Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on the next date for the payment of Rent after Lessor makes such judgment, Lessee shall pay to Lessor the Rent due on that date plus the Casualty Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and any other sums due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor). Upon making such payment in respect of any item of the Equipment, this Lease and the obligation to make future Rent payments shall terminate solely with respect to the items of Equipment paid for.
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Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for., but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor’s right, title and interest in the Lost Equipment, “AS IS WHERE IS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the Total Invoice Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair actually incurred by Lessee, as established to Lessor’s satisfaction. LEASE AGREEMENT — TRUE LEASE
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Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") At all times during the term of this Lease, then on Lessee shall indemnify and hold Lessor harmless for losses arising from the loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and Lessee shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and all causes, other than a Total Loss, so as to cause it to be in the condition and repair required by this Lease. (d) A “Total Loss” shall be deemed to have occurred to an item of Equipment upon: (1) the actual or constructive total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority. On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty greater of the (i) Stipulated Loss Value of or (ii) the entire amount of insurance proceeds received by Lessee in connection with any Total Loss or other loss or damage to the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less the Lost Equipment. Notwithstanding anything to the contrary provided herein, to the extent any insurance proceeds actually paid are received by Lessee in connection with the Equipment, such proceeds shall be immediately remitted to Lessor)Lessor to be credited against the amounts owed under this Lease, as determined by Lessor in its sole and absolute discretion. Upon making such payment, (i) the balance owed under the Lease shall not be re-amortized; rather, the payment shall be applied to amounts due under the Lease in respect inverse chronological order of the Lease termination date, commencing first with the Termination Value (defined below); (ii) Lessee shall remain liable for, and pay as and when due, all future Basic Rent and all Other Payments until paid in full in accordance with the terms of this Lease, and (iii) Lessor shall terminate its interest in any Lost Equipment to the extent it is paid off in full as determined by Xxxxxx, “AS IS WHERE IS”, and “WITH ALL FAULTS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the portion of the Funding Amount allocated to the Lost Equipment as determined by Lessor in its sole discretion, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of the Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section 12, Lessor shall either (1) credit such proceeds against any amounts owed by Lessee under the Lease and in inverse chronological order of the obligation to make future Rent payments shall terminate solely Lease termination date, commencing first with the Termination Value (defined below), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the items amount of Equipment paid forthe costs of repair actually incurred by Xxxxxx, as established to Lessor’s satisfaction.
Appears in 1 contract
Samples: Master Lease Agreement (Faraday Future Intelligent Electric Inc.)
Loss and Damage. Lessee hereby assumes and (a) The Borrowers shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage, or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Equipment Financing Document in any such event. (b) The Borrowers shall provide prompt written notice to Trinity of any Total Loss or any material damage to the Equipment. The Borrowers shall provide any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Parent shall or shall cause the applicable Borrower to repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoeverit to be in the condition and repair required by this Agreement. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallthe loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next payment date for following a Total Loss (a “Loss Payment Date”), (i) the payment of Rent after Lessor makes such judgment, Lessee Borrowers shall jointly and severally pay to Lessor Trinity the Rent Basic Payments due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to the Lost Equipment or (ii) if applicable, notify Trinity in writing that the Borrowers have received or reasonably expect to receive proceeds of insurance with respect to the Lost Equipment (less any insurance proceeds actually paid provided that (x) the Borrowers shall continue to Lessortimely make all Basic Payments and Other Payments with respect to the Lost Equipment as they become due and payable and (y) if the Borrowers have not replaced such Lost Equipment and delivered an update to the Schedule that includes substantially equivalent equipment, with substantially the same value, acceptable to Trinity, within three (3) months after the date of the date of the casualty event (the “Replacement End Date”), then the Borrowers shall make the payments specified clause (i) as if the Total Loss had occurred on the Replacement End Date. Upon making such payment in respect of any item of payment, the Equipment, this Lease and the Borrowers’ obligation to make pay future Rent payments shall terminate solely with respect to the items of Equipment paid for.Basic Payments
Appears in 1 contract
Samples: Master Equipment Financing Agreement (Rocket Lab USA, Inc.)
