DAMAGES, DESTRUCTION AND EMINENT DOMAIN (a) If, prior to closing, the Property or any part thereof be destroyed or further damaged by fire, the elements, or any cause, due to events occurring subsequent to the date of this Agreement to the extent that the cost of repair exceeds $10,000.00, this Agreement shall become null and void, at Buyer's option exercised, if at all, by written notice to Seller within ten (10) days after Buyer has received written notice from Seller of said destruction or damage. Seller, however, shall have the right to adjust or settle any insured loss until (i) all contingencies set forth in Paragraph 6 hereof have been satisfied, or waived; and (ii) any ten-day period provided for above in this Subparagraph 16a for Buyer to elect to terminate this Agreement has expired or Buyer has, by written notice to Seller, waived Buyer's right to terminate this Agreement. If Buyer elects to proceed and to consummate the purchase despite said damage or destruction, there shall be no reduction in or abatement of the purchase price, and Seller shall assign to Buyer the Seller's right, title, and interest in and to all insurance proceeds (pro-rata in relation to the Entire Property) resulting from said damage or destruction to the extent that the same are payable with respect to damage to the Property, subject to rights of any Tenant of the Entire Property. If the cost of repair is less than $10,000.00, Buyer shall be obligated to otherwise perform hereinunder with no adjustment to the Purchase Price, reduction or abatement, and Seller shall assign Seller's right, title and interest in and to all insurance proceeds pro-rata in relation to the Entire Property, subject to rights of any Tenant of the Entire Property.
(b) If, prior to closing, the Property, or any part thereof, is taken by eminent domain, this Agreement shall become null and void, at Buyer's option. If Buyer elects to proceed and to consummate the purchase despite said taking, there shall be no reduction in, or abatement of, the purchase price, and Seller shall assign to Buyer the Seller's right, title, and interest in and to any award made, or to be made, in the condemnation proceeding pro-rata in relation to the Entire Property, subject to rights of any Tenant of the Entire Property. In the event that this Agreement is terminated by Buyer as provided above in Subparagraph 16a or 16b, the First Payment shall be immediately returned to Buyer (after execution by Buyer of such documents reasonably requested by Seller to evidence the termination hereof).
Casualty Damage 18.1 Tenant shall give immediate notice (by telephone, confirmed in writing) to Landlord of any damage caused to the Premises by fire or other casualty, and if Landlord does not elect to terminate this Lease as provided in Section 18.2, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Building and/or the Premises, as the case may be, but Landlord shall not be obligated to expend for such rebuilding and repair any amount in excess of the amount of the insurance proceeds actually recovered by Landlord and made available by any Superior Lessor or Superior Mortgagee as a result of such loss.
18.2 If the Building or the Premises shall be destroyed or substantially damaged by a casualty not covered by Landlord’s insurance, or if 25% or more of the Premises is damaged or rendered untenantable by a casualty covered by Landlord’s insurance, or if the Premises are not affected but 25% of the Building or such portion of the Common Facilities as shall render the Premises or the Building untenantable is damaged or rendered untenantable, then in any such event Landlord may elect either to terminate this Lease or to proceed to rebuild and repair the Premises or that portion of the Building so damaged. Landlord shall give written notice to Tenant of such election within 90 days after the occurrence of such casualty, or within 30 days after the adjustment of the insurance settlement, whichever is later. In the event that such notice of termination shall be given, this Lease shall terminate as of the date provided in such notice of termination (whether or not the Term shall have commenced) with the same effect as if that date were the Expiration Date, without prejudice, however, to Landlord’s rights and remedies against Tenant under the terms of this Lease. If at any time prior to Landlord giving the aforesaid notice of termination or commencing the repair pursuant to Section 18.1, there shall be a Successor Landlord, such Successor Landlord shall have a further period of 60 days from the date of so taking possession to terminate this Lease by notice to Tenant and in the event that such a notice of termination shall be given, this Lease shall terminate as of the date provided in such notice of termination (whether or not the Term shall have been commenced) if Tenant is not occupying any portion of the Premises or otherwise as of the date provided in such notice, with the same effect as if that date were the Expiration Date, without prejudice, however, to Landlord’s rights against Tenant under the terms of this Lease.
