Damage or Destruction Condemnation. (a) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is required to be insured against by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 3 contracts

Samples: Space/Use Permit, Space/Use Permit, Space/Use Permit for Non Exclusive Foreign Currency Exchange Concession

Damage or Destruction Condemnation. ~~(a)~~ In the event that, after the ~~Assigned Space~~ date hereof but prior to the Closing Date, either any portion of the Property is taken pursuant to eminent domain proceedings or any of the improvements ~~thereon~~ on the Property are damaged or destroyed by any ~~casualty which is required~~ casualty, Seller shall have no obligation to ~~be insured against by Permittee pursuant to this Permit, then Permittee~~ repair or replace any such damage or destruction. Seller shall, ~~in accordance with~~ upon consummation of the transaction herein provided, assign to Buyer all ~~applicable requirements~~ claims of ~~this Permit~~ Seller respecting any condemnation or casualty insurance coverage, as applicable, and all condemnation proceeds or proceeds from any such casualty insurance received by Seller on account of any casualty (~~including without limitation Section 1(2) above), repair such~~ the damage ~~(and replace any Trade Equipment damaged~~ from which shall not have been repaired by ~~such casualty~~Seller prior to the Closing Date) as ~~soon~~ applicable, and Seller shall give Buyer a credit equal to the deductible portion of Seller's insurance policy attributable to the Property. In the event (i) the condemnation award shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely affect the Property, as ~~reasonable possible~~reasonably determined by Buyer, or (ii) the cost of repair of damage to the Property on account of a casualty, shall equal or exceed One Hundred Thousand Dollars ($100,000) or otherwise materially and adversely interfere with the operations of the Property, as reasonably determined by Buyer, Buyer may, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, ~~either (i) repair such damage as soon as reasonably possible at Port’s expense~~terminate this Agreement by notice to Seller, given on or before the Closing Date, in which event this ~~Permit~~ Agreement shall ~~continue in full force and effect~~terminate, ~~and there shall be no abatement in~~ the ~~Rent payable by Permittee to Port under Paragraph E of this Permit~~Deposit, or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance together with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, howeverearned thereon, shall be ~~entitled~~ returned to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned SpaceBuyer, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other each party shall be ~~effective in any arbitration proceeding arising out~~ relieved of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h)all further obligations hereunder. (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 3 contracts

Samples: Purchase and Sale Agreement (Arden Realty Inc), Purchase and Sale Agreement (Arden Realty Inc), Purchase and Sale Agreement (Arden Realty Inc)

Damage or Destruction Condemnation. (a) In the event of partial damage or destruction of the ~~Assigned Space or~~ Property of a type which can, under the ~~improvements thereon are damaged by any casualty which is required~~ circumstances, be expected in the reasonable judgment of Seller and Buyer to be ~~insured against~~ restored or repaired at a cost of $500,000 or less, then, this Contract shall be consummated on the Closing Date at the Purchase Price, and unless such damage has been repaired by ~~Permittee pursuant~~ Seller prior to ~~this Permit~~Closing, ~~then Permittee shall, in accordance with all~~ Seller shall assign to Buyer the casualty insurance proceeds payable to Seller and business interruption proceeds applicable ~~requirements of this Permit~~ to the period on and after the Closing Date payable to Seller (~~including without limitation Section 1(2) above~~but only to the extent such business interruption proceeds are assignable to Buyer), ~~repair such damage (~~less any amounts expended by Seller for partial restoration and ~~replace~~ with a credit to Buyer for the amount of any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permitdeductible and/or uninsured damage. (b) In the event that the ~~Assigned Space or the improvements thereon are~~ Property shall have been damaged by ~~any casualty~~ fire or casualty, the cost of repair or restoration of which ~~is not required to be insured against by Permittee pursuant to~~ would, in the ~~provisions~~ reasonable judgment of ~~this Permit~~Seller and Buyer, exceed the sum of $500,000, then ~~Port may~~unless Seller has previously repaired or restored the Property to its former condition, at ~~Port~~Buyer’s ~~option~~election, Seller shall either (i) ~~repair~~ pay over or assign to Buyer, on delivery of the Deed all casualty insurance proceeds payable to Seller and business interruption proceeds applicable to the period on and after the Closing Date payable to Seller (but only to the extent such ~~damage as soon as~~ business interruption proceeds are assignable to Buyer), less any amounts reasonably ~~possible at Port’s expense~~expended by Seller for partial restoration, ~~in which event this Permit shall continue in full force and effect, and there shall be no abatement in~~ with a credit to Buyer for the ~~Rent payable by Permittee to Port under Paragraph E~~ amount of ~~this Permit~~any deductible and/or uninsured damage, or (ii) ~~give written notice~~ direct Escrow Agent to ~~Permittee within sixty~~ return the Deposit to Buyer in which case, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Contract shall terminate and be without further recourse or remedy to the parties hereto. Notwithstanding the foregoing, if Buyer elects to proceed with the transaction under clause (60i) ~~days after the date~~ of ~~occurrence of such damage of Port’s intention to terminate~~ this ~~Permit~~paragraph (b), in ~~which~~ no event ~~such termination~~ shall Seller be ~~effective as~~ obligated to incur any out of ~~the date of the occurrence of such damage; provided~~pocket cost above $500,000 (whether attributable to a casualty being uninsured, ~~however, that notwithstanding the foregoing: (x) If such damage was caused by the act~~ underinsured or ~~omission of Permittee or~~ to any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) abovedeductible), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. (c) If all or part of the ~~Assigned Space~~ Property is ~~damaged~~ taken by condemnation, eminent domain or ~~destroyed~~ by ~~casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction~~agreement in lieu thereof, or ~~for~~ any ~~required repair~~ proceeding to acquire, take or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole condemn all or part of the ~~Assigned Space should be taken by any public~~ Property is threatened or ~~quasi-public authority under the power or threat of eminent domain~~commenced, ~~then,~~ Buyer may either terminate this Contract (in ~~such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on~~ which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event ~~of such a taking, the Port~~ Buyer shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as a return of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space Deposit and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permitteeaccrued interest thereon, if any, ~~occasioned by reason of such taking. The balance of any compensation and damages remaining after~~ and, except for the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c)Surviving Obligations, ~~Port shall send to Permittee an amendment to this Permit showing the deletion of that portion~~ all other obligations of the ~~Assigned Space that was the subject of this taking,~~ parties hereto shall cease and this ~~Permit~~ Contract shall terminate and be ~~deemed amended thereby. (d~~without further recourse or remedy to the parties hereto) ~~If a taking shall occur which does not result in a termination of this Permit as provided in~~ or close title to the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed Property in accordance with the ~~last sentence of Section 37(2)(a) above. Permittee~~terms hereof, ~~however, shall be entitled to an equitable~~ without reduction in the ~~monthly Rent. (e) No taking~~ Purchase Price, together with an assignment of ~~Permittee’s leasehold estate in the Assigned Space~~ Seller's rights to any award paid or ~~any part thereof without a taking~~ payable by or on behalf of the ~~fee shall terminate or give Permittee~~ condemning authority. If Seller has received payments from the ~~right~~ condemning authority and if Buyer elects to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect close title to the ~~portion of the Assigned Space affected by such taking~~Property, ~~(2) the Port~~ Seller shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on credit the amount of ~~such reduction,~~ said payment against the ~~same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with~~ Purchase Price at the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h)Closing. (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 2 contracts

Samples: Purchase and Sale Contract (KBS Legacy Partners Apartment REIT, Inc.), Purchase and Sale Contract (KBS Legacy Partners Apartment REIT, Inc.)