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next Rent payment date for the payment of Rent after Lessor makes such judgmentthat is within sixty-five (65) days following a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment the Lost Equipment. From the date the Total Loss occurs until such time as all sums set forth in this clause (less any insurance proceeds actually d) are paid in full to Lessor), Lessee shall continue to pay Rent to Lessor in accordance with the terms of this Lease. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for., but Lessee shall remain liable for, and
Appears in 1 contract
Loss and Damage. Lessee hereby assumes and (a) Company shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Equipment Financing Document in any such event. (b) Company shall provide prompt written notice to Trinity of any Total Loss (as such term is hereinafter defined) or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Company shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss (as such term is hereinafter defined), so as to cause whatsoeverit to be in the condition and repair required by this Agreement. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and (d) A "Total Loss" shall be absolute during deemed to have occurred to an item of Equipment upon the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallthe loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged . On the next payment date following a Total Loss (any such occurrence being herein referred to as a "Total LossLoss Payment Date") during the term of this Lease), then on the next date for the payment of Rent after Lessor makes such judgment, Lessee Company shall pay to Lessor Trinity the Rent Basic Payments due on that date plus the Casualty Stipulated Loss Value (as such term is hereinafter defined) of the item or items of the Equipment with respect to which the Total Loss has occurred and (the "Lost Equipment"), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the Company's obligation to make pay future Rent payments Basic Payments shall terminate solely with respect to the items of Lost Equipment so paid for, but Company shall remain liable for, and pay as and when due, all Other Payments. As used in this Agreement, "Stipulated Loss Value" shall mean, with respect to all or any item of Equipment on a Schedule, as of the Loss Payment Date, an amount equal to the present value of all payments due (including the Basic Payment or Other payments, as applicable), past due or to become due under the Schedule discounted from their respective due dates utilizing a discount rate of two (2) percent. If only part of the Equipment is Lost Equipment, then the Stipulated Loss Value will be the percentage value of the Lost Equipment to the total value of the Equipment listed on the respective Schedule and the remaining payment will be adjusted accordingly. (e) Trinity shall be under no duty to Company to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Trinity receives a payment under an insurance policy required under this Agreement in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Company shall have complied with the applicable provisions of this Section, Trinity shall either (1) if received pursuant to a Total Loss, remit such proceeds to Company up to an amount equal to the amount paid by Company to Trinity as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Company pursuant to Section 13(d), or (2) if received with respect to repairs to be made pursuant to Section 13(c), remit such proceeds to Company up to an amount equal to the amount of the costs of repair.
Appears in 1 contract
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") At all times during the term of this Lease, then on Lessee shall indemnify and hold Lessor harmless for losses arising from the loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and Lessee shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and all causes, other than a Total Loss, so as to cause it to be in the condition and repair required by this Lease. (d) A “Total Loss” shall be deemed to have occurred to an item of Equipment upon: (1) the actual or constructive total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority. On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty greater of the (i) Stipulated Loss Value of or (ii) the entire amount of insurance proceeds received by Lessee in connection with any Total Loss or other loss or damage to the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less the Lost Equipment. Notwithstanding anything to the contrary provided herein, to the extent any insurance proceeds actually paid are received by Lessee in connection with the Equipment, such proceeds shall be immediately remitted to Lessor)Lessor to be credited against the amounts owed under this Lease, as determined by Lessor in its sole an absolute discretion. Upon making such payment, (i) the balance owed under the Lease shall not be re-amortized; rather, the payment shall be applied to amounts due under the Lease in respect inverse chronological order of the Lease termination date, commencing first with the Termination Value (defined below); (ii) Lessee shall remain liable for, and pay as and when due, all future Basic Rent and all Other Payments until paid in full in accordance with the terms of this Lease, and (iii) Lessor shall terminate its interest in any Lost Equipment to the extent it is paid off in full as determined by Lessor, "AS IS WHERE IS", and “WITH ALL FAULTS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, "Stipulated Loss Value" shall mean the product of the portion of the Total Invoice Cost allocated to the Lost Equipment as determined by Lessor in its sole discretion, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of the Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) credit such proceeds against any amounts owed by Lessee under the Lease and in inverse chronological order of the obligation to make future Rent payments shall terminate solely Lease termination date, commencing first with the Termination Value (defined below), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the items amount of Equipment paid forthe costs of repair actually incurred by Lessee, as established to Lessor’s satisfaction.
Appears in 1 contract
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for, but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor’s right, title and interest in the Lost Equipment, “AS IS WHERE IS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the Total Invoice Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair actually incurred by Lessee, as established to Lessor’s satisfaction.
Appears in 1 contract
Samples: Master Lease Agreement (Advanced Environmental Recycling Technologies Inc)
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event, (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges, (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for., but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor’s right, title and interest in the Lost Equipment, “AS IS WHERE IS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the Total Invoice Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the original term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. If Lessee exercises its option to renew the term of a Schedule, the Stipulated Loss Value applicable during such renewal term shall be determined by mutual agreement of Lessor and Lessee as evidenced by an amended Schedule of Stipulated Loss Values to be incorporated in such Schedule, (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage but upon request from Lessee, Lessor shall assign to Lessee all of Lessor’s right, title and interest in any such claim (subject
Appears in 1 contract
Samples: Master Operating Lease Agreement (C&J Energy Services, Inc.)