18.3 Subject to the provisions of Section 18.1, Landlord’s obligation to rebuild and repair under this Article XVIII shall in any event be limited to restoring Landlord’s Work, as described in the Work Letter, to substantially the condition in which the same existed prior to the casualty, and to proceed, at the sole cost and expense of Tenant, to rebuild, repair and restore Tenant’s Work and any additional Improvements made by Tenant during the Term, all to substantially the condition existing prior to such casualty.
18.4 During the period from the occurrence of the casualty until Landlord’s repairs are completed, the Basic Rent payable pursuant to Article V and Additional Rent payable pursuant to Articles VI and VII shall be abated in that proportion which the Premises area rendered untenantable bears to the entire Premises area; provided, however, there shall be no abatement of any other charges or items of Additional Rent provided for herein to be paid by Tenant; and further provided, however, that should Tenant or anyone claiming through or under Tenant occupy a portion of the Premises during the period the repair work is taking place and prior to the date the Premises are no longer untenantable, the Rent allocable to such reoccupied portion, based upon the proportion which the reoccupied portion of the Premises bears to the total area of the Premises, shall be payable by Tenant from the date of such occupancy.
18.5 Landlord shall not the liable for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting in any way from any such damage by fire or other casualty or the repair thereof.
18.6 Notwithstanding any of the foregoing provisions of this Article, if, by reason of any negligence or willful act on the part of Tenant or any of its employees, agents, licensees, invitees or contractors, either (a) Landlord or the Superior Lessor or the Superior Mortgagee shall be unable to collect all of the insurance proceeds (including rent insurance proceeds) applicable to damage or destruction of the Premises or the Building or the Project by fire or other casualty or (b) the Premises or the Building or the Project shall be damaged or destroyed or rendered completely or partially untenantable on account of fire or other casualty then, without prejudice to any other remedy which may be available against Tenant, the abatement of rent provided for in Section 18.4 shall not be effective to the extent of the uncollected insurance proceeds.
Eminent Domain With respect to eminent domain:
A) Condemnation of Demised Premises. If the whole or any substantial part of the Demised Premises shall be taken or acquired by any public or quasi-public authority under the power or threat of eminent domain, for other than a temporary period, the Lease Term shall cease as of the day possession shall be taken by such public or quasi-public authority, and Tenant shall pay Rent up to that date with an appropriate refund by Landlord of any rent which may have been paid in advance for any period subsequent to the date possession is taken. In the event that during the term of this Agreement the Demised Premises, or any part thereof, or more than __________% of the Real Property or of the Common Area is taken by condemnation or right of eminent domain, or by private purchase in lieu thereof, this Agreement and the term hereby granted shall be terminable at Landlord’s sole option and if Landlord so terminates then this Agreement shall expire on the date when possession shall be taken by the condemnor and the Base Rent herein reserved shall be apportioned and paid in full to that date and all prepaid Base Rent shall forthwith be repaid by Landlord to Tenant. In the event Landlord does not elect to cancel or terminate this Agreement as provided above, then Landlord shall rebuild and restore the Demised Premises as nearly as possible to their condition immediately prior to any such taking and this Agreement shall continue in full force and effect except that, during such restoration, the Base Rent payable pursuant to the terms of this Agreement shall be equitably apportioned in the proportion that the square footage of the part of the Demised Premises so taken bears to the total square footage of the Demised Premises immediately prior to such taking; provided, however, in no event shall there be any abatement of the payment of any Operating Costs, provided further, however, the Landlord’s obligations to restore or rebuild shall be limited to an amount which does not exceed the proceeds obtained from such taking (less expenses incurred in collecting the same). Notwithstanding the foregoing, in the event the net condemnation award received by Landlord is insufficient to restore or rebuild the structural portions of the Demised Premises the Landlord shall have the option within __________ days after Landlord’s receipt of the net condemnation, to cancel and terminate this Agreement, and Tenant shall be limited to consequential damages only.
