Loss and Damage Lessee shall assume and bear the risk of loss, theft and damage (including any governmental requisition, condemnation or confiscation) to the Equipment and all component parts thereof from any and every cause whatsoever, whether or not covered by insurance. No loss or damage to the Equipment or any component part thereof shall impair any obligation of Lessee under this Lease Agreement, which shall continue in full force and effect except as hereinafter expressly provided. Lessee shall repair or cause to be repaired all damage to the Equipment. In the event that all or part of the Equipment shall, as a result of any cause whatsoever, become lost, stolen, destroyed or otherwise rendered irreparably unusable or damaged (collectively, the “Loss”) then Lessee shall, within ten (10) days after the Loss, fully inform Lessor in writing of such a Loss and shall pay to Lessor the following amounts: (i) the Monthly Lease Charges (and other amounts) due and owing under this Lease Agreement, plus (ii) one-hundred (100%) percent of the original cost of the Equipment subject to the Loss if the loss occurs in the first nine months of the Initial Term, and, thereafter, the original cost of the Equipment amortized by the subsequent Monthly Lease Charges received by Lessor during the Initial Term using an amortization rate of eight hundred and ninety (890) basis points over the interest rate of the three (3) year United States Treasury Note as reported by the Federal Reserve on the Commencement Date (collectively, the sum of (i) plus (ii) shall be the “Casualty Loss Value”). Notwithstanding the proceeding, if Lessee has provided notice to terminate the applicable Lease Schedule prior to informing Lessor in writing of a Loss and such Loss is not covered by insurance proceeds pursuant to Section 13 hereof, then Lessee shall pay two (2) times the Casualty Loss Value on the Equipment subject to such Loss. Upon receipt by Lessor of the Casualty Loss Value: (i) the applicable Equipment shall be removed from the Lease Schedule; and (ii) Lessee’s obligation to pay Lease Charges associated with the applicable Equipment shall cease. Lessor may request, and Lessee shall complete, an affidavit(s) that swears out the facts supporting the Loss of any item of Equipment.
No Damage Any material loss, damage or destruction, whether covered by insurance or not, affecting any business or properties of any of the Partnerships;
PROPERTY AND RISK 5.3.1 Unless otherwise agreed in writing, the Equipment and/or Leased Equipment shall at all times remain the property of Digital Origin or, if provided by a Service Provider, that Service Provider.
5.3.2 The Equipment and/or Leased Equipment shall be at the Client’s risk from the moment of Delivery or deemed Delivery (as described in condition 5.1.4) whether or not property in the Equipment and/or Leased Equipment has passed or payment or part payment made, and thereafter the Client shall be responsible for insuring the Equipment and/or Leased Equipment for its full replacement value.
5.3.3 Notwithstanding Delivery and the passing of risk, the property and the legal and beneficial title in the Leased Equipment supplied under the Contract shall not pass to the Client until the end of the Minimum Term, at which point Digital Origin shall have the discretion whether to transfer full title to the Leased Equipment to the Client or not. Until Digital Origin has received in cash or cleared funds payment in full for the Leased Equipment and Installation Services (where applicable) and all other equipment and/or services agreed to be sold by Digital Origin to the Client for which payment is then due, title shall not transfer to the Client. For the avoidance of doubt, the property and the legal and beneficial title in the Switching Equipment shall not pass to the Client in any circumstances.
5.3.4 Until such time as the property in the Equipment and/or Leased Equipment has passed to the Client, the Client shall hold such Equipment and/or Leased Equipment as Digital Origin’s fiduciary agent and bailee, and keep such Equipment and/or Leased Equipment properly stored, protected and insured and identified as being Digital Origin’s property until title passes. Until such time as the property in the Equipment and/or Leased Equipment passes to the Client, Digital Origin shall be entitled at any time to require the Client (at the Client’s cost) to deliver up the Equipment and/or Leased Equipment to Digital Origin to its nominated location and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Equipment and/or Leased Equipment is stored and repossess such Equipment and/or Leased Equipment.
5.3.5 Title to the Equipment will pass to the Client once Digital Origin has received in cash or cleared funds payment in full for the Equipment and Installation Services (where applicable).