Loss and Damage. (a) Lessee hereby assumes and shall agrees to bear the entire risk of direct loss with respect to any damage, destruction, loss, theft, or governmental taking of any Leased Item, whether partial or complete and consequential loss and damage to the Equipment from whether or not through any and every cause whatsoeverdefault or neglect of Lessee. Except as provided in this Section 7, no such event shall relieve Lessee of its obligation to pay Rent hereunder. (b) If any Leased Item is damaged, Lessee must promptly notify Lessor and within 60 days of such damage shall, at its expense, cause such repairs to be made as are necessary to return such Leased Item to its previous condition. Lessee shall then be entitled to receive from Lessor or Assignee, as the case may be, any insurance proceeds received or in connection with such damage. (c) In the event that any Leased Item is destroyed, damaged beyond repair, lost, stolen or taken by governmental action for discharge upon a stated period extending beyond the term of this Master Equipment Lease (an "Event of Loss"), Lessee must promptly notify Lessor and Assignee and pay to Lessor or Assignee, as the case may be, on the next Rent payment date following the Event of Loss, an amount equal to the Casualty Value set forth in Exhibit "E" of such Leased Item in effect on the date of Event of Loss and all Rent accrued on such item up to the date of payment. Upon payment of Casualty Loss Valuesuch amounts, no loss or damage Lessee's obligation to pay further Rent will cease with respect to that Leased Item (but not with respect to the Equipment remaining Equipment) and Lessee will be entitled to receive any insurance proceeds or any part thereof shall release other recovery received by Lessor or impair any obligations Assignee in connection with such Event of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereofLoss. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. (d) In the event of loss a governmental taking of a Leased Item for an indefinite period or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as for a "Total Loss") during stated period which does not extend beyond the term of this Leasethe applicable Promissory Note and Equipment Schedule(s), then on the next date for the payment of Rent after Lessor makes such judgment, Lessee shall pay to Lessor the Rent due on that date plus the Casualty Loss Value all obligations of the item or items of the Equipment Lessee with respect to which the Total Loss has occurred and any other such Leased Item (including payment of Rent) will continue. So long as Lessee is not in default hereunder, Lessor will pay to Lessee all sums due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor). Upon making received by Lessor by reason of such payment in respect of any item of the Equipment, this Lease and the obligation to make future Rent payments shall terminate solely with respect governmental taking up to the items of Equipment amount paid forby Lessee during such period.
Appears in 1 contract
Samples: Master Lease Agreement (Dunes Hotels & Casinos Inc)
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoeverEquipment. Except as provided in this Section for discharge upon payment of Casualty Stipulated Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages Claims resulting to Lessee by reason of any failure of or delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss .355 or destruction of any other property resulting from the Equipment. In the event of loss or damage to any item of Equipment which does not constitute a Total Loss (as hereinafter defined), Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment to the condition required by this Lease. Provided that no default or Default has occurred and is continuing, upon receipt of evidence reasonably satisfactory to Lessor of completion of such repairs, Lessor will apply any kind insurance proceeds received by Lessor on account of such loss to the cost of repairs. Upon the occurrence of the actual or constructive total loss of any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallor the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment or damage to any item of the Equipment to such extent as shall becomemake repair thereof uneconomical or shall render any item of the Equipment permanently unfit for normal use for any reason whatsoever, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or taking of use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged authority (as established to the reasonable satisfaction of Lessor; any such occurrence being herein referred to as a "Total Loss") ), during the term of this Lease, then on Lessee shall give prompt notice thereof to Lessor. On the next date for the payment of Rent after Lessor makes such judgmentrent, Lessee shall pay to Lessor the Rent rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and any other sums due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor). Upon making such payment in respect of any item of the Equipment, this Lease and the obligation to make future Rent payments shall terminate solely with respect to the items of Equipment paid for.other
Appears in 1 contract
Samples: Master Lease Agreement (3ci Complete Compliance Corp)
Loss and Damage. Lessee hereby assumes and Borrower shall bear the entire risk of direct and consequential loss and loss, theft, damage to or destruction of the Equipment (including any condemnation, seizure, or requisition of title or use) (collectively, a “Casualty Event”) from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of No Casualty Loss Value, no loss or damage to the Equipment or Event shall relieve Borrower from making any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, Payment or any other damages resulting to Lessee by reason obligations hereunder. Borrower shall immediately notify Lender of any delay insurance claim and of any Casualty Event resulting in delivery two hundred fifty thousand dollars ($250,000.00) or any delay caused by any non-performancemore of damage to Equipment, defective performance, or breakdown and inform Lender of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item circumstances and extent of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallCasualty Event and, at the option of LessorLender, at Lessee's expense (less any insurance proceeds actually paid): Borrower shall (a) place such Equipment in good repair and working order so that the Equipment is of at least the same in good repairutility, condition value and working ordermarketability; or (b) replace the same such Equipment with like Equipment that is at least of the same utility, value and marketability, with clear title to the replacement Equipment in Borrower and not subject to any security interest by any other party other than Lender; or equivalent make and (c) promptly pay to Lender an amount under the applicable Agreement equal to the Payoff Amount. As used herein, “Payoff Amount” means an amount, calculated by Lender as of the same date of payment of the Payoff Amount, equal to the