Common use of Loss and Damage Clause in Contracts

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes the entire risk of direct and consequential loss of, or damage to, the Equipment from all causes. Except as provided in this Section for discharge upon payment of the full replacement 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 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 or destruction of any other property resulting from the Equipment. In the event of loss or damage to any item of the Equipment which does not constitute a Total Loss (as hereinafter defined), and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage to be applied by Lessee toward the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment to the condition required by this Lease. Notwithstanding anything to the contrary contained herein, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval of invoices for repairs to the Equipment.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes agrees to assume and bear the entire risk of direct and consequential any partial or complete loss of, or damage to, with respect to the Equipment from all causes. Except as provided in this Section for discharge upon payment any and every cause whatsoever including theft, loss, damage, destruction or governmental taking, whether or not such loss is covered by insurance or caused by any default or neglect of the full replacement 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 hereofLessee. Lessee agrees that to give Lessor prompt notice of any damage to or loss of any Equipment. All physical damage insurance proceeds shall not incur any liability be payable directly to Lessor. Following payment of such loss, and if no Event of Default as defined in Section 11 has occurred and remains continuing, Lessor will then: (a) transfer to Lessee for Lessor's rights to such Equipment "as-is, where-is and with all defects," without recourse and without representation or warranty, express or implied, other than a warranty that the Equipment is free and clear of any loss of business, loss of profits, expenses, or any other damages resulting liens created by Lessor; and (b) remit to Lessee by reason any physical damage insurance proceeds arising out of any failure of or delay such loss in delivery or any delay caused by any non-performance, defective performance, or breakdown excess of the Equipmentsum due the Lessor. Lessee shall determine in the exercise of its reasonable judgment whether the Equipment is damaged beyond repair, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipmentsubject to Lessor's approval. In the event of damage or loss which does not result in damage beyond repair or damage to any item a total loss of the Equipment which does not constitute a Total Loss (as hereinafter defined)or any item thereof, and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage cause the affected Equipment to be applied by Lessee toward the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment restored to the condition required by the terms of this Lease. Notwithstanding anything Upon completion of such repair and after supplying Lessor with satisfactory evidence thereof (and provided no Event of Default has occurred and remains continuing), Lessee shall be entitled to receive any insurance proceeds or other recovery to which Lessor would otherwise be entitled in connection with such loss up to the contrary contained hereinamount expended by Lessee in making the repair. Lessor shall not be obligated to undertake by litigation or otherwise the collection of any claim against any person for loss of, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval damage to, or governmental taking of invoices for repairs to the Equipment, but Lessor will cooperate with Lessee at Lessee's expense to pursue such claims. Except as expressly provided above, the total or partial destruction of any Equipment or Lessee's total or partial loss of use or possession thereof shall not release or relieve Lessee from its obligations under this Master Lease or any Schedule including the duty to pay the rent(s) herein provided.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes will at all times bear the entire risk of direct and consequential loss ofloss, theft, damage or damage to, destruction of the Equipment from all causes. Except as provided in this Section for discharge upon payment any cause whatsoever, and no loss, theft, damage or destruction of the full replacement value, no loss Equipment shall relieve Lessee of the obligation to pay rent or damage to the Equipment or comply with any part thereof shall release or impair any obligations of Lessee other obligation 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 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 or destruction of any other property resulting from the Equipment. In the event of loss or damage to any item Equipment, Lessee shall immediately place the same in good repaid at Lessee's expense. If Lessor determined that any Equipment is lost, stolen, destroyed or damaged beyond repair. Lessee shall at Lessee's option do one of the following: a. Replace the same with like Equipment in good repaid, acceptable to Lessor in which case title to such Equipment shall immediately vest in Lessor and this Lease will continue as though such event had not occurred; or b. Pay Lessor in cash the following: (i) All amounts due by Lessee to Lessor with respect to all affected Schedules up to the date