Failure to Provide Services. Landlord shall have no liability for damages, abatement of Rent or otherwise, to Tenant or others based on any failure by Tenant to furnish or delay in furnishing the foregoing or any other utilities or services hereunder, or for any diminution in the quality or quantity thereof, due, in whole or in part, to Force Majeure, repair or maintenance work or any other reason, and such failure shall neither render Landlord liable for damages to either person or property, nor be construed as an eviction of Tenant, nor a disturbance of Tenant’s use and possession of the Premises, nor cause a diminution or abatement of Rent nor relieve Tenant of any of Tenant’s obligations hereunder. Furthermore, Landlord shall not be liable under any circumstances for a loss of, or injury to, property or for injury to, or interference with, Xxxxxx’s business, including, without limitation, loss of profits, however occurring, through or in connection with or incidental to a failure to furnish any of the services or utilities required hereunder. To the extent possible, any scheduled Building Systems shutdown shall be reasonably coordinated with Tenant to minimize impact on Tenant’s business operations. Notwithstanding the foregoing or anything to the contrary contained herein, if any of the essential services to be provided pursuant to this Lease is suspended as a result of the gross negligence or willful misconduct of Landlord (or Landlord’s agents, employees or contractors) (a “Service Interruption”), and such Service Interruption renders all or a material portion of the Premises unusable for Tenant's normal business purposes permitted hereunder and Tenant does not actually use the affected portion of the Premises as a result thereof, for a continuous period of five (5) or more consecutive business days following written notice thereof from Tenant (except in the event of Force Majeure or any act or omission of Tenant) (the “Service Interruption Eligibility Period”), then, as Tenant's sole remedy in connection with such Service Interruption, Base Rent due under this Lease shall be abated based on the proportion that the affected portion of the Premises bears to the entire Premises (provided, however, that if the affected portion of the Premises is such that Tenant cannot operate for its normal business purposes permitted hereunder from, and does not actually use, the entirety of the Premises, then all Base Rent shall so xxxxx) from the expiration of the Service Interruption Eligibility Period until the earlier of (i) the date the Service Interruption is corrected and (ii) the date Tenant is able to use the affected portion of the Premises for its normal business purposes..
Appears in 2 contracts
Samples: Lease Agreement (Gsi Technology Inc), Lease Agreement (Gsi Technology Inc)
Failure to Provide Services. Landlord shall have no liability for damages, abatement of Rent or otherwise, to Tenant or others based on any failure by Tenant to furnish or delay in furnishing the foregoing or any other utilities or services hereunder, or for any diminution in the quality or quantity thereof, due, in whole or in part, to Force Majeure, repair or maintenance work or any other reason, and such failure shall neither render Landlord liable for damages to either person or property, nor be construed as an eviction of Tenant, nor a disturbance of Tenant’s use and possession of the Premises, nor cause a diminution or abatement of Rent nor relieve Tenant of any of Tenant’s obligations hereunder. Furthermore, Landlord shall not be liable under any circumstances for a loss of, or injury to, property or for injury to, or interference with, Xxxxxx’s business, including, without limitation, loss of profits, however occurring, through or in connection with or incidental to a failure to furnish any of the services or utilities required hereunder. To the extent possible, any scheduled Building Systems shutdown shall be reasonably coordinated with Tenant to minimize impact on Tenant’s business operations. Notwithstanding the foregoing or anything to the contrary contained hereinset forth in this Lease, Landlord hereby agrees that if any there is an interruption or discontinuance of the essential services which Landlord has agreed to be provided pursuant to provide in this Lease is suspended as a result of the gross negligence or willful misconduct of Landlord (or that are within Landlord’s agents, employees or contractors) (a “Service Interruption”), full control and such Service Interruption that renders all or a material portion of the Premises unusable for Tenant's normal business purposes permitted hereunder un-tenantable and Tenant does not actually use the affected portion of the Premises as a result thereof, continues for a continuous period of five (5) or more consecutive business days following after Landlord receives written notice thereof from Tenant (except in the event of Force Majeure or any act or omission of Tenant) (the hereinafter referred to as “Service Interruption Eligibility PeriodUnauthorized Interruption”), then, as Tenant's sole remedy in connection with such Service