Insurance; Damage to or Destruction of Collateral (a) The Credit Parties shall, at their sole cost and expense, maintain the policies of insurance described on Disclosure Schedule 3.18 as in effect on the date hereof or otherwise in form and amounts and with deductibles as is customary for similarly situated businesses and with insurers reasonably acceptable to Agent. Agent and the Lenders confirm that the form, amounts and insurers described on Disclosure Schedule 3.18 are acceptable as of the Closing Date, and shall continue to be acceptable to Agent until not less than 30 days' prior written notice by Agent to Borrower to the contrary. Such policies of insurance (or the loss payable and additional insured endorsements delivered to Agent) shall contain provisions pursuant to which the insurer agrees to provide 30 days prior written notice to Agent in the event of any non-renewal, cancellation or amendment of any such insurance policy. If any Credit Party at any time or times hereafter shall fail to obtain or maintain any of the policies of insurance required above, or to pay all premiums relating thereto, Agent may at any time or times thereafter obtain and maintain such policies of insurance and pay such premiums and take any other action with respect thereto that Agent deems advisable. Agent shall have no obligation to obtain insurance for any Credit Party or pay any premiums therefor. By doing so, Agent shall not be deemed to have waived any Default or Event of Default arising from any Credit Party's failure to maintain such insurance or pay any premiums therefor. All sums so disbursed, including reasonable attorneys' fees, court costs and other charges related thereto, shall be payable on demand by Borrower to Agent and shall be additional Obligations hereunder secured by the Collateral.
(b) Agent reserves the right at any time (but not to be exercised more than once per Fiscal Year) upon (i) any material change in any Credit Party's risk profile (including any change in the product mix maintained by any Credit Party or any laws affecting the potential liability of such Credit Party), as determined by Agent in its commercially reasonable judgment, and (ii) not less than 30 days' prior written notice to Borrower, to require additional forms and limits of insurance to, in Agent's commercially reasonable judgment, adequately protect both Agent's and Lender's interests in all or any portion of the Collateral and to ensure that each Credit Party is protected by insurance in amounts and with coverage customary for its industry. If reasonably requested by Agent, each Credit Party shall deliver to Agent from time to time a report of a reputable insurance broker, reasonably satisfactory to Agent, with respect to its insurance policies.
(c) Each Credit Party shall deliver to Agent, in form and substance reasonably satisfactory to Agent, endorsements to (i) all "All Risk" and business interruption insurance naming Agent, on behalf of itself and Lenders, as lender loss payee or mortgagee (as the case may be), and (ii) all general liability and other liability policies naming Agent, on behalf of itself and Lenders, as additional insured. Each Credit Party irrevocably makes, constitutes and appoints Agent (and all officers, employees or agents designated by Agent), so long as any Event of Default has occurred and is continuing or the anticipated insurance proceeds exceed $1,000,000, as such Credit Party's true and lawful agent and attorney-in-fact for the purpose of making, settling and adjusting claims under such "All Risk" policies of insurance, endorsing the name of such Credit Party on any check or other item of payment for the proceeds of such "All Risk" policies of insurance and for making all determinations and decisions with respect to such "All Risk" policies of insurance. Agent shall have no duty to exercise any rights or powers granted to it pursuant to the foregoing power-of-attorney. Borrower shall promptly notify Agent of any loss, damage, or destruction to the Collateral in
(i) Borrower shall request a Revolving Credit Advance be made to Borrower in the amount requested to be released; (ii) so long as the conditions set forth in Section 2.2 have been met, Lenders shall make such Revolving Credit Advance; and (iii) in the case of insurance proceeds applied against the Revolving Loan, the Reserve established with respect to such insurance proceeds shall be reduced by the amount of such Revolving Credit Advance. To the extent not used to replace, repair, restore or rebuild the Collateral, such insurance proceeds shall be applied in accordance with Section 1.3(c).