Damage or Destruction Condemnation. (a) In The risk of loss, damage or destruction to the ~~event the Assigned Space~~ Property by fire or other casualty or the ~~improvements thereon are damaged~~ taking of all or part of the Property by ~~any casualty which~~ condemnation or eminent domain or by an agreement in lieu thereof until the Closing is ~~required~~ assumed by Seller, except to ~~be insured against by Permittee pursuant to this Permit, then Permittee shall,~~ the extent otherwise provided in ~~accordance with all applicable requirements~~ paragraph 6(d) of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this PermitContract. (b) In the event that the ~~Assigned Space~~ Property shall have been damaged or destroyed, the ~~improvements thereon are damaged by any casualty~~ cost of repair or restoration of which ~~is not required to be insured against by Permittee pursuant to~~ would, in Buyer's and Seller's reasonable determination, exceed the ~~provisions~~ sum of ~~this Permit~~One Hundred Thousand and 00/100 Dollars ($100,000.00) (the "Casualty Amount"), then ~~Port may~~at Buyer's election, ~~at Port’s option~~Seller shall, unless Seller has previously repaired or restored the Property to its former condition, either (i) ~~repair such damage as soon as~~ pay over or assign to Buyer, on delivery of the Deeds all amounts recovered or recoverable on account of any insurance, together with amounts equal to any deductibles thereunder, less any amounts reasonably ~~possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable~~ expended by ~~Permittee to Port under Paragraph E of this Permit~~Seller for partial restoration, or (ii) ~~give written notice~~ direct Escrow Agent to ~~Permittee within sixty (60) days after~~ return the ~~date~~ Deposit to Buyer in which case all other obligations of ~~occurrence~~ the parties hereto shall cease and this Contract shall be void and without recourse to the parties hereto, except such liabilities and obligations as expressly survive termination of ~~such damage~~ this Contract. If the Property, or any part thereof, suffers any damage, the cost of ~~Port’s intention to terminate this Permit~~repair or restoration of which would, in ~~which event such termination shall~~ Buyer's and Seller's reasonable estimation, be ~~effective as of~~ less than the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of PermitteeCasualty Amount, then ~~Permittee shall~~Buyer shall consummate the Closing, without reduction in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effectthe Purchase Price, and ~~there shall be no abatement in~~ accept the ~~Rent payable~~ assignment of all amounts recovered or recoverable on account of any insurance, together with the amount of any deductibles thereunder, less any amounts reasonably expended by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to PortSeller for partial restoration. (c) If all or any portion of the ~~Assigned Space~~ Property is ~~damaged~~ taken by condemnation, eminent domain or ~~destroyed~~ by ~~casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction~~agreement in lieu thereof, or ~~for~~ any ~~required repair~~ proceeding to acquire, take or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole condemn all or part of the ~~Assigned Space should be taken by any public~~ Property is threatened or ~~quasi-public authority under the power or threat of eminent domain~~commenced, ~~then,~~ Buyer may either terminate this Contract (in ~~such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on~~ which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event ~~of such a taking, the Port~~ Buyer shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as a return of the ~~date of valuation of~~ Deposit) or purchase the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee Property in accordance with ~~all applicable requirements~~ the terms hereof, without reduction in the Purchase Price, together with an assignment of ~~this Permit (including without limitation Section 1(2) above) solely~~ Seller's right to ~~reconstruct and restore the portion~~ any award paid or payable by or on behalf of the ~~Assigned Space not so taken~~ condemning authority. If Seller has received payments from the condemning authority and if Buyer elects to ~~an architecturally complete unit suitable for use by Permittee; and~~ purchase the ~~monthly Rent payable by Permittee hereunder~~ Property, Seller shall ~~be equitably reduced during~~ credit the ~~time Permittee does not have full use~~ amount of said payments against the ~~Assigned Space as a result of such taking to account for~~ Purchase Price at the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended therebyClosing. (d) ~~If a taking~~ Seller shall ~~occur which does not result in a termination~~ immediately notify Buyer of ~~this Permit as provided in~~ any damage or destruction to the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space Property or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed notice received by it ~~hereunder with respect to, but only with respect to~~ or information or awareness acquired by it regarding the ~~portion~~ threatening of ~~the Assigned Space affected by such taking, (2) the Port shall look solely to the taker~~ or commencement of ~~such leasehold interest, including the successors in interest thereto and any party then in possession of all~~ condemnation or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permitsimilar proceedings. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 2 contracts

Samples: Purchase and Sale Contract (Murray Income Properties Ii LTD), Purchase and Sale Contract (Murray Income Properties I LTD)

Damage or Destruction Condemnation. (a) In If the ~~event the Assigned Space or the improvements thereon are~~ Leased Premises shall be partially damaged by any casualty covered under Landlord’s insurance policy, Landlord shall repair the same to the condition which existed as of the date of this Lease, and the Base Rent and all Additional Rent and other charges shall be abated proportionately as to that portion of the Leased Premises rendered untenantable; provided, however, that in light of the short term nature of this Lease, Landlord may either elect to repair the damage to the condition existing at the time of execution of this Lease (other than damage to Tenant’s fixtures, furniture, equipment, other personal property and any other portions of the Leased Premises or any property located therein for which Tenant is required to or does insure or as to which Tenant shall be ~~insured against~~ responsible to repair or restore as provided below) or may cancel this Lease by ~~Permittee pursuant~~ notice of cancellation given within sixty (60) days after such event and thereupon this Lease shall expire, and Tenant shall vacate and surrender the Leased Premises to ~~this Permit, then Permittee~~ Landlord. Upon the occurrence of any casualty which shall, in ~~accordance with all applicable requirements~~ the written opinion of an architect selected by Landlord, require more than ninety (90) days from the date of the casualty for Landlord to repair and restore the Leased Premises, Tenant may cancel this Lease by notice of cancellation given within thirty (30) days after such event and thereupon this Lease shall expire. Tenant’s liability for Rent upon the termination of this ~~Permit~~ Lease shall cease as of the later of (~~including without limitation Section 1(2~~y) ~~above)~~the day following the event or damages or (z) the date upon which Tenant ceased to do business at the Leased Premises. In the event Landlord elects to repair the damage, ~~repair~~ any abatement of Rent shall end upon the date that Landlord completes Landlord’s obligations to restore the Leased Premises. (b) If the whole of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, then the Term shall cease and terminate as of the date of title vesting in the condemnor in such ~~damage~~ proceeding and all Rent shall be paid up to that date and Tenant shall have no claim against Landlord for the value of any unexpired Lease Term of this Lease. (c) If any part of the Leased Premises or of the Property shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, and ~~replace~~ in the event that such partial taking or condemnation shall render the Leased Premises and/or the Property unsuitable for the business of Tenant, then the Lease Term shall cease and terminate as of the date of title vesting in the condemnor in such proceeding, and Tenant shall have no claim against Landlord for the value of any ~~Trade Equipment damaged by such casualty) as soon as reasonable possible~~unexpired Lease Term. In the event of a partial taking or condemnation which is not extensive enough to render the Leased Premises unsuitable for the business of Tenant, ~~at its own cost~~then Landlord shall promptly restore the Leased Premises to the condition set forth in Exhibit A less the portion lost in the taking, and this ~~Permit~~ Lease shall continue in full force and effect~~, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is~~ . Landlord shall not be required to ~~be insured against by Permittee pursuant to~~ expend in such restoration more than the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the ~~insurance against casualty that Permittee was required to maintain pursuant to this Permit~~ award which is reserved for such purpose. The Base Rent shall be ~~paid to Port. (c) If~~ reduced in the ~~Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason~~ proportion that the area of ~~any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive~~ the ~~provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate~~ Leased Premises taken bears to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums entire area contained in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended therebyLeased Premises. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any condemnation or taking ~~of any portion of the Assigned Space~~as hereinbefore provided, ~~Permittee~~ whether whole or partial, Tenant shall not be entitled to any part of the award, as damages or otherwise, for such condemnation and Landlord is to receive the full amount of such award. Tenant hereby expressly waives any right or claim to any part thereof and assigns to Landlord any share of such an award as may be granted to it. Although all damages in the event of any condemnation are to belong to Landlord whether such damages are awarded as compensation for diminution in value of the leasehold or to the fee of the Leased Premises, and although Tenant hereby expressly waives all claims against Landlord, Tenant shall have the right to claim and recover from the condemning authority, not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant’s own right on account of any and all damages ~~arising from such taking~~ to Tenant’s business by reason of the condemnation and ~~payable~~ for or on account of ~~the Permittee~~any cost or loss to which Tenant might be put in removing Tenant’s ~~Trade Equipment located on the portion of the Assigned Space so taken~~merchandise, ~~except for those trade fixtures~~ furniture, fixtures, leasehold improvements and ~~equipment that pursuant to this Permit are to remain with the Assigned Space on surrender~~equipment. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Agreement of Sale (Lenox Group Inc)