of the loss; and (ii) The unpaid balance of the total amounts due for the remaining term of the affected Schedules attribute to said item, discounted to present value at a discount rate of 8% as of the date of loss; and (iii) The Lessor's estimate as of the time this Lease was entered into of Lessor's residual interest in the Equipment, discounted to present value at a discount rate of 8% as of the date of loss. Upon Lessor's receipt of payment as set forth above, Lessee shall be entitled to Lessor's interest in such Equipment "as is, where is" and without any warranty, express of implied from Lessor. If insurance proceeds are used to fully comply with this subparagraph, the balance of any such proceeds shall go to Lessee to compensate for loss of use of the Equipment which does not constitute a Total Loss (as hereinafter defined), and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage to be applied by Lessee toward for the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item remaining term of the Equipment to the condition required by this Lease. Notwithstanding anything to the contrary contained herein, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval of invoices for repairs to the Equipment.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes the entire risk No loss of direct and consequential loss of, or damage to, the Equipment from all causes. Except as provided in this Section for discharge upon payment of the full replacement value, no loss or damage to the Equipment or any part thereof shall release or impair any obligations obligation of Lessee under this LeaseAgreement, which shall continue in full force and effect and shall be absolute effect. Under no circumstances during the term hereofTerm shall Heavy Iron have any liability whatsoever hereunder for loss of use or for any indirect or consequential damages, losses and costs incurred by Lessee hereunder, including without limitation, as a result of delayed delivery or loss of use. Lessee agrees that Lessor Heavy Iron shall not incur any liability to Lessee for any loss of businessdirect, indirect or consequential damages, losses and costs, including without limitation, loss of profits, expenses, business or any other damages resulting to loss of profits incurred by Lessee by reason of any failure of or delay in delivery or any delay caused by any non-performance, defective performance, performance or breakdown of the Equipment, Equipment nor shall Lessor Heavy Iron at any time be responsible for personal injury or the loss or destruction of any other property resulting or arising directly or indirectly from the EquipmentEquipment during the Term. In the event of loss or damage of any kind whatsoever to any item unit of Equipment during the Term, Lessee shall have the option to either: (a) repair at its own cost and expense the unit(s) of Equipment so damaged, or (b) replace, at its cost, the said units of Equipment with new units of similar or improved specifications and value, free and clear title to which shall vest in Heavy Iron and such replacement units becoming part of the Equipment which does not constitute a Total Loss herein subject to this Agreement, or (as hereinafter defined), and provided Lessee is not in default, Lessor shall make available c) pay to Lessee any insurance proceeds received by Lessor on account Heavy Iron within thirty (30) days of such loss or damage to the value of all of the damaged units of Equipment as set forth in the Agreement. In such case all damaged units of Equipment shall be applied retained by Lessee toward and title in and to the repair or restoration damaged units of Equipment, shall be deemed to transfer to Lessee upon receipt by Heavy Iron of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment to the condition required by this Lease. Notwithstanding anything to the contrary contained herein, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval of invoices for repairs to the Equipmentpayment without further action or documentation.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes agrees to assume and bear the entire risk of direct and consequential any partial or complete loss of, or damage to, with respect to the Equipment from all causes. Except as provided in this Section for discharge upon payment any and every cause whatsoever including theft, loss, damage, destruction or governmental taking, whether or not such loss is covered by insurance or caused by any default or neglect of the full replacement 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 hereofLessee. Lessee agrees that to give Lessor prompt notice of any damage to or loss of any Equipment. All physical damage insurance proceeds shall not incur any liability be payable directly to Lessor. Following payment of such loss, and if no Event of Default as defined in Section 11 has occurred and remains continuing, Lessor will then: (a) transfer to Lessee for Lessor's rights to such Equipment "as-is, where-is and with all defects," without recourse and without representation or warranty, express or implied, other than a warranty that the Equipment is free and clear of any loss of business, loss of profits, expenses, or any other damages resulting liens created by Lessor; and (b) remit to Lessee by reason any physical damage insurance proceeds arising out of any failure of or delay such loss in delivery or any delay caused by any non-performance, defective performance, or breakdown excess of the Equipmentsum due the