5.3.6 The Client shall not, without the written consent of Digital Origin, be entitled to pledge or in any way charge by way of security for intedbtedness, or alter or modify, any Equipment and/or Leased Equipment which remains the property of Digital Origin or any Equipment and/or Leased Equipment supplied by Digital Origin which remains the property of any other organisation, but if the Client does so all monies owing by the Client to Digital Origin shall (without prejudice to any right or remedy of Digital Origin) forthwith become due and payable. The Client shall ensure that any Equipment and/or Leased Equipment provided by Digital Origin which remains the property of Digital Origin or any Equipment and/or Leased Equipment provided by Digital Origin which remains the property of any other organisation shall remain identifiable and shall be kept free from any loss, damage, and/or deterioration and insured against all risks for its full reinstatement value.
5.3.7 The Client grants Digital Origin, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment and/or Leased Equipment is or may be stored in order to inspect it, or, where the Client’s right to possession has terminated, to recover it. Digital Origin will ensure that any such employee, agent or other person in possession of Equipment and/or Leased Equipment will return the same to Digital Origin.
5.3.8 Promptly after expiry or earlier termination of any Contract or this Agreement, the Client will use its reasonable endeavours to provide Digital Origin and Service Providers with access to the Equipment and/or Leased Equipment and all reasonable assistance in the removal of the same.
5.3.9 The Client shall:
5.3.9.1 ensure that the Equipment and/or Leased Equipment is used only for the purposes of the Services;
5.3.9.2 not connect any other equipment to the Equipment and/or Leased Equipment except as expressly authorised in writing by Digital Origin;
5.3.9.3 not tamper with or remove any label on any Equipment and/or Leased Equipment;
5.3.9.4 not (and procure that the Users do not) open, disconnect, repair, maintain, modify or remove the Equipment and/or Leased Equipment; and
5.3.9.5 permit Digital Origin and/or any Service Provider to modify, change, add or replace the Equipment and/or Leased Equipment or any part of the Equipment and/or Leased Equipment.
5.3.10 The Client is responsible for, and will, subject to condition 12, indemnify Digital Origin in respect of all Losses that Digital Origin incurs as a result of any loss of or damage to the Equipment and/or Leased Equipment caused by the Client other than where the damage or loss has been caused as a result of the Client acting in accordance with instructions issued by Digital Origin.
Property and Liability Insurance (a) Borrower shall keep the Improvements insured at all times against such hazards as Lender may from time to time require, which insurance shall include but not be limited to coverage against loss by fire, windstorm and allied perils, general boiler and machinery coverage, and business interruption including loss of rental value insurance for the Mortgaged Property with extra expense insurance. If Lender so requires, such insurance shall also include sinkhole insurance, mine subsidence insurance, earthquake insurance, and, if the Mortgaged Property does not conform to applicable zoning or land use laws, building ordinance or law coverage. In the event any updated reports or other documentation are reasonably required by Lender in order to determine whether such additional insurance is necessary or prudent, Borrower shall pay for all such documentation at its sole cost and expense. Borrower acknowledges and agrees that Lender's insurance requirements may change from time to time throughout the term of the Indebtedness. If any of the Improvements is located in an area identified by the Federal Emergency Management Agency (or any successor to that agency) as an area having special flood hazards, Borrower shall insure such Improvements against loss by flood. All insurance required pursuant to this Section 19(a) shall be referred to as "Hazard Insurance." All policies of Hazard Insurance must include a non-contributing, non-reporting mortgagee clause in favor of, and in a form approved by, Lender.
(b) All premiums on insurance policies required under this Section 19 shall be paid in the manner provided in Section 7, unless Lender has designated in writing another method of payment. All such policies shall also be in a form approved by Lender. Borrower shall deliver to Lender a legible copy of each insurance policy (or duplicate original) and Borrower shall promptly deliver to Lender a copy of all renewal and other notices received by Borrower with respect to the policies and all receipts for paid premiums. At least 5 days prior to the expiration date of any insurance policy, Borrower shall deliver to Lender evidence acceptable to Lender that the policy has been renewed. If Borrower has not delivered a legible copy of each renewal policy (or a duplicate original) prior to the expiration date of any insurance policy, Borrower shall deliver a legible copy of each renewal policy (or a duplicate original) in a form satisfactory to Lender within 120 days after the expiration date of the original policy.