Damage or Destruction Condemnation. (a) Until the Closing, the risk of loss or damage to the Property shall be borne by the Seller. In the event the ~~Assigned Space~~ Property is damaged so that the Property cannot be conveyed in substantially the same condition as it was at the time of this Agreement, Purchaser shall have the option of either (i) terminating this Agreement by giving written notice thereof to Seller, whereupon the Binder Deposit shall be refunded to the Purchaser and the parties shall have no further rights, obligations or liabilities to each other hereunder (except for Purchaser’s Indemnification Obligations which shall survive such termination), or (ii) requiring Seller to convey the ~~improvements thereon are damaged by any casualty which is required~~ Property to ~~be insured against by Permittee~~ Purchaser pursuant to ~~this Permit~~the terms and provisions hereof and to transfer and assign to Purchaser at Closing all of Seller’s right, ~~then Permittee shall,~~ title and interest in ~~accordance with all applicable requirements~~ and to any insurance proceeds which may be available by reason of ~~this Permit (including without limitation Section 1(2) above), repair~~ such damage (or casualty. Seller represents and ~~replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at~~ warrants to Purchaser that Seller’s deductible under its ~~own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit~~property casualty insurance policy is $75,000. (b) In the event the ~~Assigned Space~~ Property, or any material portion or portions thereof which are necessary for the ~~improvements thereon are damaged~~ Property’s use as of the Effective Date, shall be taken or condemned by any ~~casualty which is not required to be insured against by Permittee pursuant~~ governmental authority or other entity prior to the ~~provisions~~ date of ~~this Permit~~Closing, ~~then Port may~~or in the event Purchaser receives notice of a proposed taking prior to the date of Closing, ~~at Port’s option,~~ Purchaser shall have the option of either (i) ~~repair such damage as soon as reasonably possible at Port’s expense~~terminating this Agreement by giving written notice thereof to Seller, ~~in which event this Permit shall continue in full force and effect, and there~~ whereupon the Binder Deposit shall be refunded to the Purchaser and the parties shall have no ~~abatement in the Rent payable by Permittee~~ further rights, obligations or liabilities to ~~Port under Paragraph E of this Permit~~each other hereunder (except for Purchaser’s Indemnification Obligations which shall survive such termination), or (ii) ~~give written notice~~ requiring Seller to ~~Permittee within sixty (60) days after~~ convey the ~~date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as~~ remaining portion of the ~~date~~ Property to Purchaser pursuant to the terms and provisions hereof and to transfer and assign to Purchaser at Closing all of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the Seller’s right, ~~by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage,~~ title and interest in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any ~~compensation~~ award made or ~~damages for, on the account of, or arising out of such taking. For any period of time prior~~ to ~~termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall~~ be ~~equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising~~ made by reason of such ~~taking except~~ condemnation. Seller and Purchaser hereby further agree that ~~an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking)~~ Purchaser shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to ~~surrender this Permit, nor excuse the taker of such leasehold estate, including any successor~~ participate in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after all negotiations with any such ~~taking, but in such case, all~~ governmental authority relating to the Property or to the compensation ~~and damages payable~~ to be paid for ~~or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or~~ any portion ~~thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay~~ or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected portions thereof condemned by such ~~taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all~~ governmental authority or ~~such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the~~ other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permitentity. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Real Property Purchase Agreement (Krispy Kreme Doughnuts Inc)

Damage or Destruction Condemnation. ~~(a) In the event the Assigned Space or the improvements thereon are damaged by~~ Property Owners shall deliver to BPLP written notice of any casualty involving in excess of $50,000 to repair or any taking involving the Property promptly upon learning of such casualty or taking. If, prior to the Closing, either of the Properties (each a "DAMAGED PROPERTY") is damaged or destroyed by casualty such that the cost to repair and/or restore such damage and/or destruction (which ~~is required~~ cost, for purposes of this Section, shall be deemed to include reasonably anticipated post-Closing rental loss not covered by rental loss insurance through completion of such repair and/or restoration) would exceed Five Million Dollars ($5,000,000) with respect to any one of the Properties, or Seven Million Five Hundred Thousand Dollars ($7,500,000) in the aggregate with respect to both Properties, and the Damaged Property cannot be ~~insured against by Permittee pursuant~~ repaired and/or restored to ~~this Permit~~substantially the same condition as immediately prior to such casualty without termination, amendment or modification of the applicable Lease or other material agreement relating to the Damaged Property (any such event, a "MAJOR CASUALTY"), within twelve (12) months after the Closing Date, then ~~Permittee shall, in accordance~~ BPLP shall have the right to terminate its obligation to complete the transaction contemplated under this Agreement with ~~all applicable requirements~~ respect to such Damaged Property by delivery of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice thereof to ~~Permittee~~ Property Owners within ~~sixty~~ ten (6010) ~~days~~ Business Days after ~~the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date~~ BPLP's first learning of the occurrence of such ~~damage; provided~~casualty and Property Owners' good faith estimate of the cost of such repair and/or restoration, ~~however~~timing for completion of such repair and/or restoration and confirmation that no Leases or other material agreements will be terminated, ~~that notwithstanding the foregoing: (x)~~ amended or modified as a result of such casualty. If ~~such damage was caused by the act or omission of Permittee~~ all or any ~~principal, affiliate, contractor, employee, agent, licensee~~ part of the Property is damaged and/or destroyed by fire or ~~invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit~~ other casualty prior to the Closing but (~~including without limitation Section 1(2~~i) ~~above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in~~ the ~~Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage~~ event is not ~~covered by subsection~~ a Major Casualty or (~~b)(ii)(x~~ii) ~~above~~the event is a Major Casualty but BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement with respect to such Damaged Property (or the Agreement in its entirety, ~~and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60~~as applicable) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this ~~Permit~~ Section 4.5 as a result thereof, then the Closing Date shall ~~be paid~~ occur as scheduled with respect to ~~Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any~~ such Property notwithstanding such damage or destruction, and Property Owners' interest in all proceeds of insurance payable by reason of such casualty, including, without limitation, for rental loss to the extent allocable to the period after the Closing Date, shall be assigned to BPLP as of the Closing Date or ~~for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933~~credited to BPLP if previously received by Property Owners, and Property Owners shall be responsible for the amount of any ~~other statutes which relate to the termination of a Permit when leased property is destroyed~~ deductible under such insurance (and ~~agree that any~~ such ~~event~~ amount shall be ~~governed by~~ credited to BPLP at the ~~terms of this Permit. (a) If the whole~~ Closing). If, prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion of the ~~Assigned Space should be taken by any public~~ Property or ~~quasi-public authority under~~ either Property Owner enters into an agreement in lieu thereof, and the ~~power or threat~~ portion of ~~eminent domain, then, in such event,~~ the Property lost thereby would have a material adverse effect on the ~~earlier~~ operations of the ~~date title~~ Property (a "MAJOR CONDEMNATION," and the effected Property, a "CONDEMNED PROPERTY"), then BPLP shall have the option to terminate its obligation to complete the ~~Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space,~~ transaction contemplated under this ~~Permit shall terminate~~ Agreement with respect to ~~Port’s and Permittee’s future obligations hereunder~~such Condemned Property by delivery of written notice thereof to Property Owners within ten (10) Business Days after BPLP first learns of such commencement or entry. If, prior to the Closing Date, an Authority commences any eminent domain or condemnation proceeding to take any portion of the Property or either Property Owner enters into an agreement in lieu thereof but (i) such event does not constitute a Major Condemnation or (ii) the event is a Major Condemnation, but ~~said termination~~ BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement with respect to such Condemned Property pursuant to this Section 4.5 as a result thereof, then the Closing Date shall ~~not affect Port’s~~ occur as scheduled notwithstanding such proceeding or entry, and ~~Permittee’s rights to any compensation~~ Property Owners' interest in all awards or ~~damages for, on the account of, or~~ payments arising out of such ~~taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking~~ proceedings or ~~any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder~~ agreement shall be ~~equitably reduced. In the event of such a taking, the Port shall be entitled~~ assigned to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (BPLP as of the ~~date of valuation of the taking) shall be paid~~ Closing Date or credited to ~~Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated~~ BPLP if previously received by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future Property Owners. Property Owners' obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of under this Section ~~37(2), but which requires~~ shall survive the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended therebyClosing. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Contribution Agreement (Boston Properties Inc)