Lessor. Lessee shall determine in the exercise of its reasonable judgment whether the Equipment is damaged beyond repair, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipmentsubject to Lessor's approval. In the event of damage or loss which does not result in damage beyond repair or damage to any item a total loss of the Equipment which does not constitute a Total Loss (as hereinafter defined)or any item thereof, and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage cause the affected Equipment to be applied by Lessee toward the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment restored to the condition required by the terms of this Lease. Notwithstanding anything Upon completion of such repair and after supplying Lessor with satisfactory evidence thereof (and providing no Event of Default has occurred and remains continuing), Lessee shall be entitled to receive any insurance proceeds or other recovery to which Lessor would otherwise be entitled in connection with such loss up to the contrary contained hereinamount expended by Lessee in making the repair. Lessor shall not be obligated to undertake by litigation or otherwise the collection of any claim against any person for loss of, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval damage to, or governmental taking of invoices for repairs to the Equipment, but Lessor will cooperate with Lessee at Lessee's expense to pursue such claims. Except as expressly provided above, the total or partial destruction of any Equipment or Lessee's total or partial loss of use or possession thereof shall not release or relieve Lessee from its obligations under this Master Lease or any Schedule including the duty to pay the rent(s) herein provided.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes will at all times bear the entire risk of direct and consequential loss ofloss, theft, damage or damage to, destruction of the Equipment from all causes. Except as provided in this Section for discharge upon payment any cause whatsoever, and no loss, theft, damage or destruction of the full replacement value, no loss Equipment shall relieve Lessee of the obligation to pay rent or damage to the Equipment or comply with any part thereof shall release or impair any obligations of Lessee other obligation 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 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 or destruction of any other property resulting from the Equipment. In the event of loss or damage to any item Equipment, Lessee shall immediately place the same in good repair at Lessee's expense. If Lessor determines that any Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall at Lessee's option do one of the following: a. Replace the same with like Equipment in good repair, acceptable to Lessor in which case title to such Equipment shall immediately vest in Lessor and this Lease will continue as though such event had not occurred; or b. Pay Lessor in cash the following: (i) All amounts due by Lessee to Lessor with respect to all affected Schedules up to the date of the loss; (ii) The unpaid balance of the total amounts due for the remaining term of the affected Schedules attributable to said item, discounted to present value at a discount rate of 8% as of the date of loss; and (iii) The Lessor's estimate as of the time this Lease was entered into of Lessor's residual interest in the Equipment, discounted to present value at a discount rate of 8% as of the date of loss. Upon Lessor's receipt of payment as set forth above, Lessee shall be entitled to Lessor's interest in such Equipment "as is, where is" and without any warranty, express or implied from Lessor. If insurance proceeds are used to fully comply with this subparagraph, the balance of any such proceeds shall go to Lessee to compensate for loss of use of the Equipment which does not constitute a Total Loss (as hereinafter defined), and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage to be applied by Lessee toward for the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item remaining term of the Equipment to the condition required by this Lease. Notwithstanding anything to the contrary contained herein, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval of invoices for repairs to the Equipment.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes agrees to assume and bear the entire risk of direct and consequential any partial or complete loss of, or damage to, with respect to the Equipment from all causes. Except as provided in this Section for discharge upon payment any and every cause whatsoever including theft, loss, damage, destruction or governmental taking, whether or not such loss is covered by insurance or caused by any default or neglect of the full replacement 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 hereofLessee. Lessee agrees that to give Lessor prompt notice of any damage to or loss of any Equipment. All physical damage insurance proceeds shall not incur any liability be payable directly to Lessor. Following payment of such loss, and if no Event of Default as defined in Section 11 has occurred and remains continuing, Lessor will then: (a) Transfer to Lessee for Lessor's rights to such Equipment "as-is, where-is and with all defects," without recourse and without representation or warranty, express or implied, other than a warranty that is free and clear of any loss of business, loss of profits, expenses, or any other damages resulting lien created by Lessor; and (b) Remit to Lessee by reason any physical damage insurance proceeds arising out of any failure of or delay such loss in delivery or any delay caused by any non-performance, defective performance, or breakdown excess of the Equipmentsum due to the Lessor. Lessee shall determine in the exercise of it's reasonable judgement whether the Equipment is damaged beyond repair, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipmentsubject to Lessor's approval. In the event of damage or loss which does not result in damage beyond repair or damage to any item a total loss of the Equipment which does not constitute a Total Loss (as hereinafter defined)or any item thereof, and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage cause the affected Equipment to be applied by Lessee toward the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment restored to the condition required by the terms of this Lease. Notwithstanding anything Upon completion of such repair and after supplying Lessor with satisfactory evidence thereof (and provided no Event of Default has occurred and remains continuing), Lessee shall be entitled to receive any insurance proceeds or other recovery to which Lessor would otherwise be entitled in connection with such loss up to the contrary contained hereinamount expended by Lessee in making the repair. Lessor shall not be obligated to undertake by litigation or otherwise the collection of any claim against any person for loss of damage to, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval governmental taking of invoices for repairs to the Equipment, but Lessor will cooperate with Lessee at Lessee's expense to pursue such claims. Except as expressly provided above, the total or partial destruction of any Equipment or Lessee's total or partial loss of use or possession thereof shall not release or relieve Lessee from it's obligation under this Master Lease or any Schedule including the duty to pay the rent(s) herein provided.

Loss and Damage. Except as set forth in the Asset Purchase Agreement Lessee assumes agrees to assume and bear the entire risk of direct and consequential any partial or complete loss of, or damage to, with respect to the Equipment from all causes. Except as provided in this Section for discharge upon payment any and every cause whatsoever including theft, loss, damage, destruction or governmental taking, whether or not such loss is covered by insurance or caused by any default or neglect of the full replacement 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 hereofLessee. Lessee agrees to give Lessor prompt notice of any damage to or loss of any Equipment. All physical damage insurance proceeds shall be payable directly to Lessor. Following payment of such loss, and if no Event of Default as defined in Section 11 has occurred and remains continuing, Lessor will then: (a) transfer to Lessee's Lessor's rights to such Equipment "as-is, where-is and with all defects", without recourse and without representation or warranty, express or implied, other than a warranty that Lessor shall not incur the Equipment is free and clear of any liability liens created by Lessor; and (b) remit to Lessee for any physical damage insurance proceeds arising out of such loss of business, loss of profits, expenses, or any other damages 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 excess of the Equipmentsum due the Lessor. Lessee shall determine in the exercise of its reasonable judgment whether the Equipment is damaged beyond repair, nor shall Lessor at any time be responsible for personal injury or the loss or destruction of any other property resulting from the Equipmentsubject to Lessor's approval. In the event of damage or loss which does not result in damage beyond repair or damage to any item a total loss of the Equipment which does not constitute a Total Loss (as hereinafter defined)or any item thereof, and provided Lessee is not in default, Lessor shall make available to Lessee any insurance proceeds received by Lessor on account of such loss or damage cause the affected Equipment to be applied by Lessee toward the repair or restoration of such Equipment and thereafter the cost of repairs therefore and Lessee shall, at its sole cost and expense, promptly repair and restore such item of the Equipment restored to the condition required by the terms of this Lease. Notwithstanding anything Upon completion of such repair and after supplying Lessor with satisfactory evidence thereof ( and provided no Event of Default has occurred and remains continuing), Lessee shall be entitled to receive any insurance proceeds or other recovery to which Lessor would otherwise be entitled in connection with such loss up to the contrary contained hereinamount expended by Lessee in making the repair. Lessor shall not be obligated to undertake by litigation or otherwise the collection of any claim against any person for loss of, Lessor and Lessee agree that the insurance proceeds shall be distributed to Lessee only upon Lessor's reasonable approval damage to, or governmental taking of invoices for repairs to the Equipment, but Lessor will cooperate with Lessee at Lessee's expense to pursue such claims. Except as expressly provided above, the total or partial destruction of any Equipment or Lessee's total or partial loss of use or possession thereof shall not release or relieve Lessee from its obligations under this Master Lease or any Schedule including the duty to pay the rent(s) herein provided.