Interruption, ’s Base Rent and all other charges shall xxxxx commencing at the end of said five (5) business day period and continuing until such time as the Premises are rendered tenantable. However, if the Unauthorized Interruption is the result of any misconduct or negligent acts on the part of Tenant, its agents or employees, or due to Tenant’s failure to comply with the provisions hereof, Tenant’s Base Rent and all other charges shall not xxxxx, except to the extent of Landlord’s recovery with regard to the Premises under its rental insurance, if any. Provided, however, if any such Unauthorized Interruption is as a result of the Landlord’s (or its employees’, contractors’, representatives’ or agents’) gross negligence or willful misconduct, and such interruption continues for five (5) consecutive business days after notice of such Unauthorized Interruption is given to Landlord, then Tenant shall be entitled to an abatement of its obligations to make payments of Rent, commencing on the sixth (6th) business day after the notice of such interruption is given and continuing until such time as the interruption ceases. If such interruption shall continue for thirty (30) consecutive days, Tenant may elect to terminate this Lease shall be abated based on the proportion that the affected portion of the Premises bears upon ten (10) days’ notice to the entire Premises (Landlord; provided, however, that the election to terminate shall be of no force and effect if the affected portion of the Premises is such that Tenant cannot operate for its normal business purposes permitted hereunder from, and does not actually use, the entirety of the Premises, then all Base Rent shall so xxxxx) from prior to the expiration of said ten (10) day period the Service cause of such Unauthorized Interruption Eligibility Period until the earlier of (i) the date the Service Interruption is corrected and (ii) the date Tenant is able to use the affected shall have been removed by Landlord. No portion of the Premises for its normal business purposes..such Rent so abated shall be subject to subsequent recapture. The specified remedies herein shall be non-exclusive of each other and in addition to any other remedies available to Tenant at law or in equity.
Appears in 2 contracts
Samples: Lease Agreement (Advanced Energy Industries Inc), Lease Agreement (Advanced Energy Industries Inc)
Failure to Provide Services. (1) If Landlord fails to provide a service required by Article 9, subject to extension for Unavoidable Delays, Tenant may give Landlord notice of such failure and Landlord shall have no liability for damages, abatement commence restoration and thereafter diligently pursue such restoration to completion within five (5) Business Days after receipt of Rent or otherwise, such notice by Xxxxxx. If Landlord fails to Tenant or others based on any failure commence restoration and thereafter diligently pursue such restoration to completion within five (5) Business Days after receipt of such notice by Tenant to furnish or delay in furnishing the foregoing or any other utilities or services hereunder, or for any diminution in the quality or quantity thereof, due, in whole or in part, to Force Majeure, repair or maintenance work or any other reason, and such failure shall neither render Landlord liable for damages to either person or property, nor be construed as an eviction of Tenant, nor a disturbance of Tenant’s use and possession of the Premises, nor cause a diminution or abatement of Rent nor relieve Tenant of any of the services described in Article 9 (subject to extension for Unavoidable Delays and/or Tenant Operational Delay), then Tenant, in addition to any other remedy it may have, may, (x) subject to Section 39(I), perform all work necessary to restore such service and deduct the reasonable costs of such restoration from the next installments of Base Rent until Tenant has been reimbursed for the reasonable costs actually incurred by Xxxxxx in restoring such service, or (y) withhold a portion of Base Rent due equal to the sum of (i) 150% of the reasonable cost of performance of such obligations, as reasonably determined by an architect, engineer, and/or other consultant experienced in such matters that is either an employee of Tenant or a third-party engaged by Xxxxxx (“Tenant’s obligations hereunderRepair Consultant(s)”) and (ii) any out- of-pocket costs incurred by Tenant with respect to such third-party Tenant’s Repair Consultant(s), until Landlord performs such obligations, to the reasonable satisfaction of Tenant, at which time any amounts so withheld, less the costs incurred by Tenant for such third-party Tenant’s Repair Consultant(s), shall be paid to Landlord within thirty (30) days of Landlord curing such failure (clause (x) and clause (y) collectively, the “Standard Services Remedies”). FurthermoreIf any recoupment permitted to Tenant by this Section 9(G)(1) cannot be completed prior to the expiration of this Lease, Landlord shall not refund any balance owing on or before such expiration. Landlord’s obligations to refund any balance owing Tenant shall survive the expiration of this Lease. Landlord