Damage or Destruction Condemnation. ~~(a) In the event the Assigned Space or the improvements thereon are damaged by~~ The Property Owners shall deliver to BPLP written notice of any casualty involving in excess of $50,000 to repair or any taking involving the Property promptly upon learning of such casualty or taking. If, prior to the Closing, any Property (each such Property, a "DAMAGED PROPERTY") is damaged or destroyed by casualty such that the cost to repair and/or restore such damage and/or destruction (which ~~is required~~ cost, for purposes of this Section, shall be deemed to include reasonably anticipated post-Closing rental loss not covered by rental loss insurance through completion of such repair and/or restoration) would exceed Five Million Dollars ($5,000,000) with respect to any individual Property, or Twenty-Five Million Dollars ($25,000,000) in the aggregate with respect to all Properties, and the Damaged Property cannot be ~~insured against by Permittee pursuant~~ repaired and/or restored to ~~this Permit~~substantially the same condition as immediately prior to such casualty, without termination, amendment or modification of any Leases or other material agreements relating to such Damaged Property, within twelve (12) months after the Closing Date (any such event, a "MAJOR CASUALTY"), then ~~Permittee shall,~~ BPLP shall have the right to terminate its obligation to complete the transaction contemplated under this Agreement in ~~accordance with all applicable requirements~~ its entirety by delivery of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant written notice thereof to the ~~provisions of this Permit, then Port may, at Port’s option, either~~ Property Owners within ten (i10) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days Business Days after ~~the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date~~ BPLP's first learning of the occurrence of such ~~damage; provided~~casualty and the Property Owner's good faith estimate of the cost of such repair and/or restoration, ~~however~~timing for completion of such repair and/or restoration and confirmation that no Leases or other material agreements will be terminated, ~~that notwithstanding the foregoing: (x)~~ amended or modified as a result of such casualty. If ~~such damage was caused by the act or omission of Permittee~~ all or any ~~principal, affiliate, contractor, employee, agent, licensee~~ part of the Property is damaged and/or destroyed by fire or ~~invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit~~ other casualty prior to the Closing but (~~including without limitation Section 1(2~~i) ~~above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in~~ the ~~Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage~~ event is not ~~covered by subsection~~ a Major Casualty or (~~b)(ii)(x~~ii) ~~above, and if such damage occurred during~~ the ~~last twelve months of~~ event is a Major Casualty but BPLP does not terminate its obligation to complete the ~~Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate~~ transaction contemplated under this ~~Permit as of the date of such damage,~~ Agreement in ~~which event all proceeds of the insurance against casualty that Permittee was required to maintain~~ its entirety pursuant to this ~~Permit~~ Section 4.6 as a result thereof, then the Closing Date shall ~~be paid~~ occur as scheduled with respect to ~~Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any~~ such Property notwithstanding such damage or destruction, and the Property Owner's interest in all proceeds of insurance payable by reason of such casualty, including, without limitation, for rental loss to the extent allocable to the period after the Closing Date, shall be assigned to BPLP as of the Closing Date or ~~for any required repair or restoration. Port and Permittee hereby waive~~ credited to BPLP if previously received by the ~~provisions of California Civil Code Sections 1932 and 1933~~Property Owner, and the Property Owner shall also be responsible for the amount of any ~~other statutes which relate to the termination of a Permit when leased property is destroyed~~ deductible under such insurance (and ~~agree that any~~ such ~~event~~ amount shall be ~~governed by~~ credited to BPLP at the ~~terms of this Permit. (a) If the whole~~ Closing). If, prior to Closing, an Authority commences any eminent domain or condemnation proceeding to take any portion of the ~~Assigned Space should be taken by any public~~ Property or ~~quasi-public authority under~~ the ~~power or threat~~ Property Owner enters into an agreement in lieu thereof, and the portion of ~~eminent domain~~the Property lost thereby would have a material adverse effect on the operations of the Property (a "MAJOR CONDEMNATION", and the effected Developed Property, a "CONDEMNED PROPERTY"), then, except as set forth below, BPLP shall have the option to terminate its obligation to complete the transaction contemplated under this Agreement in its entirety by delivery of written notice thereof to the Property Owners within ten (10) Business Days after BPLP first learns of such ~~event~~commencement or entry. If, on prior to the ~~earlier~~ Closing Date, an Authority commences any eminent domain or condemnation proceeding to take any portion of the ~~date title to the Assigned Space vests in such public or quasi-public authority,~~ Property or the ~~date on which said public~~ Property Owner enters into an agreement in lieu thereof but (i) such event does not constitute a Major Condemnation or ~~quasi-public agency takes possession of~~ (ii) the ~~Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder~~event is a Major Condemnation, but ~~said termination~~ BPLP does not terminate its obligation to complete the transaction contemplated under this Agreement in its entirety pursuant to this Section 4.6 as a result thereof, then the Closing Date shall ~~not affect Port’s~~ occur as scheduled notwithstanding such proceeding or entry, and ~~Permittee’s rights to any compensation~~ the Property Owner's interest in all awards or ~~damages for, on the account of, or~~ payments arising out of such ~~taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking~~ proceedings or ~~any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder~~ agreement shall be ~~equitably reduced. In the event of such a taking, the Port shall be entitled~~ assigned to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (BPLP as of the ~~date of valuation of the taking) shall be paid~~ Closing Date or credited to ~~Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated~~ BPLP if previously received by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future Property Owner. The Property Owner's obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of under this Section ~~37(2), but which requires~~ shall survive the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended therebyClosing. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Contribution and Conveyance Agreement (Boston Properties Inc)

Damage or Destruction Condemnation. (a) In If after the ~~event~~ expiration of the ~~Assigned Space or~~ Due Diligence Expiration Date, the ~~improvements thereon are~~ Improved Property shall have been damaged by ~~any~~ fire or other casualty ~~which is required~~ prior to ~~be insured against by Permittee pursuant~~ the Closing, such that Seller’s reasonable estimate of the cost to ~~this Permit~~repair the same exceeds ten percent (10%) of the Purchase Price (a “Material Casualty”), then ~~Permittee shall~~unless Seller has previously repaired or restored such Improved Property to its former condition prior to the Closing Date, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possiblethen, at ~~its own cost~~Buyer’s sole option, Seller shall either (i) pay over or assign to Buyer, on delivery of the Deed all physical damage proceeds of any insurance policies payable to Seller, less any amounts reasonably expended by Seller for partial restoration, with a credit to Buyer for the amount of any deductible, or (ii) direct Escrow Agent to return the Deposit and accrued interest thereon to Buyer in which case, except for the Surviving Obligations, all other obligations of the parties hereto shall cease and this ~~Permit~~ Agreement shall ~~continue in full force~~ terminate and ~~effect, with no abatement in~~ be without further recourse or remedy to the ~~Rent payable by Permittee to Port under Paragraph E of this Permit~~parties hereto. (b) In If after the ~~event~~ expiration of the ~~Assigned Space~~ Due Diligence Expiration Date, all or a material part of the ~~improvements thereon are damaged~~ Improved Property is taken by ~~any casualty which is not required to be insured against~~ condemnation, eminent domain or by ~~Permittee pursuant~~ agreement in lieu thereof prior to the ~~provisions~~ Closing such that Seller’s reasonable estimate of ~~this Permit~~the loss of value of the remaining applicable Improved Property exceeds an amount equal to ten percent (10%) of the Purchase Price (a “Material Taking”), ~~then Port~~ Buyer may, at ~~Port’s~~ Buyers’ sole option, either (i) ~~repair such damage as soon as reasonably possible at Port’s expense,~~ terminate this Agreement (in which event ~~this Permit shall continue in full force and effect, and there~~ Buyer shall be ~~no abatement in~~ entitled to a return of the ~~Rent payable by Permittee~~ Deposit, and, except for the Surviving Obligations, all other obligations of the parties hereto shall cease and this Agreement shall terminate and be without further recourse or remedy to ~~Port under Paragraph E of this Permit,~~ the parties hereto) or (ii) ~~give written notice~~ close title to ~~Permittee within sixty (60) days after~~ the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, Property in accordance with ~~all applicable provisions of this Permit (including~~ the terms hereof, without ~~limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement~~ reduction in the ~~Rent~~ Purchase Price, together with an assignment of Seller's rights to any award paid or payable by ~~Permittee to Port under Paragraph E above; and (y)~~ or on behalf of the condemning authority. If ~~such damage is not covered by subsection (b)(ii)(x) above,~~ Seller has received payments from the condemning authority and if ~~such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given~~ Buyer elects to close title to the ~~other within sixty (60) days after~~ Property, Seller shall credit the ~~date~~ amount of ~~occurrence of such damage, to terminate this Permit as of~~ said payments against the ~~date of such damage, in which event all proceeds of~~ Purchase Price at the ~~insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port~~Closing. (c) ~~If the Assigned Space is damaged~~ With respect to any Material Casualty or ~~destroyed by casualty~~Material Taking, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event Buyer shall be ~~governed by the terms of this Permit.~~ deemed to have elected to proceed under Article 10(a)(i) and 10(b)(ii) above respectively and as applicable, unless, within ten (a10) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of days from the date of ~~valuation~~ Seller’s delivery of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession written notice of such ~~portion of the Assigned Space and Permittee no longer~~ Material Casualty or Material Taking to Buyer, Buyer provides Seller with written notice that Buyer has ~~full possession of such portion, this Permit shall terminate with respect~~ elected to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except Agreement as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this ~~subsection (h)~~Article 10. (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Lease (Abiomed Inc)