sum of (i) any accrued and unpaid Payments (including the Early Termination Fee (without duplication), if any due, on such date) or later model, other amounts due under or with respect to any Agreement; plus (ii) all Payments due and payable after such date. Lender may require that Borrower perform option (c) hereof regardless of whether all or only a portion of the Equipment subject to an Agreement experiences a Casualty Event. Any proceeds received by Lender or Borrower as the result of a Casualty Event with equal respect to any Item (including insurance proceeds and proceeds of condemnation or greater value and utility, and in good repair, condition and working order. The foregoing notwithstandingrequisition) shall be applied at Lender’s election, in whole or in part, to (a) repair or replace such Item or any part thereof, or (b) satisfy any of any of Borrower’s Obligations. Borrower shall also pay any costs and expenses (including reasonable and documented Attorneys’ Fees or the event that cost to engage an attorney even if no suit or claim is filed) incurred by Lender in connection with its exercise or protection of its rights and interests hereunder, including without limitation titling costs or other fees to effectively enforce Lender’s interest in any item of the Equipment shall becomeEquipment. If no Event of Default has occurred and is continuing and no event or condition has occurred that with notice and/or passage of time could constitute an Event of Default, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on the next date for upon the payment of Rent after Lessor makes such judgment, Lessee shall pay to Lessor the Rent due on that date plus the Casualty Loss Value of the item or items of the Equipment Payoff Amount with respect to which any Agreement, and the Total Loss has occurred payment of any and any all other sums amounts due hereunder and payable to Lender hereunder, Lender’s security interest in such Items shall be automatically released; provided that Borrower’s Obligations with respect to that Equipment (less any insurance proceeds actually paid to Lessor). Upon making such payment in respect of any item of the Equipmenttaxes, this Lease indemnities and the obligation to make future Rent payments reimbursements hereunder shall terminate solely survive with respect to the items of Equipment paid forall periods prior to such payment.
Appears in 1 contract
Samples: Financing Agreement (Stronghold Digital Mining, Inc.)
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") At all times during the term of this Lease, then on Lessee shall indemnify and hold Lessor harmless for losses arising from the loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and Lessee shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and all causes, other than a Total Loss, so as to cause it to be in the condition and repair required by this Lease. (d) A “Total Loss” shall be deemed to have occurred to an item of Equipment upon: (1) the actual or constructive total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority. On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty greater of the (i) Stipulated Loss Value of or (ii) the entire amount of insurance proceeds received by Lessee in connection with any Total Loss or other loss or damage to the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less the Lost Equipment. Notwithstanding anything to the contrary provided herein, to the extent any insurance proceeds actually paid are received by Lessee in connection with the Equipment, such proceeds shall be immediately remitted to Lessor)Lessor to be credited against the amounts owed under this Lease, as determined by Lessor in its sole and absolute discretion. Upon making such payment, (i) the balance owed under the Lease shall not be re-amortized; rather, the payment shall be applied to amounts due under the Lease in respect inverse chronological order of the Lease termination date, commencing first with the Termination Value (defined below); (ii) Lessee shall remain liable for, and pay as and when due, all future Basic Rent and all Other Payments until paid in full in accordance with the terms of this Lease, and (iii) Lessor shall terminate its interest in any Lost Equipment to the extent it is paid off in full as determined by Xxxxxx, “AS IS WHERE IS”, and “WITH ALL FAULTS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the portion of the Funding Amount allocated to the Lost Equipment as determined by Lessor in its sole discretion, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of the Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) credit such proceeds against any amounts owed by Lessee under the Lease and in inverse chronological order of the obligation to make future Rent payments shall terminate solely Lease termination date, commencing first with the Termination Value (defined below), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the items amount of Equipment paid forthe costs of repair actually incurred by Xxxxxx, as established to Lessor’s satisfaction. Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[*****]”) because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.
Appears in 1 contract
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for., but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor’s right, title and interest in the Lost Equipment, “AS IS WHERE IS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean the product of the Total Invoice Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the original term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. If Lessee exercises its option to renew the term of a Schedule, the Stipulated Loss Value applicable during such renewal term shall be determined by mutual agreement of Lessor and Lessee as evidenced by an amended Schedule of Stipulated Loss Values to be incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage but upon request from Lessee, Lessor shall assign to Lessee all of Lessor’s right, title and interest in any such claim (subject
Appears in 1 contract
Samples: Master Operating Lease Agreement (C&J Energy Services, Inc.)
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A "TOTAL LOSS" shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged . On the next rent payment date following a Total Loss (any such occurrence being herein referred to as a "Total LossLOSS PAYMENT DATE") during the term of this Lease, then on the next date for the payment of Rent after Lessor makes such judgment), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the "LOST Equipment"), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee's obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for, but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor's right, title and interest in the Lost Equipment, "AS IS WHERE IS", but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, "STIPULATED LOSS VALUE" shall mean the product of the Total Invoice Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair actually incurred by Lessee, as established to Lessor's satisfaction.