(c) Borrower shall maintain at all times commercial general liability insurance, workers' compensation insurance and such other liability, errors and omissions and fidelity insurance coverages as Lender may from time to time require. All policies for general liability insurance must contain a standard additional insured provision, in favor of, and in a form approved by, Lender.
(d) All insurance policies and renewals of insurance policies required by this Section 19 shall be in such amounts and for such periods as Lender may from time to time require, and shall be issued by insurance companies satisfactory to Lender.
(e) Borrower shall comply with all insurance requirements and shall not permit any condition to exist on the Mortgaged Property that would invalidate any part of any insurance coverage that this Instrument requires Borrower to maintain.
(f) In the event of loss, Borrower shall give immediate written notice to the insurance carrier and to Lender. Borrower hereby authorizes and appoints Lender as attorney-in-fact for Borrower to make proof of loss, to adjust and compromise any claims under policies of Hazard Insurance, to appear in and prosecute any action arising from such Hazard Insurance policies, to collect and receive the proceeds of Hazard Insurance, and to deduct from such proceeds Lender's expenses incurred in the collection of such proceeds. This power of attorney is coupled with an interest and therefore is irrevocable. However, nothing contained in this Section 19 shall require Lender to incur any expense or take any action. Lender may, at Lender's option, (i) require a "repair or replacement" settlement, in which case the proceeds will be used to reimburse Borrower for the cost of restoring and repairing the Mortgaged Property to the equivalent of its original condition or to a condition approved by Lender (the "Restoration"), or (ii) require an "actual cash value" settlement in which case the proceeds may be applied to the payment of the Indebtedness, whether or not then due. To the extent Lender determines to require a repair or replacement settlement and apply insurance proceeds to Restoration, Lender shall apply the proceeds in accordance with Lender's then-current policies relating to the restoration of casualty damage on similar multifamily properties.
(g) Notwithstanding any provision to the contrary in this Section 19, as long as no Event of Default, or any event which, with the giving of Notice or the passage of time, or both, would constitute an Event of Default, has occurred and is continuing,
(i) in the event of a casualty resulting in damage to the Mortgaged Property which will cost $10,000 or less to repair, the Borrower shall have the sole right to make proof of loss, adjust and compromise the claim and collect and receive any proceeds directly without the approval or prior consent of the Lender so long as the insurance proceeds are used solely for the Restoration of the Mortgaged Property; and
(ii) in the event of a casualty resulting in damage to the Mortgaged Property which will cost more than $10,000 but less than $50,000 to repair, the Borrower is authorized to make proof of loss and adjust and compromise the claim without the prior consent of Lender, and Lender shall hold the applicable insurance proceeds to be used to reimburse Borrower for the cost of Restoration of the Mortgaged Property and shall not apply such proceeds to the payment of sums due under this Instrument.
(h) Lender will have the right to exercise its option to apply insurance proceeds to the payment of the Indebtedness only if Lender determines that at least one of the following conditions is met:
(i) an Event of Default (or any event, which, with the giving of Notice or the passage of time, or both, would constitute an Event of Default) has occurred and is continuing;
(ii) Lender determines, in its discretion, that there will not be sufficient funds from insurance proceeds, anticipated contributions of Borrower of its own funds or other sources acceptable to Lender to complete the Restoration;
(iii) Lender determines, in its discretion, that the rental income from the Mortgaged Property after completion of the Restoration will not be sufficient to meet all operating costs and other expenses, Imposition Deposits, deposits to reserves and loan repayment obligations relating to the Mortgaged Property;
(iv) Lender determines, in its discretion, that the Restoration will not be completed at least one year before the Maturity Date (or six months before the Maturity Date if Lender determines in its discretion that re-leasing of the Mortgaged Property will be completed within such six-month period); or
(v) Lender determines that the Restoration will not be completed within one year after the date of the loss or casualty.
(i) If the Mortgaged Property is sold at a foreclosure sale or Lender acquires title to the Mortgaged Property, Lender shall automatically succeed to all rights of Borrower in and to any insurance policies and unearned insurance premiums and in and to the proceeds resulting from any damage to the Mortgaged Property prior to such sale or acquisition.