Damage or Destruction Condemnation. (a) If any Improved Property shall have been damaged by fire or other casualty prior to the Closing (a “Casualty”), such that in the reasonable estimate of Seller’s architect or engineer, the cost to repair the same exceeds three percent (3%) of the amount of the Purchase Price allocated to such Improved Property pursuant to Article 3 hereof or would allow any tenant to terminate its Lease (a “Material Casualty”), and unless Seller has previously repaired or restored the applicable Improved Property to its former condition prior to the Closing Date, then, at Buyer’s sole option, Seller shall either (i) pay over or assign to Buyer, on delivery of the Deed all physical damage proceeds of any insurance policies payable to Seller (including any rental loss proceeds for the period after Closing (if any)), less any amounts reasonably expended by Seller for partial restoration, with a credit to Buyer for the amount of any deductible or uninsured casualty cost, or (ii) direct Escrow Agent to return the Deposit and accrued interest thereon to Buyer in which case, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Agreement shall terminate and be without further recourse or remedy to the parties hereto. In the event ~~the Assigned Space or the improvements thereon are damaged by~~ of any ~~casualty which~~ Casualty that is ~~required~~ not a Material Casualty, Buyer and Seller shall proceed to ~~be insured against by Permittee pursuant to this Permit, then Permittee shall,~~ Closing in accordance with ~~all applicable requirements~~ the terms and conditions of this ~~Permit~~ Agreement and, unless Seller has previously repaired or restored the applicable Improved Property to its former condition prior to the Closing Date, then Seller shall pay over or assign to Buyer, on delivery of the Deed all physical damage proceeds of any insurance policies payable to Seller (including ~~without limitation Section 1(2) above~~any rental loss proceeds for the period after Closing (if any)), ~~repair such damage (and replace~~ less any ~~Trade Equipment damaged~~ amounts reasonably expended by ~~such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect~~Seller for partial restoration, with ~~no abatement in~~ a credit to Buyer for the ~~Rent payable by Permittee to Port under Paragraph E~~ amount of ~~this Permit~~any deductible or uninsured casualty cost. In the event Buyer is required to, or elects to, close, Seller shall not compromise, settle or adjust any claims without the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed. (b) In If all or a material part of any Improved Property is taken by condemnation, eminent domain or by agreement in lieu thereof prior to the ~~event~~ Closing (a “Taking”) such that in the ~~Assigned Space~~ reasonable estimate of Seller’s architect or engineer, the loss of value of the remaining Improved Property or the ~~improvements thereon are damaged by any casualty which is not required~~ value of the portion of the Improved Property so taken exceeds an amount equal to three percent (3%) of the amount of the Purchase Price allocated to such Improved Property pursuant to Article 3 hereof, or results in a loss of parking stalls that would cause the Property to be ~~insured against by Permittee pursuant~~ in violation of applicable laws or would allow any tenant to ~~the provisions of this Permit~~terminate its Lease (a “Material Taking”), ~~then Port~~ Buyer may, at ~~Port’s~~ Buyers’ sole option, either (i) ~~repair such damage as soon as reasonably possible at Port’s expense,~~ terminate this Agreement (in which event ~~this Permit shall continue in full force and effect, and there~~ Buyer shall be ~~no abatement in~~ entitled to a return of the ~~Rent payable by Permittee~~ Deposit, and, except for the Surviving Obligation, all other obligations of the parties hereto shall cease and this Agreement shall terminate and be without further recourse or remedy to ~~Port under Paragraph E of this Permit,~~ the parties hereto) or (ii) ~~give written notice~~ close title to ~~Permittee within sixty (60) days after~~ the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, Property in accordance with ~~all applicable provisions~~ the terms hereof, without reduction in the Purchase Price, together with an assignment of Seller’s rights to any award paid or payable by or on behalf of the condemning authority. In the event of any Taking that is not a Material Taking, Buyer and Seller shall proceed to Closing in accordance with the terms and conditions of this ~~Permit (including~~ Agreement, without ~~limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement~~ reduction in the ~~Rent~~ Purchase Price, together with an assignment of Seller’s rights to any award paid or payable by ~~Permittee to Port under Paragraph E above; and (y)~~ or on behalf of the condemning authority. If ~~such damage is not covered by subsection (b)(ii)(x) above,~~ Seller has received payments from the condemning authority and if ~~such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given~~ Buyer elects or is required to close title to the ~~other within sixty (60) days after~~ Property, Seller shall credit the ~~date~~ amount of ~~occurrence~~ said payments against the Purchase Price at the Closing. In the event Buyer is required to, or elects to, close, Seller shall not compromise, settle or adjust any claims without the prior written consent of ~~such damage~~Buyer, ~~to terminate this Permit as of the date of such damage~~which shall not be unreasonably withheld, ~~in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port~~conditioned or delayed. (c) ~~If the Assigned Space is damaged~~ With respect to any Material Casualty or ~~destroyed by casualty~~Material Taking, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event Buyer shall be ~~governed by the terms of this Permit.~~ deemed to have elected to proceed under Article 10(a)(i) and 10(b)(ii) above respectively and as applicable, unless, within ten (a10) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of days from the date of ~~valuation~~ Seller’s delivery of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession written notice of such ~~portion of the Assigned Space and Permittee no longer~~ Material Casualty or Material Taking to Buyer, Buyer provides Seller with written notice that Buyer has ~~full possession of such portion, this Permit shall terminate with respect~~ elected to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except Agreement as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this ~~subsection (h)~~Article 10. (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Industrial Property Trust Inc.)

Damage or Destruction Condemnation. (a) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is required to be insured against by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to (v) to remove all damaged Concession Units (and their associated Minimum Annual Guaranty) from the Assigned Space, effective as of the date of the occurrence of such damage, or (w) to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by ~~subsection (b)(ii)(x~~Section 37(b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. In the event a Concession Unit is removed from the Assigned Space pursuant to Section 37(1)(b)(ii)(v) above, the Port, shall send to Permittee an amendment to this Permit showing the deletion of that Concession Unit from the Assigned Space, and this Permit shall be deemed amended thereby. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this ~~subsection (c~~Section 37(2)(c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this ~~subsection (h~~Section 37(2)(g). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Space/Use Permit for Food and Beverage Concession

