds (after deducting out such costs) shall equal or exceed fifty percent (50%) of such fair market value for such Individual Property and the ratio of (x) the Cash Flow Available for Debt Service for such Individual Property for the twelve (12) month period ending with the last day of the last full month prior to such Casualty for which Lender shall have received financial reports for such Individual Property pursuant to Section 5.1(k) (iv) to (y) the aggregate amount of payments of principal and interest that would be payable over the twelve (12) months following the date of such Casualty in order to amortize the current Allocable Principal Balance for such Individual Property, with interest at the Interest Rate, over the period from the date of such Casualty to the Maturity Date shall be deemed at least equal to be subject 1.53/1.0, unless, in such case, Borrowers shall elect not to all of perform the applicable provisions of this Lease, except Restoration (provided that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion Individual Property identified as the Hilton Head Holiday Inn located on Hilton Head Island, South Carolina, Lender may elect to apply such Insurance Proceeds as a prepayment of the Premises for principal balance of the Loan in accordance with Section 2.7.8 unless Borrowers shall demonstrate to Lender's reasonable satisfaction that Borrowers have obtained any period zoning variations or permits required to reconstruct such Individual Property to substantially its configuration prior to the Casualty Rent Commencement Date; and
such Casualty), and (iii) It is expressly understood that if Landlord no Default or Event of Default shall have occurred and be continuing and (iv) Borrowers shall have deposited with Lender an amount equal to the difference between the cost of the Restoration, as reasonably estimated by Lender, and the amount of Insurance Proceeds to be made available by Lender to pay such costs. If such Insurance Proceeds are less than $100,000, Lender shall pay such Insurance Proceeds over to the Borrower in question upon receipt of an Officer's Certificate stating the costs of such Restoration to which such Insurance Proceeds shall be prevented from substantially completing applied. If the repairs due Insurance Proceeds equal or exceed $100,000 and are to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason be made available to pay the costs of the performance of any AlterationRestoration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay Insurance Proceeds shall be paid by Tenant Lender to, or as directed by, the applicable Borrower, less retainage customary in the area where such Individual Property is located, from time to Landlord as Additional Rent within 10 days after demand therefor. Subject time during the course of the Restoration (but not more frequently than once per calendar month), upon (x) receipt of a written request for such disbursement by the applicable Borrower accompanied by an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (l) all materials installed and work and labor performed to date (except to the extent they are to be paid for out of the requested payment) in connection with the Restoration have been paid for in full, and (2) no mechanics' or other Liens on the applicable Individual Property arising out of the Restoration exist which have not been bonded or otherwise discharged or released, together with such other evidence of the foregoing provisionsas Lender may request and (y) compliance with such other reasonable conditions as Lender may from time to time impose.
(c) Any amount of Insurance Proceeds which Lender does not elect, Landlord and Tenant or is not required, to make available to pay the costs of the Restoration, or which remains after payment of the costs of any restoration or reconstruction, shall cooperate be applied as provided in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of same.Section 2.7.8(a)
Appears in 1 contract
Samples: Loan Agreement (Lodgian Inc)
Casualty and Restoration. Section 5.01. If during the Term all or any part of the Demised Premises shall be damaged or destroyed by fire or other casualty, Tenant shall promptly give notice thereof to Landlord.
(a) If during the Term all or any part of the Demised Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged or destroyed by any fire or other casualty, this Lease shall continue in full force and effect. Subject in all respects to the terms of the documents evidencing and/or securing a first mortgage loan secured by the Demised Premises, any insurance proceeds received by Landlord on account of such damage or destruction, less the actual cost, fees and expenses, if any, incurred in connection with adjustment of the loss, shall, provided no default by Tenant or Event of Default shall have occurred and be continuing hereunder, be used by Landlord to cause the repair, restoration or replacement of any portion of the Demised Premises so damaged or destroyed as nearly as possible to its value, condition and character immediately prior to such damage or destruction and to pay contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for said repairs, restorations or replacements (hereinafter collectively, the “Casualty Restoration”), and shall be paid out from time to time as the Casualty Restoration progresses upon the written request of Tenant.
(b) If the insurance proceeds received by Landlord are applied to the cost of the Casualty Restoration and the insurance proceeds shall, at any time, be insufficient to pay the cost of the Casualty Restoration, Landlord shall use the Reserve Accounts (as hereinafter defined in Article 7) to make up the deficiency, subject to any required approvals of the first lienholder of the Property. In the event the Reserve Accounts are insufficient to make up the deficiency, Landlord shall be required to make up any remaining deficiency. If such net insurance proceeds shall exceed the cost of the Casualty Restoration, then, in such event, Landlord, shall retain the excess.
Section 5.03. If Landlord fails to diligently pursue to completion the Casualty Restoration of any portion of the Demised Premises damaged or destroyed by fire or other casualty (collectivelyas provided in Section 5.02(a) above, “Casualty”) then, in such a manner that materially interferes with Tenantevent, Tenant shall have the right to perform such Casualty Restoration on behalf of Landlord and at Landlord’s use expense. Subject to any required approval of the first lienholder of the Property, Tenant shall have the right to use the Reserve Accounts in connection with any such Casualty Restoration performed by Tenant on behalf of Landlord.
Section 5.04. Landlord shall have the right to satisfy its obligations under this Article 5 by requiring the property manager of the Demised Premises for general office use or reasonable access to perform the Casualty Restoration.
Section 5.05. Notwithstanding the foregoing provisions of this Article 5, but subject to the Premises andterms and conditions of the Loan Documents, in the case event all or a material portion of the PremisesDemised Premises is damaged or destroyed by fire or other casualty, if Tenant shall give prompt notice thereof to Landlord, then Landlord shall (or to the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) following which (i) Landlord’s lender elects not to make the date which is 90 days after such repairs which are required insurance proceeds available to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) for restoration, and (ii) Landlord then elects not to reconstruct the date on which Tenant Demised Premises, then this Lease automatically shall move into such portion of the Premises for the conduct of its business, the Base Rent terminate and Additional Rent neither party shall be reduced by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which have any further obligations hereunder.
Section 5.05. This Article 5 is materially affected bears subject to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Lease.
(b) At the earliest practical time (as determined by Landlord acting reasonably) prior to the substantial completion of any such repair, Landlord shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
(i) Tenant shall not commence work in any portion of the Premises until the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performed;
(ii) Such access by Tenant shall be deemed to be subject to all of the applicable provisions of this Lease, except that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Date; and
(iii) It is expressly understood that if Landlord shall be prevented from substantially completing the repairs due to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason of the performance of any Alteration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay shall be paid by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of sameLoan Documents.