Appears in 1 contract
Samples: Master Lease Agreement (Meadowbrook Insurance Group Inc)
Loss and Damage. Lessee hereby assumes and (a) Company shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Equipment Financing Document in any such event. (b) Company shall provide prompt written notice to Trinity of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Company shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoeverit to be in the condition and repair required by this Agreement. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallthe loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee Company shall pay to Lessor Trinity the Rent Basic Payments due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the Company’s obligation to make pay future Rent payments Basic Payments shall terminate solely with respect to the items of Lost Equipment so paid for, but Company shall remain liable for, and pay as and when due, all Other Payments. As used in this Agreement, “Stipulated Loss Value” shall mean, with respect to any Equipment on a Schedule, as of the Loss Payment Date, the product of (i) the sum of any accrued and unpaid Payments, plus the present value as of such date of the total Basic Payments for the then remaining term of such Schedule, plus the present value of the Other Payments (other than Basic Payments) to become due during the balance of the term of the applicable Schedule, including amounts such as future taxes and (ii) the percentage of the Total Invoice Cost of the Lost Equipment divided by the Total Invoice Cost applicable to such Schedule. After the final payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last payment date during the applicable term of such Schedule. (e) Trinity shall be under no duty to Company to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Trinity receives a payment under an insurance policy required under this Agreement in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Company shall have complied with the applicable provisions of this Section, Trinity shall either (1) if received pursuant to a Total Loss, remit such proceeds to Company up to an amount equal to the amount paid by Company to Trinity as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Company pursuant to Section 13(d), or (2) if received with respect to repairs to be made pursuant to Section 13(c), remit such proceeds to Company up to an amount equal to the amount of the costs of repair.
Appears in 1 contract
Samples: Master Equipment Financing Agreement (Environmental Impact Acquisition Corp)
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A "Total Loss" shall be absolute during deemed to have occurred to an item of Equipment upon: (1) the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall(2) the loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or rendersit unfit for normal use, in Lessor's judgmentor (3) the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged . On the next rent payment date following a Total Loss (any such occurrence being herein referred to as a "Total LossLoss Payment Date") during the term of this Lease, then on the next date for the payment of Rent after Lessor makes such judgment), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the "Lost Equipment"), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee's obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for., but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor's right, title and interest in the Lost Equipment, "AS IS WHEREIS", but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, "Stipulated Loss Value" shall mean the product of the Total Invoice Cost of the Lost Equipment, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any personin connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair actually incurred by Lessee, as established to Lessor's satisfaction. AJM 202425B.v2 121912010 10:46 AM :TL
Appears in 1 contract
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoeverit to be in the condition and repair required by this Lease . Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallthe loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for., but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor’s right, title and interest in the Lost Equipment “AS IS WHERE IS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean, with respect to any Equipment on a Schedule, as of the Loss Payment Date, the product of (i) the sum of any accrued and unpaid Rent, plus the present value as of such date of the total Basic Rent for the then remaining term of such Schedule, plus Lessor’s estimate at the time the Schedule was entered into of Lessor’s residual interest in the Equipment, plus the present value of the Other Payments (other than Basic Rent) to become due during the balance of the term of the applicable Schedule, including amounts such as future taxes and (ii) the percentage of the Total Cost of the Lost Equipment divided by the Total Cost applicable to such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs to be made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair. LEASE AGREEMENT
Appears in 1 contract
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A "Total Loss" shall be absolute during deemed to have occurred to an item of Equipment upon the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallthe loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged . On the next rent payment date following a Total Loss (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on the next date for the payment of Rent after Lessor makes such judgmentLoss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the "Lost Equipment"), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee's obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for, but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor's right, title and interest in the Lost Equipment "AS IS WHERE IS", but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean, with respect to any Equipment on a Schedule, as of the Loss Payment Date, the product of (i) the sum of any accrued and unpaid Rent, plus the present value as of such date of the total Basic Rent for the then remaining term of such Schedule, plus Lessor’s reasonable estimate at the time the Schedule was entered into of Lessor’s residual interest in the Equipment, plus the present value of the Other Payments (other than Basic Rent) to become due during the balance of the term of the applicable Schedule, including amounts such as future taxes and (ii) the percentage of the Total Invoice Cost of the Lost Equipment divided by the Total Invoice Cost applicable to such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs to be made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair.