Damage or Destruction Condemnation. ~~(a)~~ 8.1 Risk of loss to the Property from fire or other casualty shall be borne by Seller until Closing. If the Property or any portion thereof is substantially damaged or are destroyed by fire or other casualty prior to Closing and Seller is unable or fails to restore, by the date established for Closing, the damaged portion of the Property to a condition equivalent to that which existed immediately prior to the casualty, then Buyer shall have the option of canceling the Agreement or electing to proceed. For purposes of this paragraph, substantial damage shall be damage estimated by a contractor of Seller’s selection and reasonably acceptable to Buyer, to cost in excess of $100,000 to repair. In the event that damage is not substantial or if, notwithstanding substantial damage, Buyer elects to proceed with Closing, Seller shall assign to Buyer all of the ~~Assigned Space~~ Seller’s right, title and interest in the proceeds to be paid on the claim of loss. 8.2 If prior to Closing, any “substantial portion” of the Property become subject to a condemnation proceeding or a threat thereof by public or quasi public authority having the power of eminent domain, Seller shall immediately notify Buyer thereof in writing and Buyer may elect to terminate this Agreement. For purposes of this Paragraph, “substantial portion” shall be defined as a taking of such portion of the Property such that Buyer’s use of the Property would be materially impacted as Buyer shall determine or the ~~improvements thereon are damaged by any casualty~~ taking of such land which ~~is required~~ prevents access to the Property from a public road. If Buyer elects to terminate this Agreement, it shall so notify Seller within fifteen (15) days after Buyer has received written notice of such proceedings from Seller and the Escrow Funds shall be ~~insured against by Permittee pursuant~~ returned to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, the Buyer and this ~~Permit~~ Agreement shall ~~continue in full force~~ be deemed null and ~~effect,~~ void and the parties hereto shall have no further obligations to or recourse against each other with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant regard to the ~~provisions of~~ matters provided for herein. If Buyer has not elected to terminate this ~~Permit~~Agreement as provided in this Paragraph, ~~then Port may, at Port’s option, either (i) repair such damage~~ the transaction shall proceed as ~~soon as reasonably possible at Port’s expense~~contemplated herein, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port Buyer shall be entitled to receive all ~~sums~~ proceeds of any award or payment in lieu thereof. 8.3 All existing casualty insurance policies respecting the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) Property shall be ~~paid to Permittee~~maintained and kept in full force and effect by Seller pending Closing. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Agreement of Sale (Lannett Co Inc)

Damage or Destruction Condemnation. (a) In The risk of loss, damage or destruction to the ~~event the Assigned Space~~ Property by fire or other casualty or the ~~improvements thereon are damaged~~ taking of all or part of the Property by ~~any casualty which~~ condemnation or eminent domain or by an agreement in lieu thereof until the Closing is ~~required to be insured against~~ assumed by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this PermitDuke. (b) In the event of any damage or destruction of the ~~Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit~~Property, ~~then Port may~~then, ~~at Port’s option, either~~ as long as (i) ~~repair such~~ the damage ~~as soon as reasonably possible at Port’s expense~~or destruction was insured, ~~in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or~~ (ii) ~~give written notice~~ there is no loss of rent (i.e. the tenants are not entitled to ~~Permittee within sixty~~ an abatement of rent, or if tenants are entitled to an abatement of rent, such abatement is covered through rent loss insurance proceeds or a binding, unconditional agreement by Duke in form and substance satisfactory to Belcrest to cover such abatement), and (60iii) ~~days after~~ Duke pays to the ~~date~~ Company any applicable deductible, then the Company and Belcrest shall proceed to Closing. If the conditions of ~~occurrence of such damage of Port’s intention~~ subsection (b) above are not satisfied, then Belcrest may elect to proceed to Closing to include the affected Property, or terminate this ~~Permit, in which event such termination shall be effective~~ Agreement as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Portaffected Property. (c) If all or part of the ~~Assigned Space~~ Property is ~~damaged~~ taken by condemnation, eminent domain or ~~destroyed~~ by ~~casualty~~agreement in lieu thereof, ~~Permittee shall have no claim against Port~~ or any proceeding to acquire, take or condemn all or part of the Property is threatened or commenced (collectively, a “Taking”), which (i) allows a tenant to terminate its lease (and said tenant does not agree to waive its termination right) or (ii) materially impacts access or parking for the applicable Property (collectively, a “Material Taking”), the Company may either (1) terminate this Agreement as it relates to the affected Property and proceed to Closing on the remaining Properties with an appropriate reduction in the Gross Agreed Value for any ~~damage suffered by reason of any such damage~~ terminated Property or ~~destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate~~ (2) proceed to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee Closing in accordance with ~~all applicable requirements~~ the terms hereof, without reduction in the Gross Agreed Value. If Owning Entity has received payments from the condemning authority and if Company elects to proceed to Closing, Owning Entity shall credit the amount of ~~this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore~~ said payment against the ~~portion of~~ Gross Agreed Value at the ~~Assigned Space~~ Closing. If a Taking is not ~~so taken to an architecturally complete unit suitable for use by Permittee;~~ a Material Taking and the ~~monthly Rent payable by Permittee hereunder~~ Owning Entity has not received payments from the condemning authority, then the parties shall proceed to Closing in accordance with the terms hereof, without reduction in the Gross Agreed Value. If payments have been received, a credit for same shall be ~~equitably reduced during~~ applied at Closing except to the ~~time Permittee does not have full use of the Assigned Space as a result of such taking to account~~ extent used by Property Owner for ~~the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance~~ repair of any ~~compensation and damages remaining after~~ damage to the ~~reconstruction and restoration contemplated~~ Property caused by ~~this subsection shall be distributed in~~ the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended therebyTaking. (d) ~~If a taking~~ Duke shall ~~occur which does not result in a termination~~ immediately notify Company of ~~this Permit as provided in~~ any damage or destruction to the ~~previous subsections~~ Property or any notice received by Owning Entity or Duke or information or awareness acquired by Duke regarding the threatening of ~~this Section 37(2), and which does not require any portion~~ or commencement of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rentcondemnation or similar proceedings. (e) ~~No taking of Permittee’s leasehold estate in the Assigned Space or~~ If any ~~part thereof without a taking of the fee shall terminate or give Permittee the right to surrender~~ Property is terminated from this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that Agreement pursuant to this ~~Permit are~~ Article 11, the Closing shall be delayed to ~~remain~~ allow Duke to transfer the Property from the Property Owner to an entity owned solely by Duke, together with ~~the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce~~ an assignment of all insurance or ~~xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee~~Taking proceeds, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h)necessary. (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Contribution Agreement (Duke Realty Corp)

Damage or Destruction Condemnation. ~~(a) In~~ Issuer covenants and agrees that in the event of damage to or destruction of the ~~Assigned Space~~ Facilities, or if all or any part of the improvements thereon are damaged by any casualty which is required to be insured against by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there Facilities shall be ~~no abatement in~~ taken under the ~~Rent payable by Permittee to Port under Paragraph E~~ exercise of ~~this Permit~~eminent domain, it will immediately notify Trustee. All insurance money paid or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit net amounts awarded shall be paid to ~~Port. (c)~~ Issuer, and Issuer shall proceed to restore, repair, replace or rebuild the Facilities as nearly as possible to the condition they were in immediately prior to such damage or condemnation, to the extent that the same may be feasible, subject to such alterations as Issuer may elect to make. If the ~~Assigned Space is damaged~~ insurance money or ~~destroyed~~ net amounts awarded shall be insufficient to pay all costs of the restoration, Issuer shall pay the deficiency and shall nevertheless proceed to complete the restoration and pay the cost thereof. Any balance of the insurance or condemnation proceeds remaining over and above the cost of the restoration shall be considered Revenues of Issuer. Issuer’s obligations to make all payments set forth herein and to perform all other covenants and agreements on its part to be performed shall not be affected by ~~casualty, Permittee shall have no claim against Port for any damage suffered by reason of~~ any such damage or ~~destruction~~destruction or condemnation. Notwithstanding the foregoing provisions of this Section, Issuer shall not be required to repair, restore, replace or rebuild the Facilities, or ~~for~~ any ~~required repair or restoration. Port and Permittee hereby waive~~ part thereof, if Issuer shall elect pursuant to Section 3.09 above to redeem prior to maturity on the ~~provisions~~ next possible redemption date all of ~~California Civil Code Sections 1932 and 1933~~the Debentures then Outstanding, together with accrued interest to the redemption date, and ~~of any~~ to pay all charges, fees and expenses necessarily incurred and required to be incurred in connection with such redemption, and all other ~~statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed~~ amounts then owing by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reducedIssuer. In ~~the event of such a taking, the Port shall be entitled to receive all sums in the award of damages and compensation arising by reason of such taking except~~ that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permitteeevent, the proceeds of all insurance or condemnation awards shall be ~~distributed~~ placed in ~~accordance with~~ and become part of the ~~last sentence of Section 37(2)(a) above~~Debenture Fund. ~~Permittee, however, shall~~ If there be ~~entitled to an equitable reduction~~ any deficiency in the ~~monthly Rent. (e) No taking of Permittee’s leasehold estate~~ monies on deposit in the ~~Assigned Space or any part thereof without a taking of~~ Debenture Fund after the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession deposit of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Spaceproceeds, ~~and (3) as between Port and Permittee, Port~~ Issuer shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on immediately deposit therein the amount of ~~such reduction,~~ the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h)deficiency. (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Trust Indenture (Cross Border Resources, Inc.)