Condemnation/Eminent Domain In the event that the Premises or any part thereof, or the whole or any part of the Building, shall be taken or appropriated by eminent domain or shall be condemned for any public or quasi-public use, or (by virtue of any such taking, appropriation or condemnation) shall suffer any damage (direct, indirect or consequential) for which Landlord or Tenant shall be entitled to compensation, then (and in any such event) this Lease and the Term hereof may be terminated at the election of Landlord by a notice in writing of its election so to terminate which shall be given by Landlord to Tenant within sixty (60) days following the date on which Landlord shall have received notice of such taking, appropriation or condemnation. In the event that a material part of the Premises or the means of access thereto shall be so taken, appropriated or condemned, and in either case, the remainder of the Premises or the mode of access thereto is, in Tenant’s reasonable judgment, unsuitable for the operation of Tenant’s business in the Premises, then (and in any such event) this Lease and the Term hereof may be terminated at the election of Tenant by a notice in writing of its election so to terminate which shall be given by Tenant to Landlord within sixty (60) days following the date on which Tenant shall have received notice of such taking, appropriation or condemnation. Upon the giving of any such notice of termination (either by Landlord or Tenant) this Lease and the Term hereof shall terminate on or retroactively as of the date on which Tenant shall be required to vacate any part of the Premises or shall be deprived of a substantial part of the means of access thereto, provided, however, that Landlord may in Landlord’s notice elect to terminate this Lease and the Term hereof retroactively as of the date on which such taking, appropriation or condemnation became legally effective. In the event of any such termination, this Lease and the Term hereof shall expire as of such effective termination date as though that were the Expiration Date as stated in Exhibit 1, and the Yearly Rent (together with Operating Costs Excess and Tax Excess) shall be apportioned as of such date. If neither party (having the right so to do) elects to terminate Landlord will, with reasonable diligence and at Landlord’s expense, restore the remainder of the Premises, or the remainder of the means of access, as nearly as practicably may be to the same condition as obtained prior to such taking, appropriation or condemnation in which event (i) the Total Rentable Area shall be equitably adjusted, (ii) a just proportion of the Yearly Rent, according to the nature and extent of the taking, appropriation or condemnation and the resulting permanent injury to the Premises and the means of access thereto, shall be permanently abated, and (iii) a just proportion of the remainder of the Yearly Rent, according to the nature and extent of the taking, appropriation or condemnation and the resultant injury sustained by the Premises and the means of access thereto, shall be abated until what remains of the Premises and the means of access thereto shall have been restored as fully as may be for permanent use and occupation by Tenant hereunder. Except for any award specifically reimbursing Tenant for moving or relocation expenses or for Tenant’s personal property, or for the unamortized value of any leasehold improvements paid for by Tenant (in excess of any Landlord contribution), there are expressly reserved to Landlord all rights to compensation and damages created, accrued or accruing by reason of any such taking, appropriation or condemnation, in implementation and in confirmation of which Tenant does hereby acknowledge that Landlord shall be entitled to receive all such compensation and damages, grant to Landlord all and whatever rights (if any) Tenant may have to such compensation and damages, and agree to execute and deliver all and whatever further instruments of assignment as Landlord may from time to time reasonably request. In the event of any taking of the Premises or any part thereof for temporary (i.e., not in excess of one (1) year) use, (i) this Lease shall be and remain unaffected thereby, and (ii) Tenant shall be entitled to receive for itself any award made to the extent allocable to the Premises in respect of such taking on account of such use, provided, that if any taking is for a period extending beyond the Term of this Lease, such award shall be apportioned between Landlord and Tenant as of the Expiration Date or earlier termination of this Lease.
EMINENT DOMAIN/CONDEMNATION 7.1 Lessor to notify Lessee 7.2 Whole taking, rents prorated 7.3 Taking
DAMAGE BY CASUALTY If during the Term or previous thereto, the Premises shall be destroyed or so damaged by fire or another casualty as to become un-leasable, then, at the option of the Lessor, this Agreement shall terminate from the date of such damage or destruction. The Lessor shall exercise this option to so terminate this Agreement by notice in writing delivered to the Lessee within [#] days after such casualty. Upon such notice, the Lessee shall immediately surrender said Premises and all interest therein to the Lessor, and the Lessee shall pay Rent up until the date of casualty. If the Lessor does not elect to terminate this Agreement, this Agreement shall continue in full force and effect, and the Lessor shall expeditiously repair the Premises, placing the same in as good a condition as they were at the time of the damage or destruction. Rent shall be prorated, taking into account the amount of time the Lessee is unable to occupy the Premises. If the Premises are slightly damaged by fire or another casualty but are still leasable, the Lessor shall expeditiously repair the same with no rent proration. The Lessee may not make a claim for compensation because of any inconvenience or loss of business arising from the necessity of repairing any portion of the building or the Premises.
Damage, Destruction and Condemnation (a) Seller will bear the risk of loss for any damage, destruction, or condemnation that may occur prior to Closing. If any portion of the Property is damaged or destroyed prior to Closing, Purchaser may elect to terminate this Agreement, unless prior to Closing all that damage has been repaired and the Improvements restored or replaced to their condition prior to the damage. If any material portion of the Property is condemned or taken prior to Closing, Purchaser may elect to terminate this Agreement.