Appears in 1 contract
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment or loss of Casualty Loss Value, no loss or damage to the Equipment or any part item thereof from any cause whatsoever, whether or not insured against, from and after the date the Equipment is delivered to the Equipment Location until returned to Lessor. No loss, theft, damage or destruction of the Equipment Master Lease Agreement Rev. 08-04-2017 Page 6 shall release alter or impair relieve Lessee of any obligations of Lessee obligation under this Lease, which shall continue in full force and effect and shall be absolute during the term hereofeffect. Lessee agrees that to give Lessor shall not incur prompt notice of any liability damage to Lessee for any or loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item part of the Equipment, Lessee shall give prompt notice thereof immediately place the same in good repair at Lessee’s expense. In the event of damage to Lessor or loss of the Equipment or any item thereof, and then irrespective of payment from any insurance coverage maintained by the Lessee, but applying full credit therefor, Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same Equipment in good repair, condition and working order; order or (b) replace the same Equipment with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and identical equipment in good repair, condition and working order. The foregoing notwithstandingorder and transfer clear title to such replacement equipment to Lessor, whereupon such replacement equipment shall be deemed the Equipment for all purposes hereof, or (c) pay Lessor in cash the following: (i) all amounts due by Lessee to Lessor with respect to this Lease up to the date of the loss; plus (ii) the total amounts due for the remaining term of this Lease attributable to said items; plus (iii) Lessor’s estimate of Lessor’s residual interest in the event that Equipment as of the Commencement Date (the “Residual Value”), which will be determined at Lessor’s sole discretion. Upon Lessor’s receipt of such payment, this Lease shall terminate only with respect to such Equipment so paid for, and Lessee shall become entitled to title thereto, AS IS, WHERE IS, and without any item warranty whatsoever, express or implied. Proceeds of insurance shall be paid to Lessor with respect to such repairable damage to the Equipment and shall, at the election of Lessor, be applied either to the repair of the Equipment by payment by Lessor directly to the party completing the repairs, or to the reimbursement of Lessee for the cost of such repairs; provided, however, that Lessor shall become, in Lessor's judgment, worn out, lost, stolen, taken by have no obligation to make such payment or any governmental authority, destroyed or irreparably damaged (any part thereof until receipt of such occurrence being herein referred evidence as Lessor shall deem satisfactory that such repairs have been completed and further provided that Lessor may apply such proceeds to as a "Total Loss") during the term of this Lease, then on the next date for the payment of Rent after Lessor makes such judgment, Lessee shall pay any rent or other sum due or to Lessor the Rent due on that date plus the Casualty Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and any other sums become due hereunder if at the time such proceeds are received by Lessor there shall have occurred any Event of Default or any event which with respect to that Equipment (less any insurance proceeds actually paid to Lessor). Upon making such payment in respect lapse of any item time or notice, or both, would become and Event of the Equipment, this Lease and the obligation to make future Rent payments shall terminate solely with respect to the items of Equipment paid forDefault.
Appears in 1 contract
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment or loss of Casualty Loss Value, no loss or damage to the Equipment or any part item thereof from any cause whatsoever, whether or not insured against, from and after the date the Equipment is delivered to the Equipment Location until returned to Lessor. No loss, theft, damage or destruction of the Equipment Master Lease AgreementRev. 08-04-2017Page 6 shall release alter or impair relieve Lessee of any obligations of Lessee obligation under this Lease, which shall continue in full force and effect and shall be absolute during the term hereofeffect. Lessee agrees that to give Lessor shall not incur prompt notice of any liability damage to Lessee for any or loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item part of the Equipment, Lessee shall give prompt notice thereof immediately place the same in good repair at Lessee’s expense. In the event of damage to Lessor or loss of the Equipment or any item thereof, and then irrespective of payment from any insurance coverage maintained by the Lessee, but applying full credit therefor, Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same Equipment in good repair, condition and working order; order or (b) replace the same Equipment with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and identical equipment in good repair, condition and working order. The foregoing notwithstandingorder and transfer clear title to such replacement equipment to Lessor, whereupon such replacement equipment shall be deemed the Equipment for all purposes hereof, or (c) pay Lessor in cash the following: (i) all amounts due by Lessee to Lessor with respect to this Lease up to the date of the loss; plus (ii) the total amounts due for the remaining term of this Lease attributable to said items; plus (iii) Lessor’s estimate of Lessor’s residual interest in the event that Equipment as of the Commencement Date (the “Residual Value”), which will be determined at Lessor’s sole discretion. Upon Lessor’s receipt of such payment, this Lease shall terminate only with respect to such Equipment so paid for, and Lessee shall become entitled to title thereto, AS IS, WHERE IS, and without any item warranty whatsoever, express or implied. Proceeds of insurance shall be paid to Lessor with respect to such repairable damage to the Equipment and shall, at the election of Lessor, be applied either to the repair of the Equipment by payment by Lessor directly to the party completing the repairs, or to the reimbursement of Lessee for the cost of such repairs; provided, however, that Lessor shall become, in Lessor's judgment, worn out, lost, stolen, taken by have no obligation to make such payment or any governmental authority, destroyed or irreparably damaged (any part thereof until receipt of such occurrence being herein referred evidence as Lessor shall deem satisfactory that such repairs have been completed and further provided that Lessor may apply such proceeds to as a "Total Loss") during the term of this Lease, then on the next date for the payment of Rent after Lessor makes such judgment, Lessee shall pay any rent or other sum due or to Lessor the Rent due on that date plus the Casualty Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and any other sums become due hereunder if at the time such proceeds are received by Lessor there shall have occurred any Event of Default or any event which with respect to that Equipment (less any insurance proceeds actually paid to Lessor). Upon making such payment in respect lapse of any item time or notice, or both, would become and Event of the Equipment, this Lease and the obligation to make future Rent payments shall terminate solely with respect to the items of Equipment paid forDefault.