Damage or Destruction Condemnation. (a) In If the ~~event the Assigned Space or the improvements thereon are~~ Leased Premises shall be partially damaged by any casualty covered under Landlord’s insurance policy, Landlord shall repair the same to the condition which existed as of the date of this Lease, and the Base Rent and all Additional Rent and other charges shall be abated proportionately as to that portion of the Leased Premises rendered untenantable. If (a) the Leased Premises (i) by reason of such occurrence is rendered wholly untenantable, or (ii) should be damaged in whole or in part during the last year of the Lease Term or of any Renewal Term hereof, or (b) the building of which the Leased Premises is a part (whether or not the Leased Premises is damaged) is damaged to the extent of seventy-five percent (75%) or more of the then monetary value thereof or (c) if a substantial material portion of or all of the buildings or common facilities are damaged, whether or not the Leased Premises are damaged, to such an extent that the Property cannot, in the reasonable judgment of Landlord, be operated as an integral unit, then, in any of such events described in (a) through (c) above, Landlord may either elect to repair the damage to the condition existing at the time of execution of this Lease (other than damage to Tenant’s fixtures, furniture, equipment, other personal property and any other portions of the Leased Premises or any property located therein for which Tenant is required to or does insure or as to which Tenant shall be ~~insured against~~ responsible to repair or restore as provided below) or may cancel this Lease by ~~Permittee pursuant~~ notice of cancellation given within sixty (60) days after such event and thereupon this Lease shall expire, and Tenant shall vacate and surrender the Leased Premises to Landlord. Upon the occurrence of any of the events described in (a) through (c) above, Tenant may cancel this ~~Permit~~Lease by notice of cancellation given within sixty (60) days after such event and thereupon this Lease shall expire. Tenant’s liability for Rent upon the termination of this Lease shall cease as of the later of (y) the day following the event or damages or (z) the date upon which Tenant ceased to do business at the Demised Premises. In the event Landlord elects to repair the damage, any abatement of Rent shall end upon the date that Landlord completes Landlord’s obligations to restore the Leased Premises. (b) If the whole of the Leased Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, then ~~Permittee shall,~~ the Term shall cease and terminate as of the date of title vesting in ~~accordance with~~ the condemnor in such proceeding and all ~~applicable requirements~~ Rent shall be paid up to that date and Tenant shall have no claim against Landlord for the value of any unexpired Lease Term of this ~~Permit~~ Lease. (~~including without limitation Section 1(2~~c) ~~above)~~If any part of the Leased Premises or of the Property shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, ~~repair~~ and in the event that such ~~damage (~~partial taking or condemnation shall render the Leased Premises and/or the Property unsuitable for the business of Tenant, then the Lease Term shall cease and ~~replace~~ terminate as of the date of title vesting in the condemnor in such proceeding, and Tenant shall have no claim against Landlord for the value of any ~~Trade Equipment damaged by such casualty) as soon as reasonable possible~~unexpired Lease Term. In the event of a partial taking or condemnation which is not extensive enough to render the Leased Premises unsuitable for the business of Tenant, ~~at its own cost~~then Landlord shall promptly restore the Leased Premises to the condition set forth in Exhibit A less the portion lost in the taking, and this ~~Permit~~ Lease shall continue in full force and effect~~, with no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is~~ . Landlord shall not be required to ~~be insured against by Permittee pursuant to~~ expend in such restoration more than the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give written notice to Permittee within sixty (60) days after the date of occurrence of such damage of Port’s intention to terminate this Permit, in which event such termination shall be effective as of the date of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall have the right, by written notice given to the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the ~~insurance against casualty that Permittee was required to maintain pursuant to this Permit~~ award which is reserved for such purpose. The Base Rent shall be ~~paid to Port. (c) If~~ reduced in the ~~Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason~~ proportion that the area of ~~any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive~~ the ~~provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate~~ Leased Premises taken bears to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a taking, the Port shall be entitled to receive all sums entire area contained in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal to the fair market value of Permittee’s leasehold interest in the Assigned Space (as of the date of valuation of the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in termination of this Permit as provided in the previous subsections of this Section 37(2), but which requires the portion of the Assigned Space not so taken to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permittee, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended therebyLeased Premises. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any condemnation or taking ~~of any portion of the Assigned Space~~as hereinbefore provided, ~~Permittee~~ whether whole or partial, Tenant shall not be entitled to any part of the award, as damages or otherwise, for such condemnation and Landlord is to receive the full amount of such award. Tenant hereby expressly waives any right or claim to any part thereof and assigns to Landlord any share of such an award as may be granted to it. Although all damages in the event of any condemnation are to belong to Landlord whether such damages are awarded as compensation for diminution in value of the leasehold or to the fee of the Leased Premises, and although Tenant hereby expressly waives all claims against Landlord, Tenant shall have the right to claim and recover from the condemning authority, not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant’s own right on account of any and all damages ~~arising from such taking~~ to Tenant’s business by reason of the condemnation and ~~payable~~ for or on account of ~~the Permittee~~any cost or loss to which Tenant might be put in removing Tenant’s ~~Trade Equipment located on the portion of the Assigned Space so taken~~merchandise, ~~except for those trade fixtures~~ furniture, fixtures, leasehold improvements and ~~equipment that pursuant to this Permit are to remain with the Assigned Space on surrender~~equipment. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Agreement of Sale (Lenox Group Inc)