(b) Purchaser's election under this Section with respect to any condemnation or taking will be exercised by written notice to Seller within twenty (20) days after written notice from Seller of the condemnation or taking. Purchaser's election under this Section with respect to any damage or destruction not repaired prior to Closing will be exercised by written notice to seller within twenty (20) days of the later to occur of:
(i) written notice from Seller of the damage or destruction and Seller's inability to repair and restore prior to Closing; or
(ii) written notice from Seller's insurance carrier regarding the estimated cost of repair, replacement, or reconstruction and the portion of the repair, replacement, or reconstruction for which insurance proceeds will be made available. The Closing Date will be extended as necessary to give Purchaser time to make the election.
(c) If Purchaser elects to terminate this Agreement under this Section, neither party will have any further rights, duties, or obligations. If Purchaser does not elect to terminate this Agreement, this Agreement will remain in full force and the purchase contemplated in this Agreement, less any interest taken by condemnation, will be effected, and at the Closing, Seller will pay the Purchaser the amount of any deductible under Seller's insurance policy and will assign, transfer, and set over to Purchaser all of Seller's right, title, and interest to any condemnation awards or insurance proceeds that have been or that may later be made for the taking or destruction.
FIRE AND CASUALTY DAMAGE If the Premises are so injured or damaged by fire or other cause as to be uninhabitable for more than 120 days, then the Tenant may terminate this Lease upon written notice to the Landlord. A total destruction of the Premises shall automatically terminate this Lease. If this Lease is not so terminated, then the Landlord shall diligently restore the damaged Premises at its sole cost and expense as soon as is reasonably practical, but in all events less than 120 days from the date of such damage or casualty, and if the Landlord fails to do so, then the Tenant may terminate this Lease by delivering written notice to the Landlord. The Tenant will be entitled to an abatement of Rent for the period of time that all or any portion of the Premises are not useable for the Tenant’s business due to such casualty based on the portion of the Premises that the Tenant is unable to use. If any such damage occurs before closing but after the Tenant has exercised its Option to Purchase, then the Tenant may, within 30 days after the date of such damage, by delivery of written notice to the Landlord, cancel and rescind the Tenant’s exercise of the Option to Purchase. Each of the Landlord and the Tenant hereby releases the other (and the other’s employees, officers, shareholders, directors, and members) from any and all liability or responsibility to the other or any claiming through or under them by way of subrogation or otherwise for any loss or damage to property caused by fire or any other perils which may be insurable in policies of insurance covering such property and required to be carried within this Lease, even if such loss or damage shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible. Each party shall cause its insurance policies to contain a clause or endorsement to the effect that such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder and to the effect that such insurer waives its rights of subrogation as to such released or waived claim.
Damage, Destruction or Condemnation (a) In the event of damage to or destruction of any portion of the Project resulting from fire or other casualty during the Term, or in the event any portion of the District is condemned or taken for any public or quasi-public use or title thereto is found to be deficient during the Term, the net proceeds of any insurance relating to such damage or destruction, the net proceeds of such condemnation or taking or the net proceeds of any realization on title insurance shall be paid into, and used in accordance with a construction escrow agreement reasonably satisfactory to the City and Developer ("Casualty Escrow").
(b) If, at any time during the Term, the Project or any part thereof shall be damaged or destroyed by a casualty (the "Damaged Facilities"), Developer, at its sole cost and expense, shall commence and thereafter proceed as promptly as possible to repair, restore and replace the Damaged Facilities as nearly as possible to their condition immediately prior to the casualty and shall be entitled to draw upon the Casualty Escrow for payment of said costs.
(c) If at any time during the Term, title to the whole or substantially all of the Project which has previously been conveyed to Developer shall be taken in condemnation proceedings or by right of eminent domain, Developer, at its sole discretion, may terminate this Agreement as of the date of such taking. For purposes of this Section 6.07(c), "substantially all of the District" shall be deemed to have been taken if the City and Developer, each acting reasonably and in good faith, determine that the untaken portion of the District, including the parking improvements, cannot be practically and economically used by Developer for the purposes and at the times contemplated by this Agreement.
(d) In the event of condemnation of less than the whole or substantially all of the District which has previously been conveyed to Developer during the Term, Developer, at its sole cost and expense, shall commence and thereafter proceed as promptly as possible to repair, restore and replace the remaining part of the Project, as nearly as possible, to its former condition, and shall be entitled to draw upon the Casualty Escrow for payment of said costs.
(e) Nothing in this section will require the Developer to expend funds in excess of the Casualty Escrow for the repair, restoration and/or replacement of the Damaged Facilities.