Appears in 1 contract
Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and . (d) A “Total Loss” shall be absolute during deemed to have occurred to an item of Equipment upon the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any actual or constructive total loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shallthe loss, at the option disappearance, theft or destruction of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment item of the same Equipment, or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that damage to any item of the Equipment shall becomethat is uneconomical to repair or renders it unfit for normal use, in Lessor's judgmentor the condemnation, worn outconfiscation, lostrequisition, stolenseizure, taken forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") during the term of this Lease, then on . On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty Stipulated Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessor)the Lost Equipment. Upon making such payment in respect of any item of the Equipmentpayment, this Lease and the (i) Lessee’s obligation to make pay future Basic Rent payments shall terminate solely with respect to the items of Lost Equipment so paid for, but Lessee shall remain liable for, and pay as and when due, all Other Payments, and (ii) Lessor shall convey to Lessee all of Lessor’s right, title and interest in the Lost Equipment “AS IS WHERE IS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, “Stipulated Loss Value” shall mean, with respect to any Equipment on a Schedule, as of the Loss Payment Date, the product of (i) the sum of any accrued and unpaid Rent, plus the present value as of such date of the total Basic Rent for the then remaining term of such Schedule, plus Lessor’s reasonable estimate at the time the Schedule was entered into of Lessor’s residual interest in the Equipment, plus the present value of the Other Payments (other than Basic Rent) to become due during the balance of the term of the applicable Schedule, including amounts such as future taxes and (ii) the percentage of the Total Invoice Cost of the Lost Equipment divided by the Total Invoice Cost applicable to such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) if received pursuant to a Total Loss, remit such proceeds to Lessee up to an amount equal to the amount paid by Lessee to Lessor as the Stipulated Loss Value, or credit such proceeds against any amounts owed by Lessee pursuant to Section 12(d), or (2) if received with respect to repairs to be made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the amount of the costs of repair.
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Loss and Damage. (a) At all times until the Equipment is returned to Lessor in accordance with this Lease, Lessee hereby assumes and shall bear the entire risk of direct loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and consequential loss and shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the Insurer or Supplier, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and every all causes, other than a Total Loss, so as to cause whatsoever. Except as provided it to be in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under condition and repair required by this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (ad) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a A "Total Loss") during the term " shall be deemed to have occurred to an item of this Lease, then on the next date for the payment of Rent after Lessor makes such judgment, Lessee shall pay to Lessor the Rent due on that date plus the Casualty Loss Value of the item or items of the Equipment with respect to which the Total Loss has occurred and any other sums due hereunder with respect to that Equipment (less any insurance proceeds actually paid to Lessorthe "Lost Equipment"). Upon making such payment in respect , upon: (1) the actual or constructive total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the obligation applicable provisions of this Section, Lessor shall either (1) credit such proceeds against any amounts owed by Lessee pursuant to make future Rent payments shall terminate solely Section 12(a), or (2) if received with respect to repairs to be made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the items amount of Equipment paid forthe costs of repair.
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Samples: Master Lease Agreement (Iceweb Inc)
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") At all times during the term of this Lease, then on Lessee shall indemnify and hold Lessor harmless for losses arising from the loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and Lessee shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and all causes, other than a Total Loss, so as to cause it to be in the condition and repair required by this Lease. (d) A “Total Loss” shall be deemed to have occurred to an item of Equipment upon: (1) the actual or constructive total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority. On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty greater of the (i) Stipulated Loss Value of or (ii) the entire amount of insurance proceeds received by Lessee in connection with any Total Loss or other loss or damage to the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less the Lost Equipment. Notwithstanding anything to the contrary provided herein, to the extent any insurance proceeds actually paid are received by Lessee in connection with the Equipment, such proceeds shall be immediately remitted to Lessor)Lessor to be credited against the amounts owed under this Lease, as determined by Lessor in its sole and absolute discretion. Upon making such payment, (i) the balance owed under the Lease shall not be re-amortized; rather, the payment shall be applied to amounts due under the Lease in respect inverse chronological order of the Lease termination date, commencing first with the Termination Value (defined below); (ii) Lessee shall remain liable for, and pay as and when due, all future Basic Rent and all Other Payments until paid in full in accordance with the terms of this Lease, and (iii) Lessor shall terminate its interest in any Lost Equipment to the extent it is paid off in full as determined by Lessor, "AS IS WHERE IS", and “WITH ALL FAULTS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, "Stipulated Loss Value" shall mean the product of the portion of the Funding Amount allocated to the Lost Equipment as determined by Lessor in its sole discretion, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of the Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) credit such proceeds against any amounts owed by Lessee under the Lease and in inverse chronological order of the obligation to make future Rent payments shall terminate solely Lease termination date, commencing first with the Termination Value (defined below), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the items amount of Equipment paid forthe costs of repair actually incurred by Lessee, as established to Lessor’s satisfaction.