(j) Unless Lender otherwise agrees in writing, any application of any insurance proceeds to the Indebtedness shall not extend or postpone the due date of any monthly installments referred to in the Note, Section 7 of this Instrument or any Collateral Agreement, or change the amount of such installments.
(k) Borrower agrees to execute such further evidence of assignment of any insurance proceeds as Lender may require.
Repair of Damage If the Relevant Space is damaged by fire, storm, flood, earthquake or other insured casualty, Landlord and Tenant shall work cooperatively and diligently with one another to obtain estimates of the cost and time required to repair and restore such damage to the Building and the Relevant Space (which estimates Landlord shall be responsible for obtaining and sharing with Tenant) and to negotiate a settlement payment with the relevant insurance company as quickly as feasible following the date of the casualty event and in any event within ninety (90) days after the date of such casualty event (the “90-Day Casualty Assessment Period”). If it is determined that the damage to the Building and the Relevant Space can be substantially repaired and restored within one hundred eighty (180) days from the expiration of the 90-Day Casualty Assessment Period using standard working methods and procedures, Landlord shall use reasonable efforts to repair and restore the Relevant Space and the Building to its previous condition. Provided, however, if it is determined that the Building and the Relevant Space cannot be repaired and restored within such one hundred eighty (180) day period, then either party may, within ten (10) days after such determination is made and communicated to both Landlord and Tenant, terminate this Lease by giving notice to the other party; provided further, however, Tenant shall not be able to terminate this Lease if the damage was caused by Tenant’s willful misconduct. Notwithstanding the foregoing, Tenant shall reimburse Landlord for the cost of repairing and restoring the Building, the Building-Specific Common Areas, the Exterior Common Areas and/or the Land, or any part thereof, to the extent that any water damage is due to the malfunction, leaking or misuse of any Tenant personal property, equipment, or non- Building Standard Improvements, including, without limitation, refrigerators, fish tanks, icemakers, water fountains and water coolers, to the extent specified in Section 6.4 herein. Additionally, if it is determined that the Building and the Relevant Space will be repaired and restored as provided above, Tenant shall be entitled, by so notifying Landlord in writing during the 90-Day Casualty Assessment Period, to have Landlord’s repair and restoration obligations encompass only a scope of work that is consistent with the Building Shell Improvements originally completed by Landlord prior to the Commencement Date and, in such case, (i) Tenant shall be responsible for all additional work required to repair and restore the Building and the Relevant Space to the condition that existed immediately prior to the casualty event or to a modified condition and receive the relevant insurance proceeds related thereto which remain following the completion of Landlord’s repair and restoration obligations, subject to Landlord’s prior written approval of the plans and specifications for such modifications pursuant to Section 6.1(b) herein (and Tenant shall bear the risk of any shortfall in insurance proceeds to fully pay for such additional work if and to the extent such additional work exceeds the scope of work that would be required to restore the Improvements that existed in the Premises immediately prior to the casualty event), (ii) the foregoing one hundred eighty (180) day period for the completion of the repair and restoration project shall no longer be applicable and (iii) Tenant shall cause such additional work to be completed in an expeditious manner (so that rent hereunder will again be payable with respect to the Relevant Space) and otherwise in compliance with all relevant terms and provisions in this Lease relating to the installation of Improvements by Tenant.
Insurance; Damage to or Destruction of Collateral (a) The Credit Parties shall, at their sole cost and expense, maintain the policies of insurance described on Disclosure Schedule 3.18 as in effect on the date hereof or otherwise in form and amounts and with deductibles as is customary for similarly situated businesses and with insurers reasonably acceptable to Agent. Agent and the Lenders confirm that the form, amounts and insurers described on Disclosure Schedule 3.18 are acceptable as of the Closing Date, and shall continue to be acceptable to Agent until not less than 30 days' prior written notice by Agent to Borrower to the contrary. Such policies of insurance (or the loss payable and additional insured endorsements delivered to Agent) shall contain provisions pursuant to which the insurer agrees to provide 30 days prior written notice to Agent in the event of any non-renewal, cancellation or amendment of any such insurance policy. If any Credit Party at any time or times hereafter shall fail to obtain or maintain any of the policies of insurance required above, or to pay all premiums relating thereto, Agent may at any time or times thereafter obtain and maintain such policies of insurance and pay such premiums and take any other action with respect thereto that Agent deems advisable. Agent shall have no obligation to obtain insurance for any Credit Party or pay any premiums therefor. By doing so, Agent shall not be deemed to have waived any Default or Event of Default arising from any Credit Party's failure to maintain such insurance or pay any premiums therefor. All sums so disbursed, including reasonable attorneys' fees, court costs and other charges related thereto, shall be payable on demand by Borrower to Agent and shall be additional Obligations hereunder secured by the Collateral.