Appears in 1 contract
Samples: Master Lease (Versity Invest, LLC)
Casualty and Restoration. (a) If the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other casualty (collectively, “Casualty”) in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant Borrowers shall give prompt written notice thereof to LandlordLender of any damage to or destruction of all or any portion of any Individual Property (any such event being herein referred to as a "Casualty"). Provided that Lender shall make Insurance proceeds available pursuant to Section 7.2.2(b), then Landlord Borrowers shall (or promptly and diligently restore, replace, rebuild and repair such Individual Property as nearly as possible to the extent required under the Condominium Documentsvalue and condition of such Individual Property immediately prior to such Casualty (such restoration, cause the Board of Managers to) diligently replacement, rebuilding and repair the damage to the Building and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (is herein referred to as the “"Restoration"), regardless of whether Insurance Proceeds shall be payable with respect to such Casualty Rent Commencement Date”or shall be sufficient to pay for the Restoration. The plans and specifications and Permits for the Restoration shall be submitted to Lender in advance and shall be reasonably satisfactory to Lender in all respects. The Restoration shall be done in compliance with all Legal Requirements, and the applicable Borrower shall carry builder's risk insurance satisfactory to Lender in connection with the Restoration. Lender, its agents and representatives shall have the right to inspect the Individual Property to monitor the Restoration. All reasonable costs and expenses incurred by Lender, its agents or representatives in connection with the Restoration, including, without limitation, counsel fees and engineers fees incurred by Lender in connection with the review of plans, specifications and Permits and the monitoring of the Restoration, shall be paid by Borrowers. Upon completion of the Restoration, the applicable Borrower shall deliver to Lender an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (iA) all materials installed and work and labor performed in connection with the Restoration have been paid for in full, (B) no mechanics' or other Liens on the applicable Individual Property arising out of the Restoration exist which have not been bonded or otherwise discharged of record, (C) the date which is 90 days after such repairs which are required Restoration has been completed in compliance with the plans and specifications submitted to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) Lender and all Legal Requirements and (iiD) the date on which Tenant shall move into such portion all Permits required for use of the Premises for Individual Property after the conduct of its businessRestoration have been obtained, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage together with such other evidence of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leaseforegoing as Lender may request.
(b) At the earliest practical time (as determined by Landlord acting reasonably) prior Lender may elect to the substantial completion make all or any portion of any Insurance Proceeds received by Lender pursuant to Section 2.7.8(a) (after deducting out Lender's cost of obtaining such repairInsurance Proceeds, Landlord including, without limitation, reasonable attorneys' fees) available to pay the costs of the Restoration, provided that Lender shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access make such Insurance Proceeds (after deducting Lender's cost as aforesaid) available to pay the Premises to perform Alterations on costs of the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
Restoration if (i) Tenant shall not commence work in any portion of the Premises until the date specified in a notice from Landlord such Insurance Proceeds are paid to Tenant stating that the repairs required Lender prior to be made by Landlord have been or will be completed to the extent reasonably necessaryFebruary 1, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with2007, and consistent with the performance of, the repairs remaining to be performed;
(ii) Such access by Tenant (A) the Insurance Proceeds received with respect to any Casualty (after deducting out such costs) shall not exceed fifty percent (50%) of the fair market value for the Individual Property in question as set forth on Schedule H annexed hereto or (B) such Insurance Proceeds (after deducting out such costs) shall equal or exceed fifty percent (50%) of such fair market value for such Individual Property and the ratio of (x) the Cash Flow Available for Debt Service for such Individual Property for the twelve (12) month period ending with the last day of the last full month prior to such Casualty for which Lender shall have received financial reports for such Individual Property pursuant to Section 5.1(k) (iv) to (y) the aggregate amount of payments of principal and interest that would be payable over the twelve (12) months following the date of such Casualty in order to amortize the current Allocable Principal Balance for such Individual Property, with interest at the Interest Rate, over the period from the date of such Casualty to the Maturity Date shall be deemed at least equal to be subject 1.53/1.0, unless, in such case, Borrowers shall elect not to all of perform the applicable provisions of this Lease, except Restoration (provided that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion Individual Property identified as the Hilton Head Holiday Inn located on Hilton Head Island, South Carolina, Lender may elect to apply such Insurance Proceeds as a prepayment of the Premises for principal balance of the Loan in accordance with Section 2.7.8 unless Borrowers shall demonstrate to Lender's reasonable satisfaction that Borrowers have obtained any period zoning variations or permits required to reconstruct such Individual Property to substantially its configuration prior to the Casualty Rent Commencement Date; and
such Casualty), and (iii) It is expressly understood that if Landlord no Default or Event of Default shall have occurred and be continuing and (iv) Borrowers shall have deposited with Lender an amount equal to the difference between the cost of the Restoration, as reasonably estimated by Lender, and the amount of Insurance Proceeds to be made available by Lender to pay such costs. If such Insurance Proceeds are less than $100,000, Lender shall pay such Insurance Proceeds over to the Borrower in question upon receipt of an Officer's Certificate stating the costs of such Restoration to which such Insurance Proceeds shall be prevented from substantially completing applied. If the repairs due Insurance Proceeds equal or exceed $100,000 and are to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason be made available to pay the costs of the performance of any AlterationRestoration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay Insurance Proceeds shall be paid by Tenant Lender to, or as directed by, the applicable Borrower, less retainage customary in the area where such Individual Property is located, from time to Landlord as Additional Rent within 10 days after demand therefor. Subject time during the course of the Restoration (but not more frequently than once per calendar month), upon (x) receipt of a written request for such disbursement by the applicable Borrower accompanied by an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (l) all materials installed and work and labor performed to date (except to the extent they are to be paid for out of the requested payment) in connection with the Restoration have been paid for in full, and (2) no mechanics' or other Liens on the applicable Individual Property arising out of the Restoration exist which have not been bonded or otherwise discharged or released, together with such other evidence of the foregoing provisionsas Lender may request and (y) compliance with such other reasonable conditions as Lender may from time to time impose.
(c) Any amount of Insurance Proceeds which Lender does not elect, Landlord and Tenant or is not required, to make available to pay the costs of the Restoration, or which remains after payment of the costs of any restoration or reconstruction, shall cooperate be applied as provided in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of same.Section 2.7.8(a)
Appears in 1 contract
Casualty and Restoration. (a) In the event of any casualty resulting in damage to the Leased Premises, including any casualty which renders the entire Leased Premises or a substantial portion thereof unsuitable for continued use, this Lease shall continue in full force and effect and there shall be no abatement or reduction of rent payable hereunder.
(b) Until such time as the Deed of Trust and the 1997 Deeds of Trust shall have been released and discharged, any Net Proceeds and any Net Award shall be applied either to the restoration or replacement of the property that was lost or to the redemption of Bonds and payment of the State Loans, as provided in the Deed of Trust and the 1997 Deeds of Trust.