Damage or Destruction Condemnation. ~~(a)~~ In the event of loss or of damage to the ~~Assigned Space~~ building improvements included within the Property by fire or ~~the improvements thereon are damaged by any~~ other casualty ~~which is required~~ prior to ~~be insured against by Permittee pursuant to this Permit, then Permittee shall, in accordance with all applicable requirements~~ Close of ~~this Permit~~ Escrow (~~including without limitation Section 1(2) above~~a "Casualty"), repair such damage (and replace any Trade Equipment damaged by such casualty) as soon as reasonable possible, at its own cost, and this Permit shall continue in full force and effect, with no abatement or in the ~~Rent payable~~ event a proceeding is instituted or threatened prior to Close of Escrow for the taking of all or any portion of the Property under the power of eminent domain (a "Taking"), Buyer shall have the right by Permittee to Port under Paragraph E of this Permit. (b) In the event the Assigned Space or the improvements thereon are damaged by any casualty which is not required to be insured against by Permittee pursuant to the provisions of this Permit, then Port may, at Port’s option, either (i) repair such damage as soon as reasonably possible at Port’s expense, in which event this Permit shall continue in full force and effect, and there shall be no abatement in the Rent payable by Permittee to Port under Paragraph E of this Permit, or (ii) give giving written notice to ~~Permittee~~ Seller and the Escrow Holder within ~~sixty~~ thirty (6030) days after the date of ~~occurrence~~ receipt of written notice of any such ~~damage~~ Casualty or Taking, either to (i) consummate the purchase and sale of ~~Port’s intention to terminate~~ the Property in accordance with this ~~Permit,~~ Agreement (in which event Seller shall deliver to Buyer at Close of Escrow an assignment reasonably satisfactory in form and substance to Buyer of all of the right, title and interest, if any, which Seller may have in (A) the insurance payable under all insurance policies kept or maintained by Seller as a result of or in connection with such ~~termination shall be~~ Casualty and (B) the award payable by reason of the Taking and, concurrently therewith, deposit cash in Escrow for Buyer in the amount of any and all such proceeds and award theretofore received by Seller); or (ii) terminate this Agreement effective as of the date such notice of the occurrence of such damage; provided, however, that notwithstanding the foregoing: (x) If such damage was caused by the act or omission of Permittee or any principal, affiliate, contractor, employee, agent, licensee or invitee of Permittee, then Permittee shall, in accordance with all applicable provisions of this Permit (including without limitation Section 1(2) above), repair such damage promptly and at its sole cost and expense, this Permit shall remain in full force and effect, and there termination is given to Seller. The Closing Date shall be ~~no abatement in the Rent payable by Permittee~~ deferred, if necessary, to ~~Port under Paragraph E above; and (y) If such damage is not covered by subsection (b)(ii)(x) above, and if such damage occurred during the last twelve months of the Term, then either party shall~~ permit Buyer to have the ~~right, by written notice given~~ thirty (30)-day period following a Casualty or Taking to make the other within sixty (60) days after the date of occurrence of such damage, to terminate this Permit as of the date of such damage, in which event all proceeds of the insurance against casualty that Permittee was required to maintain pursuant to this Permit shall be paid to Port. (c) If the Assigned Space is damaged or destroyed by casualty, Permittee shall have no claim against Port for any damage suffered by reason of any such damage or destruction, or for any required repair or restoration. Port and Permittee hereby waive the provisions of California Civil Code Sections 1932 and 1933, and of any other statutes which relate to the termination of a Permit when leased property is destroyed and agree that any such event shall be governed by the terms of this Permit. (a) If the whole of the Assigned Space should be taken by any public or quasi-public authority under the power or threat of eminent domain, then, in such event, on the earlier of the date title to the Assigned Space vests in such public or quasi-public authority, or the date on which said public or quasi-public agency takes possession of the Assigned Space, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s and Permittee’s rights to any compensation or damages for, on the account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reducedelection specified hereinabove. In the event of any such ~~a taking,~~ termination the ~~Port~~ Escrow Holder shall forthwith terminate the Escrow. Seller and Buyer shall each be ~~entitled to receive all sums in the award of damages and compensation arising by reason of such taking except that an amount therefrom equal~~ responsible for payment to the ~~fair market value~~ Escrow Holder of ~~Permittee’s leasehold interest in the Assigned Space~~ one-half (as 1/2) of the ~~date~~ Escrow fees and charges related to termination, if any. Provided Buyer shall have given a copy to Seller of ~~valuation~~ any and all surveys, tests, audits and studies made by or for Buyer pursuant to Section 3.4.3 of ~~the taking) shall be paid to Permittee. (b) If a substantial portion of the Assigned Space should be taken so as to impair materially the use of the Assigned Space as contemplated by the Permit~~this Agreement, then on the earlier of the date title to such portion of the Assigned Space vests in such public or quasi-public agency, or the date on which such public or quasi-public agency takes possession of such portion of the Assigned Space and Permittee no longer has full possession of such portion, this Permit shall terminate with respect to Port’s and Permittee’s future obligations hereunder, but said termination shall not affect Port’s or Permittee’s rights to any compensation or damages for, on account of, or arising out of such taking. For any period of time prior to termination during which Permittee (involuntarily on account of such taking or any proceedings related thereto) does not have full use of the Assigned Space, the monthly Rent due hereunder shall be equitably reduced. In the event of such a substantial taking, the award of damages and compensation arising by reason of such taking shall be distributed in the same manner as the last sentence of Section 37(2)(a) above. (c) If a taking shall occur which does not result in upon termination of this ~~Permit~~ Agreement as provided above in ~~the previous subsections of~~ this Section ~~37(2)~~13, ~~but which requires~~ the ~~portion~~ Escrow Holder shall forthwith disburse Buyer's Xxxxxxx Money Deposit (and any interest earned thereon) to Buyer (less Buyer's share, if then unpaid, of the ~~Assigned Space not so taken~~ Escrow fees and charges related to be reconstructed and restored so as to be constituted an architecturally complete unit suitable for use by Permittee, all compensation and damages payable for or on account of such taking shall be payable to Permittee, and shall be held in a separate account approved in writing by Port in trust by Permittee to be used by Permittee in accordance with all applicable requirements of this Permit (including without limitation Section 1(2) above) solely to reconstruct and restore the portion of the Assigned Space not so taken to an architecturally complete unit suitable for use by Permittee; and the monthly Rent payable by Permittee hereunder shall be equitably reduced during the time Permittee does not have full use of the Assigned Space as a result of such taking to account for the reduced economic value to Permitteetermination, if any, occasioned by reason of such taking. The balance of any compensation and damages remaining after the reconstruction and restoration contemplated by this subsection shall be distributed in the same manner as distribution of damages and compensation for a total taking under the last sentence of Section 37(2)(a) above. In the event of a taking covered by this subsection (c), Port shall send to Permittee an amendment to this Permit showing the deletion of that portion of the Assigned Space that was the subject of this taking, and this Permit shall be deemed amended thereby. (d) If a taking shall occur which does not result in a termination of this Permit as provided in the previous subsections of this Section 37(2), and which does not require any portion of the Assigned Space not so taken to be reconstructed and restored so as to constitute an architecturally complete unit suitable for use by Permittee, the proceeds shall be distributed in accordance with the last sentence of Section 37(2)(a) above. Permittee, however, shall be entitled to an equitable reduction in the monthly Rent. (e) No taking of Permittee’s leasehold estate in the Assigned Space or any part thereof without a taking of the fee shall terminate or give Permittee the right to surrender this Permit, nor excuse the taker of such leasehold estate, including any successor in interest thereto, from full performance of the covenants for the payment of the Rent and other charges or any other obligations hereunder capable of performance by the taker of such leasehold estate, including any successor in interest thereto, after any such taking, but in such case, all compensation and damages payable for or on account of such taking shall be payable to and be the sole property of Port. During any period of time that Permittee is not in possession of the Assigned Space, or any portion thereof, as a result of the taking of any portion of its leasehold estate hereunder, but only during such period of time, (1) Permittee shall not be obligated to pay or in any way be liable for the payment of any Rent or to perform any of the other obligations or covenants otherwise to be performed by it hereunder with respect to, but only with respect to the portion of the Assigned Space affected by such taking, (2) the Port shall look solely to the taker of such leasehold interest, including the successors in interest thereto and any party then in possession of all or such portion of the Assigned Space affected by such taking for the payment of the Rent and the performance of the other obligations and covenants hereunder with respect to such portion of the Assigned Space, and (3) as between Port and Permittee, Port shall not forfeit or terminate this Permit for breach by the taker of such leasehold interest, including its successors in interest thereto and any party then in possession, of any obligation or covenant hereunder, including the obligation to pay the Rent. Any taking that is the subject of this subsection (e) shall not extend the Term of this Permit. (f) In the event of any taking of any portion of the Assigned Space, Permittee shall be entitled to receive all compensation and damages arising from such taking and payable for or on account of the Permittee’s Trade Equipment located on the portion of the Assigned Space so taken, except for those trade fixtures and equipment that pursuant to this Permit are to remain with the Assigned Space on surrender. (g) Except as otherwise expressly provided in this Section 37(2), no taking shall reduce or xxxxx Permittee’s obligation to pay the Rent during the Term of this Permit. Where Section 37(2) expressly provides for a reduction in the Rent payable by Permittee, if the parties cannot agree on the amount of such reduction, the same shall be determined by Arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrators shall have no power to modify any of the provisions of this Permit and their jurisdiction is limited accordingly. Each party hereby consents to the entry of judgment by any court having jurisdiction in accordance with the arbitration decision. No change in the Arbitration Rules which would deprive a party of the rights to be represented by counsel, to present evidence or to cross-examine witnesses presented by the other party shall be effective in any arbitration proceeding arising out of this Permit. Any arbitration provided for herein shall be conducted in the Port’s offices in Alameda County, California. Disputes under this Permit shall be subject to Arbitration only to the extent expressly provided for in this subsection (h). (h) Permittee acknowledges the Port’s reserved power upon payment of just compensation to exercise its power of eminent domain as to the leasehold estate created hereunder; provided, however, that the foregoing acknowledgment shall not be deemed or construed to prejudice or waive any rights of Permittee to challenge or object to any attempt by the Port so to exercise such power.

Appears in 1 contract

Samples: Purchase/Sale Agreement (CDW Computer Centers Inc)

Common use of Damage or Destruction Condemnation Clause in Contracts