(b) Agent reserves the right at any time (but not to be exercised more than once per Fiscal Year) upon (i) any material change in any Credit Party's risk profile (including any change in the product mix maintained by any Credit Party or any laws affecting the potential liability of such Credit Party), as determined by Agent in its commercially reasonable judgment, and (ii) not less than 30 days' prior written notice to Borrower, to require additional forms and limits of insurance to, in Agent's commercially reasonable judgment, adequately protect both Agent's and Lender's interests in all or any portion of the Collateral and to ensure that each Credit Party is protected by insurance in amounts and with coverage customary for its industry. If reasonably requested by Agent, each Credit Party shall deliver to Agent from time to time a report of a reputable insurance broker, reasonably satisfactory to Agent, with respect to its insurance policies.
(c) Each Credit Party shall deliver to Agent, in form and substance reasonably satisfactory to Agent, endorsements to (i) all "All Risk" and business interruption insurance naming Agent, on behalf of itself and Lenders, as lender loss payee or mortgagee (as the case may be), and (ii) all general liability and other liability policies naming Agent, on behalf of itself and Lenders, as additional insured. Each Credit Party irrevocably makes, constitutes and appoints Agent (and all officers, employees or agents designated by Agent), so long as any Event of Default has occurred and is continuing or the anticipated insurance proceeds exceed $1,000,000, as such Credit Party's true and lawful agent and attorney-in-fact for the purpose of making, settling and adjusting claims under such "All Risk" policies of insurance, endorsing the name of such Credit Party on any check or other item of payment for the proceeds of such "All Risk" policies of insurance and for making all determinations and decisions with respect to such "All Risk" policies of insurance. Agent shall have no duty to exercise any rights or powers granted to it pursuant to the foregoing power-of-attorney. Borrower shall promptly notify Agent of any loss, damage, or destruction to the Collateral in
(i) Borrower shall request a Revolving Credit Advance be made to Borrower in the amount requested to be released; (ii) so long as the conditions set forth in Section 2.2 have been met, Lenders shall make such Revolving Credit Advance; and (iii) in the case of insurance proceeds applied against the Revolving Loan, the Reserve established with respect to such insurance proceeds shall be reduced by the amount of such Revolving Credit Advance. To the extent not used to replace, repair, restore or rebuild the Collateral, such insurance proceeds shall be applied in accordance with Section 1.3(c).
Damage to Tenant's Property Landlord shall not be liable for any damage to Tenant's property except for that due to the willful neglect of Landlord. Tenant shall be responsible for the insuring of all personal property. Landlord strongly recommends renters insurance.
Property and Equipment The buildings, plants, structures located at the Plant Property and the Equipment are all owned by the CCC Company free and clear of all Liens (except Permitted Liens) and are structurally sound, are in good operating condition and repair, subject to normal wear and tear, and are adequate for the uses to which they are being put, and none of such buildings, plants, structures, personal property or Equipment is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.
Physical Damage Insurance The Servicer shall, in accordance with its customary servicing procedures, require that each Obligor shall have obtained physical damage insurance covering the Financed Equipment as of the execution of the Receivable.
Minor Damage In the event that a Property is damaged or destroyed by fire or other casualty prior to the Closing, and the cost of Repairs is equal to or less than ten percent (10%) of the Purchase Price for such Property, then this transaction shall be closed in accordance with Section 11.3, notwithstanding such casualty. In such event, applicable Seller may at its election endeavor to make such Repairs to the extent of any recovery from insurance carried on the Property, if such Repairs can be reasonably effected before the Closing. Regardless of applicable Seller’s election to commence such Repairs, or applicable Seller’s ability to complete such Repairs prior to Closing, this transaction shall be closed in accordance with Section 11.3 below.