shall be liable under any circumstances obligated to continue to provide all services provided for a loss of, herein if Tenant invokes its right to deduct or injury to, property or for injury to, or interference with, Xxxxxx’s business, including, without limitation, loss of profits, however occurring, through or in connection with or incidental to withhold Rent as hereinabove provided. (2) (i) If a failure by Landlord to furnish any of provide the services in this Article 9 creates an emergency or utilities required hereunder. To the extent possible, any scheduled Building Systems shutdown shall be reasonably coordinated with Tenant to minimize impact on Tenant’s business operations. Notwithstanding the foregoing or anything to the contrary contained herein, if any of the essential services to be provided pursuant to this Lease is suspended as a result of the gross negligence or willful misconduct of Landlord hazardous condition that (or Landlord’s agents, employees or contractorsx) (a “Service Interruption”), and such Service Interruption renders affects all or a material portion of the Demised Premises unusable or (y) materially renders the Demised Premises or a material portion thereof unsuitable for the uses set forth herein, then Tenant shall give Landlord, its agent, superintendent or the person designated to receive such notice, prompt notice in writing, personally or by nationally recognized overnight mail service (“Overnight Mail”), and (a) if Landlord within twenty-four (24) hours of receipt of said notice, fails to restore services, or (b) if the restoration of such services is of a nature which requires more than twenty-four (24) hours to complete, then Landlord fails to commence to restore such services within such twenty-four (24) hour period and thereafter diligently prosecute such restoration to completion (in each case subject to extension for Unavoidable Delays and/or Tenant Operational Delay) (clause (a) and clause (b) each a “Landlord Services Default”), then Tenant's normal business purposes permitted hereunder , in addition to any other remedy it may have, may provide Landlord and Landlord’s Mortgagee with a five (5) Business Day notice, and if Landlord or its Mortgagee fail to commence restoring such services within said five (5) Business Day period and thereafter diligently continue to pursue restoring such services to completion (in each case, subject to extension for Unavoidable Delay and/or Tenant does not actually use Operational Delay), then Tenant may provide Landlord with a Second Landlord Services Default Notice (as hereinafter defined). If Landlord fails within sixty (60) days following the affected portion delivery of the Premises Second Landlord Services Default Notice (subject to extension for Unavoidable Delays and/or Tenant Operational Delay) to commence curing the applicable Landlord Services Default or (having previously commenced curing the 48 Landlord Services Default) to diligently and with continuity prosecute such cure of the applicable Landlord Services Default to completion, then the Lease shall terminate on the last day of such sixty (60) day period (as extended for Unavoidable Delay or Tenant Operational Delay) and neither party shall have any rights, interests, liabilities or obligations under this Lease for the period accruing after the effective date of termination, except those that, by the provisions of this Lease, expressly survive the expiration or termination of the Term of this Lease, unless such Landlord Services Default is cured or such cure is being diligently prosecuted prior to the expiration of such sixty (60) day period. For the avoidance of doubt, the Second Landlord Services Default Notice shall remain in full force and effect until Landlord completes its cure of the applicable Landlord Services Default. (ii) The term “Second Landlord Services Default Notice” shall mean a written notice from Tenant to Landlord that states the applicable Landlord Services Default and Tenant’s intention to terminate the Lease as a result thereof, and shall include the following statement in all capital letters: “THIS IS A TIME SENSITIVE NOTICE AND IF LANDLORD SHALL FAIL TO TAKE THE REQUIRED ACTIONS SPECIFIED IN THIS NOTICE WITHIN SIXTY (60) DAYS FOLLOWING LANDLORD’S RECEIPT OF THIS NOTICE, THEN TENANT SHALL BE DEEMED TO HAVE ELECTED TO TERMINATE THE LEASE PURSUANT TO ARTICLE 9 OF THE LEASE.” (iii) Tenant, upon at least thirty (30) days prior notice by Xxxxxxxx (or such shorter period as ends on the expiration of Landlord’s cure period, but no less than ten (10) days), shall execute and deliver to Landlord, and/or other person, firm or corporation specified by Landlord, a statement as to whether a Landlord Services Default noted in a Second Landlord Services Default Notice then remains uncured. For the avoidance of doubt, any failure by Tenant to provide such statement does not constitute either a Tenant Operational Delay or an event of default under Article 32. (3) If, as a result of Landlord’s failure to comply with Landlord’s obligations under this Article 9, the Demised Premises or any Substantial Portion thereof