(c) Unless there shall have occurred and be continuing an Event of Default hereunder pursuant to which Landlord is taking action to take possession of the Leased Premises or to terminate this Lease, or the Net Proceeds or the Net Award are to be used as directed by the Beneficiary as provided in the Deed of Trust or either of the Beneficiaries as provided in the 1997 Deeds of Trust, Landlord shall cause the Net Proceeds or Net Award to be held by the Insurance and Award Trustee in a restoration fund which shall be disbursed as follows:
(i) If the estimated cost of restoration is less than $100,000, and if prior to commencement of restoration, no Event of Default or event which would constitute an Event of Default pursuant to which Landlord is taking action to take possession of the Leased Premises or to terminate this Lease shall exist and no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, and if the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord (other than Leasehold Improvements which approval shall not be unreasonably withheld or Tenant’s Property) or the Building delayed), and Landlord shall be damaged by fire provided with reasonable assurance against mechanics’ liens, accrued or other casualty (collectivelyincurred, “Casualty”) as Landlord may reasonably require, and acceptable performance and payment bonds reasonably acceptable to Landlord in such an amount and form having a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant shall give prompt notice thereof surety reasonably acceptable to Landlord, then Landlord shall (or to and naming Landlord, the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building Credit Facility Provider and the Premises (not including any Leasehold Improvements or Tenant’s Property), State each as additional obligees; then such proceeds shall be payable to Landlord and made available to Tenant for application to pay the costs of restoration incurred by Tenant and Tenant shall repair promptly complete such restoration.
(ii) If the damage estimated cost of restoration is equal to any Leasehold Improvements or exceeds $100,000, and Tenantif the conditions set forth in subparagraph (i) above shall have been satisfied, and if Tenant provides evidence satisfactory to Landlord, the Credit Facility Provider and the State that sufficient funds are available to restore the Leased Premises, disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the date covered by the last disbursement, upon receipt of (A) satisfactory evidence, including architect’s Property. At certificates, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (C) contractors’ and subcontractors’ sworn statements, (D) a satisfactory bring-to-date of title insurance, and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics’ lien claims.
(iii) Each request for disbursement shall be accompanied by a certificate of Tenant, Landlord shallsigned by the President or any Vice President of Tenant, from time describing the work for which payment is requested, stating the cost incurred in connection therewith and stating that Tenant has not previously received payment for such work; the certificate to time, inform be delivered by Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial upon completion of the same work shall, in addition, state that the work has been completed and otherwise consult complies with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) (i) the date which is 90 days after such repairs which are required to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) and (ii) the date on which Tenant shall move into such portion of the Premises for the conduct of its business, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free requirements of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Lease.
(biv) At Landlord may retain 10% of each requisition against the earliest practical time (as determined by Landlord acting reasonably) prior restoration fund until the restoration is fully completed subject to the substantial completion of any such repair, Landlord shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
(i) Tenant shall not commence work in any portion reduction of the Premises until retained amount upon approval by the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed Credit Facility Provider in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performedlocal custom;
(iiv) Such access by Tenant The restoration fund shall be deemed to be subject to all invested in an interest bearing account of the applicable provisions Insurance and Award Trustee;
(vi) At all times the undisbursed balance of this Lease, except that there the restoration fund shall be no obligation on not less than the part cost of Tenant solely because completing the restoration work free and clear of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Dateall liens; and
(iiivii) It is expressly understood Landlord may impose other reasonable conditions provided the same are consistent with those imposed upon such disbursements by the Beneficiary under the Deed of Trust or either of the Beneficiaries under the 1997 Deeds of Trust. In addition, prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as determined by the evaluation of an independent engineer acceptable to Landlord, exceeds the amount of the Net Proceeds or the Net Award available for such restoration, Tenant will provide evidence satisfactory to Landlord that if Landlord the amount of such excess will be available to restore the Leased Premises. Any sum which remains in the restoration fund upon completion of restoration shall be prevented from substantially completing refunded to Tenant up to the repairs due to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason of the performance of any Alteration, by reason amount of Tenant’s failure deposits pursuant to the immediately preceding sentence. If no such refund is required or refusal any sum remains in the restoration fund after such refund, such sum remaining in the restoration fund (including the residue of any Net Award in a condemnation remaining after restoration) upon completion of restoration shall be applied (x) during any period in which either of the Credit Facilities is in effect, to comply the Landlord’s reimbursement obligations to the Credit Facility Provider to the extent of any drawings honored by the Credit Facility Provider to pay the redemption price of Bonds redeemed in accordance with Section 3.1(b) of the Indenture or to cause its architectspay the purchase price of Bonds purchased pursuant to Section 4.4 of the Indenture or (y) during any period in which any Bonds are outstanding, engineersto the redemption of Bonds in accordance with Section 3.1(b) of the Indenture or to the purchase of Bonds as set forth in Section 4.4 of the Indenture. During any period in which any Bonds are outstanding, designers any sums remaining in an amount less than the minimum Authorized Denomination (as defined in the Indenture) shall be deposited in the Principal Account (as defined in the Indenture). If no Bonds are outstanding, and contractors either of the Credit Facility Agreements is still in effect, such remaining sum shall be applied to comply with the Landlord’s Credit Facility Obligations under the Credit Facility Documents. If no Bonds are outstanding and neither of the Credit Facility Agreements is in effect, such remaining sum shall be distributed to the State for repayment of the State Loans and then to Landlord and Tenant in proportion to the value of each party’s interest in the Leased Premises as determined by mutual agreement.
(d) Tenant shall be solely responsible for the replacement and/or repair of any of Tenant’s obligations described or referred to in Equipment damaged by casualty.
(e) The terms and provisions of this Lease, or, Paragraph 16 are subject to the terms and provisions of this Leasethe Deed of Trust, if such repairs are not completedthe 1997 Deeds of Trust, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay 1997 Lease and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay shall be paid by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of sameState Loan Documents.
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Casualty and Restoration. (a) Section 7.01. If during the Term all or any part of the Demised Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged or destroyed by fire or other casualty, Tenant shall promptly give notice thereof to Landlord and Landlord shall, at Landlord's sole cost and expense subject to availability and receipt from Tenant's insurance company(ies) of the insurance proceeds and the receipt from Tenant of the deductible amount of such insurance, if any, [except as provided in Section 7.02 of this Lease] repair, restore, or replace the same as nearly as possible to its value, condition and character immediately prior to such damage or destruction. Landlord shall within thirty (30) days following notice from Tenant of the casualty (collectively, “Casualty”) advise Tenant the amount of time such repairs are reasonably estimated to require.