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Loss and Damage. Lessee hereby assumes and shall bear the entire risk of direct and consequential loss and damage to the Equipment from any and every cause whatsoever. Except as provided in this Section for discharge upon payment of Casualty Loss Value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations of Lessee under this Lease, which shall continue in full force and effect and shall be absolute during the term hereof. Lessee agrees that Lessor shall not incur any liability to Lessee for any loss of business, loss of profits, expenses, or any other damages resulting to Lessee by reason of any delay in delivery or any delay caused by any non-performance, defective performance, or breakdown of the Equipment, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipment. In the event of loss or damage of any kind to any item of the Equipment, Lessee shall give prompt notice thereof to Lessor and then Lessee shall, at the option of Lessor, at Lessee's expense (less any insurance proceeds actually paid): (a) place the same in good repair, condition and working order; or (b) replace the same with like Equipment of the same or equivalent make and of the same or later model, and with equal or greater value and utility, and in good repair, condition and working order. The foregoing notwithstanding, in the event that any item of the Equipment shall become, in Lessor's judgment, worn out, lost, stolen, taken by any governmental authority, destroyed or irreparably damaged (any such occurrence being herein referred to as a "Total Loss") At all times during the term of this Lease, then on Lessee shall indemnify and hold Lessor harmless for losses arising from the loss, theft, confiscation, taking, unavailability, damage or partial destruction of the Equipment and Lessee shall not be released from its obligations under any Schedule or other Lease Document in any such event. (b) Lessee shall provide prompt written notice to Lessor of any Total Loss or any material damage to the Equipment. Any such notice must be provided together with any damage reports provided to any governmental authority, the insurer, and any documents pertaining to the repair of such damage, including copies of work orders, and all invoices for related charges. (c) Without limiting any other provision hereof, Lessee shall repair all damage to any item of Equipment from any and all causes, other than a Total Loss, so as to cause it to be in the condition and repair required by this Lease. (d) A “Total Loss” shall be deemed to have occurred to an item of Equipment upon: (1) the actual or constructive total loss of any item of the Equipment, (2) the loss, disappearance, theft or destruction of any item of the Equipment, or damage to any item of the Equipment that is uneconomical to repair or renders it unfit for normal use, or (3) the condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of any item of the Equipment or the imposition of any Lien thereon by any governmental authority. On the next rent payment date for the payment of Rent after Lessor makes such judgmentfollowing a Total Loss (a “Loss Payment Date”), Lessee shall pay to Lessor the Basic Rent due on that date plus the Casualty greater of the (i) Stipulated Loss Value of or (ii) the entire amount of insurance proceeds received by Lessee in connection with any Total Loss or other loss or damage to the item or items of the Equipment with respect to which the Total Loss has occurred and (the “Lost Equipment”), together with any other sums Other Payments due hereunder with respect to that Equipment (less the Lost Equipment. Notwithstanding anything to the contrary provided herein, to the extent any insurance proceeds actually paid are received by Lessee in connection with the Equipment, such proceeds shall be immediately remitted to Lessor)Lessor to be credited against the amounts owed under this Lease, as determined by Lessor in its sole an absolute discretion. Upon making such payment, (i) the balance owed under the Lease shall not be re-amortized; rather, the payment shall be applied to amounts due under the Lease in respect inverse chronological order of the Lease termination date, commencing first with the Termination Value (defined below); (ii) Lessee shall remain liable for, and pay as and when due, all future Basic Rent and all Other Payments until paid in full in accordance with the terms of this Lease, and (iii) Lessor shall terminate its interest in any Lost Equipment to the extent it is paid off in full as determined by Lessor, "AS IS WHERE IS", and “WITH ALL FAULTS”, but subject to the requirements of any third party insurance carrier in order to settle an insurance claim. As used in this Lease, "Stipulated Loss Value" shall mean the product of the portion of the Funding Amount allocated to the Lost Equipment as determined by Lessor in its sole discretion, times the percentage factor applicable to the Loss Payment Date, as set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. After the final rent payment date of the original term or any renewal term of a Schedule, the Stipulated Loss Value shall be determined as of the last rent payment date during the applicable term of such Schedule, and the applicable percentage factor shall be the last percentage factor set forth in the Schedule of Stipulated Loss Values incorporated in such Schedule. (e) Lessor shall be under no duty to Lessee to pursue any claim against any person in connection with a Total Loss or other loss or damage. (f) If Lessor receives a payment under an insurance policy required under this Lease in connection with any Total Loss or other loss of or damage to an item of the Equipment, and such payment is both unconditional and indefeasible, then provided Lessee shall have complied with the applicable provisions of this Section, Lessor shall either (1) credit such proceeds against any amounts owed by Lessee under the Lease and in inverse chronological order of the obligation to make future Rent payments shall terminate solely Lease termination date, commencing first with the Termination Value (defined below), or (2) if received with respect to repairs made pursuant to Section 12(c), remit such proceeds to Lessee up to an amount equal to the items amount of Equipment paid forthe costs of repair actually incurred by Lessee, as established to Lessor’s satisfaction.
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