is rendered Untenantable, then, for a continuous the period of beginning on the date that is five (5) Business Days after the Demised Premises or more consecutive business days following written notice a Substantial Portion has become Untenantable and Tenant has delivered to Landlord the Untenantability Notice and ending on the date the Demised Premises or the applicable Substantial Portion thereof from Tenant (except in the event of Force Majeure or any act or omission of Tenant) (the “Service Interruption Eligibility Period”), then, as Tenant's sole remedy in connection with such Service Interruptionis no longer Untenantable, Base Rent due under this Lease and Additional Rent shall be appropriately abated based on the proportion that the affected portion of the Premises bears with respect to the entire Demised Premises (or the applicable Substantial Portion; provided, however, that Tenant shall not be entitled to an abatement for the period of time that Landlord is unable to remedy its failure as a result of Unavoidable Delay. (4) In accordance with the terms of Section 9(C)(4), Tenant shall be entitled to a credit against Base Rent for the aggregate of each Moving Delay Period that may occur, if applicable. (5) In addition to any other remedy Tenant may have, in each instance that the affected base building HVAC services provided pursuant to Section 9(A)(5) to the Demised Premises or a portion of the Demised Premises that may consist of a floor or multiple floors wherein no less than the entire portion of the Demised Premises on each such floor (each, as applicable, the “Affected Premises”) falls outside of the applicable temperature range set forth in the HVAC Performance 49 Specifications by five degrees Fahrenheit or more (an “HVAC Failure”), Tenant shall provide Landlord with written notice informing Landlord of such failure (the “HVAC Failure Notice”). In the event the HVAC Failure continues for ten (10) or more consecutive Business Days after Landlord’s receipt of the HVAC Failure Notice, then upon a second written notice (the “Second HVAC Failure Notice”) from Tenant to Landlord (i) Landlord shall, at its sole cost and expense, diligently and continuously seek to provide Tenant with an alternative office location or multiple locations for Tenant’s employees of the Affected Premises to report to that is such reasonably acceptable to Tenant and Landlord shall reimburse Tenant for all costs (regardless of whether reasonable or not) that Tenant cannot operate incurs to transition to and from the alternative location or locations and (ii) Rent for its normal business purposes permitted hereunder from, and does not actually use, the entirety Affected Area shall xxxxx for the period commencing on the date of Landlord’s receipt of the Premises, then all Base Rent shall so xxxxx) from Second HVAC Failure Notice and ending on the expiration of the Service Interruption Eligibility Period until date that is the earlier of (a) Tenant is provided alternative office space in accordance with clause (i) (which resumption of Rent may be on a pro- rata basis in the date event Landlord provides multiple alternative locations), (b) Landlord has provided a temporary solution to remedy the Service Interruption HVAC Failure by means of portable or localized HVAC equipment, outside temperature chiller(s), or other solution or remedy reasonably satisfactory to Tenant, or (c) Landlord demonstrates by written notice to Tenant that the base building HVAC services to the Affected Premises have been in compliance with the HVAC Performance Specifications for ten (10) consecutive Business Days and provides documentation demonstrating that it is corrected reasonable to assume the Affected Premises shall remain in compliance based on the repairs, maintenance or overhauls performed by Landlord. Notwithstanding anything the contrary, in the event Landlord fails to satisfy the requirements of either clause (a), clause (b), or clause (c) within one hundred and twenty (ii120) the date Tenant is able to use the affected portion days of its receipt of the Premises Second HVAC Failure Notice, Tenant shall be entitled to terminate this Lease for its normal business purposes..the Affected Area only on another sixty (60) days written notice to Landlord (unless the requirements of either clause (a), clause (b), or clause (c) have been satisfied within such sixty (60) day period, subject to extension for Unavoidable Delay, as such term is modified pursuant to Section 6(M)(2)) and in the event of a partial termination, Base Rent and Tenant’s Share shall be appropriately reduced on a pro-rata basis. Tenant shall promptly notify Landlord whether a proposed alternative office location is reasonably acceptable to Tenant; Tenant acknowledging that a reasonably acceptable alternative office location might not be newly renovated space or otherwise have leasehold improvements equivalent to Tenant’s Work. For the avoidance of doubt, Tenant may provide Landlord with multiple HVAC Failure Notices throughout the Term of this Lease. H.
Appears in 1 contract
Samples: Lease (Pacific Oak Strategic Opportunity REIT, Inc.)