Section 7.02. If during the Term the Demised Premises shall be substantially damaged or destroyed in any single casualty in such a manner that materially interferes with Tenant’s use such damage cannot, in Landlord's reasonable judgment, be repaired within twelve (12) months from the date of such casualty, Landlord shall so notify Tenant within sixty (60) days after Landlord's receipt of the Premises for general office use or reasonable access notice required pursuant to Section 7. 01 hereof and Landlord may by such notice terminate this Lease. If Landlord shall give such notice of termination, this Lease shall terminate on the 30th day following the date Tenant receives notice of termination from Landlord in accordance with the provisions of this Section provided that the Basic Rent and Additional Charges, if any, payable by Tenant hereunder shall be abated as of the date of such casualty in proportion to the Premises and, in the case area of the Demised Premises that Tenant is unable to occupy.
Section 7.03. If during the Term the Demised Premises shall be damaged or destroyed in any single casualty and Landlord (if permitted to do so) does not give notice of its intention to terminates this Lease, as provided in Section 7.02, this Lease shall continue in force and effect, and Landlord shall repair, restore or replace the same as provided in Section 7.01; provided, however, if the estimated time period for repair exceeds nine (9) months or if such statement estimating the repair time is not delivered to Tenant, Tenant may elect to terminate this Lease by notice to Landlord not later than thirty (30) days following receipt of such statement or, if no statement has been delivered, not later than thirty (30) days after the expiration of the time period such statement should have been delivered to Tenant. If Tenant makes such election, the Term shall expire upon the thirtieth (30th) day after notice of such election is given by Tenant to Landlord; provided, however, that Landlord shall not be required to proceed with such repairs if (A) the repair estimate exceeds nine (9) months if the casualty occurs within the period from the first day of the ninth (9th) Lease Year to the last day of the tenth (10th) Lease Year, and (B) an "Event of Default" has occurred pursuant to such mortgage which is continuing, unless such mortgagee can reasonably approve the contractor, and payments with respect thereto, reasonably approve the receiver for the Demised Premises, if any, and if permitted by law, and so long as Tenant agrees to renew the Lease for Extended Term One without the right to terminate the Lease if the "prevailing market rate" as determined by the parties or arbitration is unsatisfactory.
Section 7.04. All insurance proceeds received by Landlord on account of such damage or destruction (in excess of a casualty loss where proceeds are less than $75,000, then the proceeds are not required to be placed in an escrow account), less the actual cost, fees and expenses, if any, incurred in connection with adjustment of the loss, shall give prompt notice thereof to be retained in escrow in an interest earning account and held by the first mortgagee of Landlord, if any, provided such mortgagee shall be an Institutional Mortgagee or, if there be none or if the same is not a bank, in such bank as shall be selected by Landlord and approved by Tenant, such approval not to be unreasonably withheld, conditioned or delayed, under the name of Landlord and Tenant and shall be paid either to reimburse Landlord for expenditures made to repair, restore or replace any part of the Demised Premises so damaged or destroyed (which expenditures shall include expenditures made for temporary repairs or for the protection of property pending the completion of permanent repairs, restorations or replacements to the Demised Premises, or to prevent interference with the business operated thereon, and repairs, restorations or replacements thereto then in process insofar as actually made or constructed) or to pay contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for said repairs, restorations or replacements (herein called the "Restoration"), and shall be withdrawn from the account as hereinafter provided from time to time as the Restoration progresses upon the written request of Landlord to Tenant, which shall be accompanied by the following:
(a) A certificate of the architect or engineer in charge of the Restoration (who shall be selected by Landlord and be reasonably satisfactory to Tenant) dated not more than thirty (30) days prior to such request, setting forth in substance as follows: that the sum then requested to be withdrawn either has been paid by Landlord, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who shall have rendered services or furnished materials for the Restoration therein specified; the names of such persons; a brief description of such services and materials and the several amounts so paid or due to each of such persons and a statement that none of the cost of the services and materials described in the certificate has been or is being made the basis, in any previous or then pending request, for a payment under this Section or Section 8.04, and that the sum then requested does not exceed the value of the services and materials described in the certificate; that, except for the amount, if any, stated pursuant to the foregoing paragraph (1) of subsection (a) in such certificate to be due for services or materials, there is not outstanding any indebtedness known to the persons signing such certificates which is then due for labor, wages, materials, supplies or services in connection with the Restoration which, if unpaid, might become the basis of a vendors, mechanic's, laborer's or materialman's lien upon the Demised Premises or any part thereof except for the following claims and disputes: (list same); and that the cost and any amounts due and under dispute under paragraph (2) of subsection (a) above, as estimated by the persons signing such certificate, of the Restoration required to be done subsequent to the date of such certificate in order to complete the Restoration does not exceed the insurance proceeds remaining in the bank account after payment of the sum requested in such certificate. Upon compliance with the foregoing provisions of this Section, the first mortgagee or Landlord shall be authorized by Tenant, whose approval shall not be unreasonably delayed, withheld or conditioned but whose approval shall be deemed approved five (5) days after delivery of any such request, out of such insurance proceeds to pay or cause to be paid to Landlord or to the extent required under persons named (pursuant to paragraph (1) of subsection (a) of this Section) in such certificate the Condominium Documentsrespective amounts stated therein to have been paid by Landlord or to be due to them, cause as the Board of Managers to) diligently repair the damage case may be.
Section 7.05. Subject to the Building provisions of Section 6.03 hereof and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, receipt by Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and proceeds of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) (i) the date which is 90 days after such repairs which are insurance required to be performed provided thereunder, if the Improvements shall be partially damaged or partially destroyed by a casualty, the Basic Rent and Additional Charges payable hereunder shall be abated to the extent that the Improvements shall have been rendered untenantable for the period from the date of such damage or destruction to the date the damage shall be repaired or restored. Subject to the provisions of Section 6.03 hereof and the receipt by Landlord of the proceeds of the insurance required to be provided thereunder, if the Improvements or a major part thereof shall be substantially completed (damaged or destroyed that it is rendered untenantable on account of which substantial completion a casualty, the Basic Rent and Additional Charges shall abatx xx of the date of the damage or destruction and until Landlord shall promptly notify Tenant) repair, restore and (ii) rebuild the date on which Improvements, provided, however, that should Tenant shall move into such portion of the Premises reoccupy for the conduct of its businessbusiness a portion of the Improvements during the period the Restoration work is taking place and prior to the date that the same are made completely tenantable, the Base Basic Rent and Additional Rent Charges allocable to such portion shall be reduced payable by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after Tenant from the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leasesuch occupancy.
(b) At the earliest practical time (as determined by Landlord acting reasonably) prior to the substantial completion of any such repair, Landlord shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
(i) Tenant shall not commence work in any portion of the Premises until the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performed;
(ii) Such access by Tenant shall be deemed to be subject to all of the applicable provisions of this Lease, except that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Date; and
(iii) It is expressly understood that if Landlord shall be prevented from substantially completing the repairs due to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason of the performance of any Alteration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay shall be paid by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of same.
Appears in 1 contract
Casualty and Restoration. (a) If the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other casualty (collectively, “Casualty”) in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant Borrower shall give prompt written notice thereof to LandlordLender of any damage to or destruction of all or any portion of the Property (any such event being herein referred to as a "Casualty"). Provided that Lender shall make Insurance Proceeds available pursuant to Section 7.2.2(b), then Landlord Borrower shall (or promptly and diligently restore, replace, rebuild and repair the Property as nearly as possible to the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building value and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant condition of the progress of Landlord’s Property immediately prior to such Casualty (or the Board of Manager’s) restoration work such restoration, replacement, rebuilding and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (repair is herein referred to as the “"Restoration"), regardless of whether Insurance Proceeds shall be payable with respect to such Casualty Rent Commencement Date”or shall be sufficient to pay for the Restoration. The plans and specifications and Permits for the Restoration shall be submitted to Lender in advance and shall be reasonably satisfactory to Lender in all respects. The Restoration shall be done in compliance with all Legal Requirements, and Borrower shall carry builder's risk insurance satisfactory to Lender in connection with the Restoration. Lender, its agents and representatives shall have the right to inspect the Property to monitor the Restoration. All reasonable costs and expenses incurred by Lender, its agents or representatives in connection with the Restoration, including, without limitation, counsel fees and engineers fees incurred by Lender in connection with the review of plans, specifications and Permits and the monitoring of the Restoration, shall be paid by Borrower. Upon completion of the Restoration, Borrower shall deliver to Lender an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (iA) all materials installed and work and labor performed in connection with the Restoration have been paid for in full, (B) no mechanics' or other Liens on the Property arising out of the Restoration exist which have not been bonded or otherwise discharged of record, (C) the date which is 90 days after such repairs which are required Restoration has been completed in compliance with the plans and specifications submitted to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) Lender and all Legal Requirements and (iiD) the date on which Tenant shall move into such portion all Permits required for use of the Premises for Property after the conduct of its businessRestoration have been obtained, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage together with such other evidence of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leaseforegoing as Lender may request.
(b) At the earliest practical time (as determined by Landlord acting reasonably) prior Lender may elect to the substantial completion make all or any portion of any Insurance Proceeds received by Lender pursuant to Section 2.7.8(a) (after deducting out Lender's cost of obtaining such repairInsurance Proceeds, Landlord including, without limitation, reasonable attorneys' fees) available to pay the costs of the Restoration, provided that Lender shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access make such Insurance Proceeds (after deducting Lender's cost as aforesaid) available to pay the Premises to perform Alterations on costs of the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
Restoration if (i) Tenant such Insurance Proceeds are paid to Lender prior to February 1, 2007, (ii) (A) the Insurance Proceeds received with respect to any Casualty (after deducting out such costs) shall not commence work in any portion exceed fifty percent (50%) of the Premises until fair market value for the Property as set forth on Schedule M annexed hereto or (B) such Insurance Proceeds (after deducting out such costs) shall equal or exceed fifty percent (50%) of such fair market value for the Property and the ratio of (x) the Cash Flow Available for Debt Service for the Property for the twelve (12) month period ending with the last day of the last full month prior to such Casualty for which Lender shall have received financial reports for the Property pursuant to Section 5.1(k) (iv) to (y) the aggregate amount of payments of principal and interest that would be payable over the twelve (12) months following the date specified of such Casualty in a notice order to amortize the current Principal Balance for the Property, with interest at the Interest Rate, over the period from Landlord the date of such Casualty to Tenant stating that the repairs required Maturity Date shall be at least equal to 1.62/1.0, unless, in such case, Borrower shall elect not to perform the Restoration, (iii) no Default or Event of Default shall have occurred and be continuing and (iv) Borrower shall have deposited with Lender an amount equal to the difference between the cost of the Restoration, as reasonably estimated by Lender, and the amount of Insurance Proceeds to be made available by Landlord have been or will be completed Lender to pay such costs. If such Insurance Proceeds are less than $100,000, Lender shall pay such Insurance Proceeds over to the extent reasonably necessary, Borrower in Landlord’s reasonable discretion, question upon receipt of an Officer's Certificate stating the costs of such Restoration to permit which such Insurance Proceeds shall be applied. If the commencement Insurance Proceeds equal or exceed $100,000 and are to be made available to pay the costs of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference withRestoration, and consistent with the performance of, the repairs remaining to be performed;
(ii) Such access by Tenant shall be deemed to be subject to all of the applicable provisions of this Lease, except that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Date; and
(iii) It is expressly understood that if Landlord shall be prevented from substantially completing the repairs due to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason of the performance of any Alteration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay Insurance Proceeds shall be paid by Tenant Lender to, or as directed by, Borrower, less retainage customary in the area where the Property is located, from time to Landlord as Additional Rent within 10 days after demand therefor. Subject time during the course of the Restoration (but not more frequently than once per calendar month), upon (x) receipt of a written request for such disbursement by Borrower accompanied by an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (1) all materials installed and work and labor performed to date (except to the extent they are to be paid for out of the requested payment) in connection with the Restoration have been paid for in full, and (2) no mechanics' or other Liens on the Property arising out of the Restoration exist which have not been bonded or otherwise discharged or released, together with such other evidence of the foregoing provisionsas Lender may request, Landlord and Tenant (y) compliance with such other reasonable conditions as Lender may from time to time impose.
(c) Any amount of Insurance Proceeds which Lender does not elect, or is not required, to make available to pay the costs of the Restoration, or which remains after payment of the costs of any restoration or reconstruction, shall cooperate be applied as provided in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of sameSection 2.7.8(a).
Appears in 1 contract
Casualty and Restoration. (a) In the event of any casualty resulting in damage to the Leased Premises, including any casualty which renders the entire Leased Premises or a substantial portion thereof unsuitable for continued use, this Lease shall continue in full force and effect and there shall be no abatement or reduction of rent payable hereunder.
(b) Until such time as the Deeds of Trust shall have been released and discharged, any Net Proceeds and any Net Award shall be applied either to the restoration or replacement of the property that was lost or to the redemption of Bonds and payment of the State Loans, as provided in the Deeds of Trust.