Failure to Provide Services. If any of the services described in this Section 28, or Tenant’s access to the Premises, the Garage or other Common Areas are interrupted, Landlord will use its best efforts to resume the service or access to the extent the same is within the reasonable control of Landlord, and Landlord will use all due diligence to cause others to resume the service or access to the extent the same is beyond the reasonable control of Landlord. Except as otherwise provided in this Lease, Landlord shall have no liability for damages, abatement of Rent or otherwise, to Tenant or others based on any failure by Tenant Landlord to furnish or delay in furnishing the foregoing or any other utilities or services hereunder, or for any diminution in the quality or quantity thereof, due, in whole or in part, due to Force Majeure, repair or maintenance work or any other reason, Unavoidable Delays and such failure shall neither render Landlord liable for damages to either person or property, nor be construed as an eviction of Tenant, nor a disturbance of Tenant’s use and possession of the Premises, nor cause a diminution or abatement of Rent nor relieve Tenant of any of Tenant’s obligations hereunder. FurthermoreIn the event Tenant is prevented from using, Landlord shall and does not be liable under use, the Premises or any circumstances portion thereof, for a loss of, five (5) consecutive business days or injury to, property or for injury to, or interference with, Xxxxxx’s business, including, without limitation, loss of profits, however occurring, through or five (5) business days in connection with or incidental to a failure to furnish any of twelve (12) month period (the services or utilities required hereunder. To the extent possible, any scheduled Building Systems shutdown shall be reasonably coordinated with Tenant to minimize impact on Tenant’s business operations. Notwithstanding the foregoing or anything to the contrary contained herein, if any of the essential services to be provided pursuant to this Lease is suspended “Eligibility Period”) as a result of any matter which substantially interferes with Tenant’s use of the gross negligence same, if the reason for the suspension or willful misconduct the continuation of Landlord the suspension is anything other than an Unavoidable Delay, provided that any matter caused by the acts or omissions of tenants or other occupants of the Building shall not be deemed to result in an Unavoidable Delay for purposes of this Section, then the Rent (including parking charges) shall be abated or Landlord’s agentsreduced, employees or contractors) (a “Service Interruption”)as the case may be, after the expiration of the Eligibility Period for such time that Tenant continues to be so prevented from using, and such Service Interruption renders all does not use, the Premises, or a material portion thereof, in the proportion that the rentable area of the portion of the Premises unusable for Tenant's normal business purposes permitted hereunder that Tenant is prevented from using, and Tenant does not actually use use, bears to the affected total rentable area of the Premises. However, in the event that Tenant is prevented from conducting, and does not conduct, its business in any portion of the Premises as a result thereof, for a continuous period of five time in excess of the Eligibility Period, and the remaining portion of the Premises is not sufficient to allow Tenant to effectively conduct its business therein, and if Tenant does not conduct its business from such remaining portion, then for such time after expiration of the Eligibility Period during which Tenant is so prevented from effectively conducting its business therein, the Rent for the entire Premises (5) or more consecutive business days following written notice thereof from Tenant (except in the event of Force Majeure or any act or omission including all of Tenant’s parking charges) (the “Service Interruption Eligibility Period”), then, as Tenant's sole remedy in connection with such Service Interruption, Base Rent due under this Lease shall be abated abated; provided, however, if Tenant reoccupies and conducts its business from any portion of the Premises during such period, the Rent (including parking charges) allocable to such reoccupied portion, based on the proportion that the affected rentable area of such reoccupied portion of the Premises bears to the entire Premises (provided, however, that if the affected portion of the Premises is such that Tenant cannot operate for its normal business purposes permitted hereunder from, and does not actually use, the entirety total rentable area of the Premises, then all Base Rent shall so xxxxx) be payable by Tenant from the expiration of date such business operations commence. Notwithstanding the Service Interruption foregoing, the Eligibility Period until shall not be applicable to the earlier extent that the abatement of Tenant’s Rent (iincluding parking charges) during the date Eligibility Period is covered by insurance obtained by Landlord as part of Operating Expenses. If Tenant’s right to abatement occurs during the Service Interruption is corrected and (ii) Free Rent Period, then the date Tenant is able to use Free Rent Period shall be extended for the affected portion number of days that the Premises for its normal business purposes..abatement period overlapped the Free Rent Period.
Appears in 1 contract