(c) Unless there shall have occurred and be continuing an Event of Default hereunder pursuant to which Landlord is taking action to take possession of the Leased Premises or to terminate this Lease, or the Net Proceeds or the Net Award are to be used as directed by either of the Beneficiaries as provided in the Deeds of Trust, Landlord shall cause the Net Proceeds or Net Award to be held by the Insurance and Award Trustee in a restoration fund which shall be disbursed as follows:
(i) If the estimated cost of restoration is less than $100,000, and if prior to commencement of restoration, no Event of Default or event which would constitute an Event of Default pursuant to which Landlord is taking action to take possession of the Leased Premises or to terminate this Lease shall exist and no mechanics' or materialmen's liens shall have been filed and remain undischarged, and if the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord (other than Leasehold Improvements which approval shall not be unreasonably withheld or Tenant’s Property) or the Building delayed), and Landlord shall be damaged by fire provided with reasonable assurance against mechanics' liens, accrued or other casualty (collectivelyincurred, “Casualty”) as Landlord may reasonably require, and acceptable performance and payment bonds reasonably acceptable to Landlord in such an amount and form having a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant shall give prompt notice thereof surety reasonably acceptable to Landlord, then Landlord shall (or to and naming Landlord, the extent required under the Condominium DocumentsCredit Facility Provider, cause the Board of Managers to) diligently repair the damage to the Building MIDFA and the Premises (not including any Leasehold Improvements or Tenant’s Property), State each as additional obligees; then such proceeds shall be payable to Landlord and made available to Tenant for application to pay the costs of restoration incurred by Tenant and Tenant shall repair promptly complete such restoration.
(ii) If the damage estimated cost of restoration is equal to any Leasehold Improvements or exceeds $100,000, and Tenant’s Property. At if the conditions set forth in subparagraph (i) above shall have been satisfied, and if Tenant provides evidence satisfactory to Landlord, the Credit Facility Provider, MIDFA and the State that sufficient funds are available to restore the Leased Premises, disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the date covered by the last disbursement, upon receipt of (A) satisfactory evidence, including architect's certificates, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (C) contractors' and subcontractors' sworn statements, (D) a satisfactory bring-to-date of title insurance, and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' lien claims.
(iii) Each request for disbursement shall be accompanied by a certificate of Tenant, Landlord shallsigned by the President or any Vice President thereof, from time describing the work for which payment is requested, stating the cost incurred in connection therewith and stating that Tenant has not previously received payment for such work; the certificate to time, inform be delivered by Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial upon completion of the same work shall, in addition, state that the work has been completed and otherwise consult complies with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) (i) the date which is 90 days after such repairs which are required to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) and (ii) the date on which Tenant shall move into such portion of the Premises for the conduct of its business, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free requirements of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Lease.
(biv) At Landlord may retain 10% of each requisition against the earliest practical time (as determined by Landlord acting reasonably) prior restoration fund until the restoration is fully completed subject to the substantial completion of any such repair, Landlord shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
(i) Tenant shall not commence work in any portion reduction of the Premises until retained amount upon approval by the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed Credit Facility Provider in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performedlocal custom;
(iiv) Such access by Tenant The restoration fund shall be deemed to be subject to all invested in an interest bearing account of the applicable provisions Insurance and Award Trustee;
(vi) At all times the undisbursed balance of this Lease, except that there the restoration fund shall be no obligation on not less than the part cost of Tenant solely because completing the restoration work free and clear of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Dateall liens; and
(iiivii) It is expressly understood Landlord may impose other reasonable conditions provided the same are consistent with those imposed upon such disbursements by either of the Beneficiaries under the Deeds of Trust. In addition, prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as determined by the evaluation of an independent engineer acceptable to Landlord, exceeds the amount of the Net Proceeds or the Net Award available for such restoration, Tenant will provide evidence satisfactory to Landlord that if Landlord the amount of such excess will be available to restore the Leased Premises. Any sum which remains in the restoration fund upon completion of restoration shall be prevented from substantially completing refunded to Tenant up to the repairs due to any acts amount of Tenant's deposits pursuant to the immediately preceding sentence. If no such refund is required or any sum remains in the restoration fund after such refund, its agentssuch sum remaining in the restoration fund (including the residue of any Net Award in a condemnation remaining after restoration) upon completion of restoration shall be applied (x) during any period in which the Credit Facility is in effect, servants, employees or contractors, including without limitation to the Landlord's reimbursement obligations to the Credit Facility Provider to the extent of any drawings honored by reason the Bank to pay the redemption price of Bonds redeemed in accordance with Section 3.1(b) of the performance of any Alteration, by reason of Tenant’s failure or refusal to comply Indenture or to cause its architectspay the purchase price of Bonds purchased pursuant to Section 4.4 of the Indenture or (y) during any period in which any Bonds are outstanding, engineersto the redemption of Bonds in accordance with Section 3.1(b) of the Indenture or to the purchase of Bonds as set forth in Section 4.4 of the Indenture. During any period in which any Bonds are outstanding, designers any sums remaining in an amount less than the minimum Authorized Denomination (as defined in the Indenture) shall be deposited in the Principal Account (as defined in the Indenture). If no Bonds are outstanding, and contractors the Credit Facility Agreement is still in effect, such remaining sum shall be applied to comply with the Landlord's Credit Facility Obligations under the Credit Facility Documents. If no Bonds are outstanding and the Credit Facility Agreement is no longer in effect, such remaining sum shall be distributed to the State for repayment of the State Loans and then to Landlord and Tenant in proportion to the value of each party's interest in the Leased Premises as determined by mutual agreement.
(d) Tenant shall be solely responsible for the replacement and/or repair of any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed 's Equipment damaged by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay shall be paid by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of samecasualty.
Appears in 1 contract
Casualty and Restoration. (a) If In the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other event of any casualty (collectively, “Casualty”) resulting in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant shall give prompt notice thereof to Landlord, then Landlord shall (or to the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building and the Premises (not Leased Premises, including any Leasehold Improvements casualty which renders the entire Leased Premises or Tenant’s Property)a substantial portion thereof unsuitable for continued use, this Lease shall continue in full force and Tenant shall repair the damage to any Leasehold Improvements effect and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) (i) the date which is 90 days after such repairs which are required to be performed by Landlord there shall be substantially completed (no abatement or reduction of which substantial completion Landlord shall promptly notify Tenant) and (ii) the date on which Tenant shall move into such portion of the Premises for the conduct of its business, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leaserent payable hereunder.
(b) At Until such time as the earliest practical time (as determined by Landlord acting reasonably) prior Deed of Trust and the 1997 Deeds of Trust shall have been released and discharged, any Net Proceeds and any Net Award shall be applied either to the substantial completion restoration or replacement of any such repairthe property that was lost or to the redemption of Bonds and payment of the State Loans, as provided in the Deed of Trust and the 1997 Deeds of Trust.
(c) Unless there shall have occurred and be continuing an Event of Default hereunder pursuant to which Landlord is taking action to take possession of the Leased Premises or to terminate this Lease, or the Net Proceeds or the Net Award are to be used as directed by the Beneficiary as provided in the Deed of Trust or either of the Beneficiaries as provided in the 1997 Deeds of Trust, Landlord shall provide Tenant cause the Net Proceeds or Net Award to be held by the Insurance and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):Award Trustee in a restoration fund which shall be disbursed as follows:
(i) If the estimated cost of restoration is less than $100,000, and if prior to commencement of restoration, no Event of Default or event which would constitute an Event of Default pursuant to which Landlord is taking action to take possession of the Leased Premises or to terminate this Lease shall exist and no mechanics' or materialmen's liens shall have been filed and remain undischarged, and if the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord (which approval shall not be unreasonably withheld or delayed), and Landlord shall be provided with reasonable assurance against mechanics' liens, accrued or incurred, as Landlord may reasonably require, and acceptable performance and payment bonds reasonably acceptable to Landlord in an amount and form having a surety reasonably acceptable to Landlord, and naming Landlord, each of the Credit Facility Providers, MIDFA and the State each as additional obligees; then such proceeds shall be payable to Landlord and made available to Tenant for application to pay the costs of restoration incurred by Tenant and Tenant shall not commence work in any portion of the Premises until the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performed;promptly complete such restoration.
(ii) Such access by If the estimated cost of restoration is equal to or exceeds $100,000, and if the conditions set forth in subparagraph (i) above shall have been satisfied, and if Tenant provides evidence satisfactory to Landlord, the Credit Facility Providers, MIDFA and the State that sufficient funds are available to restore the Leased Premises, disbursements shall be deemed made from time to be subject to all time in an amount not exceeding the cost of the applicable provisions work completed since the date covered by the last disbursement, upon receipt of this Lease(A) satisfactory evidence, except that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rentincluding architect's certificates, with respect to the affected portion of the Premises for any period prior stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the Casualty Rent Commencement Date; andcontracts, plans and specifications, (B) waivers of liens, (C) contractors' and subcontractors' sworn statements, (D) a satisfactory bring-to-date of title insurance, and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' lien claims.
(iii) It is expressly understood that if Landlord Each request for disbursement shall be prevented from substantially completing the repairs due to any acts accompanied by a certificate of Tenant, its agents, servants, employees signed by the President or contractors, including without limitation by reason of the performance of any Alteration, by reason Vice President of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when describing the work would have been substantially completed but for which payment is requested, stating the cost incurred in connection therewith and stating that Tenant has not previously received payment for such delay and work; the expiration of the abatement of the Tenant’s obligations hereunder shall not certificate to be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay shall be paid delivered by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of same.upon completion of
Appears in 1 contract
Casualty and Restoration. (a) If In the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other event of any casualty (collectively, “Casualty”) in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises andProperty, in the case of the Premises, if Tenant shall give prompt notice thereof to Landlord, then Landlord shall (or to the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant of the progress of Landlord’s (or the Board of Manager’s) restoration work and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (herein referred to as the “Casualty Rent Commencement Date”) (i) the date which is 90 days after such repairs which are required to be performed by Landlord shall be substantially completed (of which substantial completion Landlord Borrower shall promptly notify Tenant) commence and (ii) the date on which Tenant shall move into such portion of the Premises for the conduct of its business, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completioncompletion the repair, within 60 days after the date of substantial completionreplacement, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair restoration and rebuilding of the structural components of Property (the Premises"Restoration Work") so damaged, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building destroyed or taken in full compliance with all Legal Requirements and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this SectionArticle III, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leasefree and clear from any and all Liens, claims and encumbrances.
(b) At Following (i) the earliest practical time occurrence of a Taking in which Lender approves, in its sole discretion, Xxxxxxxx's request to rebuild, or (as determined by Landlord acting reasonablyii) prior an insured casualty, Lender shall apply the Net Proceeds to pay the substantial completion cost of any such repair, Landlord shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):Restoration Work in accordance with Section 3.4 hereof provided:
(i) Tenant shall not commence work in any portion no Event of the Premises until the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed to the extent reasonably necessary, in Landlord’s reasonable discretion, to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performedDefault exists;
(ii) Such access Borrower has provided its written (A) agreement to proceed promptly and diligently with the Restoration Work in compliance with all Legal Requirements and plans and specifications approved by Tenant shall be deemed to be subject to all an Architect, the applicable Governmental Authority and, if requested, Lender and (B) certification setting forth a reasonable estimate of the applicable provisions cost of this Lease, except that there shall completing the Restoration Work and time schedule therefor;
(iii) the Restoration Work can be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period completed prior to the Casualty Rent Commencement earlier of (A) one year prior to the Maturity Date, or (B) the date occurring six (6) months after the date of the casualty or Taking;
(iv) in Xxxxxx's sole judgment, there are sufficient proceeds of business interruption, rent insurance or cash available to pay the Debt through the completion of the Restoration Work and any reasonable period thereafter for leasing the Property;
(v) in the event of a casualty, Borrower provides substantiation requested by and satisfactory to Lender with respect to:
(A) the feasibility and reasonability of the schedule and costs;
(B) the restoration of the Property resulting in an economically viable project at least equivalent to the quality and character of the Property immediately prior to the casualty;
(C) the projected income and cash flow of the Property after the restoration being at least equivalent to the levels prior to the casualty;
(D) the sufficiency of the Net Proceeds to complete the Restoration Work during all phases of such work; and
(E) this Deed of Trust remaining a first priority lien on the Property.
(c) If the cost of the Restoration Work exceeds the Net Proceeds, Borrower shall deliver to Lender either: (i) cash collateral; (ii) an unconditional, irrevocable, transferable letter of credit in form, substance, amount and issued by a bank acceptable to Lender or (iii) It is expressly understood that a completion bond in form, substance, amount and issued by a surety company acceptable to Lender.
(d) Notwithstanding the foregoing, if Landlord a casualty involves destruction of seventy-five percent (75%) or more of the Premises, any right to rebuild or restore the Property shall be prevented from substantially completing the repairs due to any acts of Tenantin Lender's sole discretion.
(e) Borrower agrees with Lender that all fees, its agents, servants, employees or contractors, costs and expenses (including without limitation limitation, all reasonable attorneys' fees, engineers' fees, architects' fees, insurance consultants' fees, title endorsements and all disbursements) incurred by reason Xxxxxx in connection with the restoration of the performance of any AlterationProperty, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers reviewing and contractors to comply monitoring the restoration and verifying compliance with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work Article III shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration constitute a part of the abatement cost of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay Restoration Work and shall be paid by Tenant to Landlord as Additional Rent within 10 days after demand therefor. Subject to the foregoing provisions, Landlord and Tenant shall cooperate in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of sameBorrower.
Appears in 1 contract
Casualty and Restoration. (a) If the Premises (other than Leasehold Improvements or Tenant’s Property) or the Building shall be damaged by fire or other casualty (collectively, “Casualty”) in such a manner that materially interferes with Tenant’s use of the Premises for general office use or reasonable access to the Premises and, in the case of the Premises, if Tenant Borrower shall give prompt written notice thereof to LandlordLender of any damage to or destruction of all or any portion of the Property (any such event being herein referred to as a "Casualty"). Provided that Lender shall make Insurance Proceeds available pursuant to Section 7.2.2(b), then Landlord Borrower shall (or promptly and diligently restore, replace, rebuild and repair the Property as nearly as possible to the extent required under the Condominium Documents, cause the Board of Managers to) diligently repair the damage to the Building value and the Premises (not including any Leasehold Improvements or Tenant’s Property), and Tenant shall repair the damage to any Leasehold Improvements and Tenant’s Property. At the request of Tenant, Landlord shall, from time to time, inform Tenant condition of the progress of Landlord’s Property immediately prior to such Casualty (or the Board of Manager’s) restoration work such restoration, replacement, rebuilding and of the estimated date of substantial completion of the same and otherwise consult with Tenant with respect thereto. Until the earlier to occur of (repair is herein referred to as the “"Restoration"), regardless of whether Insurance Proceeds shall be payable with respect to such Casualty Rent Commencement Date”or shall be sufficient to pay for the Restoration. The plans and specifications and Permits for the Restoration shall be submitted to Lender in advance and shall be reasonably satisfactory to Lender in all respects. The Restoration shall be done in compliance with all Legal Requirements, and Borrower shall carry builder's risk insurance satisfactory to Lender in connection with the Restoration. Lender, its agents and representatives shall have the right to inspect the Property to monitor the Restoration. All reasonable costs and expenses incurred by Lender, its agents or representatives in connection with the Restoration, including, without limitation, counsel fees and engineers fees incurred by Lender in connection with the review of plans, specifications and Permits and the monitoring of the Restoration, shall be paid by Borrower. Upon completion of the Restoration, Borrower shall deliver to Lender an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (iA) all materials installed and work and labor performed in connection with the Restoration have been paid for in full, (B) no mechanics' or other Liens on the Property arising out of the Restoration exist which have not been bonded or otherwise discharged of record, (C) the date which is 90 days after such repairs which are required Restoration has been completed in compliance with the plans and specifications submitted to be performed by Landlord shall be substantially completed (of which substantial completion Landlord shall promptly notify Tenant) Lender and all Legal Requirements and (iiD) the date on which Tenant shall move into such portion all Permits required for use of the Premises for Property after the conduct of its businessRestoration have been obtained, the Base Rent and Additional Rent shall be reduced by the proportion which the Rentable Square Footage together with such other evidence of the part of the Premises Tenant’s use of or access to which is materially affected bears to the total Rentable Square Footage of the Premises. Upon the substantial completion of such repairs, Landlord shall diligently prosecute to completion, within 60 days after the date of substantial completion, any agreed upon items of repair work not completed (i.e. “punchlist” items). Landlord shall have no obligation to repair any damage to, or to replace, any Leasehold Improvements or Tenant’s Property, which shall be Tenant’s obligation to repair. Landlord’s (or the Board of Manager’s) obligation to repair the Premises pursuant to this Section 16.01 shall be limited to the repair of the structural components of the Premises, the floor slabs of the Premises, Common Areas, the Building core areas of the Premises, the curtain wall of the Building and the Building Systems to substantially the condition that existed immediately prior to the applicable casualty, vacant and free of tenancies (other than the tenancy created hereby). However, in no event shall Landlord be required to spend more than the insurance proceeds received by Landlord. Landlord shall not be liable for any loss or damage to Tenant’s Property or to the business of Tenant resulting in any way from the Casualty or from the repair and restoration of the damage. Landlord and Tenant hereby waive the provisions of any Law relating to the matters addressed in this Section, and agree that their respective rights for damage to or destruction of the Premises shall be those specifically provided in this Leaseforegoing as Lender may request.
(b) At the earliest practical time (as determined by Landlord acting reasonably) prior to the substantial completion of any such repair, Landlord Lender shall provide Tenant and Tenant’s contractor, subcontractors and materialmen access to the Premises to perform Alterations on the following terms and conditions (but not to occupy the same for the conduct of Tenant’s business):
(i) Tenant shall not commence work in make all or any portion of any Insurance Proceeds received by Lender pursuant to Section 2.6.8(a) (after deducting out Lender's cost of obtaining such Insurance Proceeds, including, without limitation, reasonable attorneys' fees) available to pay the Premises until costs of the date specified in a notice from Landlord to Tenant stating that the repairs required to be made by Landlord have been or will be completed Restoration. If such Insurance Proceeds are less than $100,000, Lender shall pay such Insurance Proceeds over to the extent reasonably necessary, in Landlord’s reasonable discretion, Borrower upon receipt of an Officer's Certificate stating the costs of such Restoration to permit the commencement of the Alterations then prudent to be performed in accordance with good construction practice in the portion in question without unreasonable interference with, and consistent with the performance of, the repairs remaining to be performed;
(ii) Such access by Tenant which such Insurance Proceeds shall be deemed to be subject to all of applied. If the applicable provisions of this LeaseInsurance Proceeds equal or exceed $100,000, except that there shall be no obligation on the part of Tenant solely because of such access to pay any Base Rent and Additional Rent, with respect to the affected portion of the Premises for any period prior to the Casualty Rent Commencement Date; and
(iii) It is expressly understood that if Landlord shall be prevented from substantially completing the repairs due to any acts of Tenant, its agents, servants, employees or contractors, including without limitation by reason of the performance of any Alteration, by reason of Tenant’s failure or refusal to comply or to cause its architects, engineers, designers and contractors to comply with any of Tenant’s obligations described or referred to in this Lease, or, subject to the provisions of this Lease, if such repairs are not completed, because under good construction scheduling practice such repairs should be performed after completion of any Alteration, then such work shall be deemed substantially complete on the date when the work would have been substantially completed but for such delay and the expiration of the abatement of the Tenant’s obligations hereunder shall not be postponed by reason of such delay. Any reasonable additional costs to Landlord to complete any work occasioned by such delay Insurance Proceeds shall be paid by Tenant Lender to, or as directed by, Borrower, less retainage customary in the area where the Property is located, from time to Landlord as Additional Rent within 10 days after demand therefor. Subject time during the course of the Restoration (but not more frequently than once per calendar month), upon (x) receipt of a written request for such disbursement by Borrower accompanied by an Officer's Certificate (or if the cost of such Restoration shall exceed $250,000, a certificate of an Engineer) stating that (1) all materials installed and work and labor performed to date (except to the extent they are to be paid for out of the requested payment) in connection with the Restoration have been paid for in full, and (2) no mechanics' or other Liens on the Property arising out of the Restoration exist which have not been bonded or otherwise discharged or released, together with such other evidence of the foregoing provisionsas Lender may request, Landlord and Tenant (y) compliance with such other reasonable conditions as Lender may from time to time impose and (z) compliance with such other conditions as may be imposed by the Ground Lease.
(c) Any amount of Insurance Proceeds which remains after payment of the costs of any restoration or reconstruction, shall cooperate be applied as provided in good faith to jointly develop a work schedule governing both parties’ restoration work at the Building and within the Premises and the relative priority of sameSection 2.6.8(a).
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