Restoration. If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.
Appears in 1 contract
Sources: Lease Agreement (2U, Inc.)
Restoration. (a) If at any time during the Lease Term the Premises are damaged by a fire or other casualty, or if the Building is damaged, Landlord shall, shall notify Tenant within sixty (60) days after such damage as to the extent amount of time. Landlord or Landlord’s architect or general contractor reasonably estimates it will take to restore the insurance proceeds received therefor Premises. If Landlord or Landlord’s architect or general contractor estimates the restoration time to exceed 180 days from the date Landlord receives all permits, approvals, and licenses required to begin construction, then Tenant may request in writing within five (including, without limitation, 5) days following Landlord’s notice that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”)select a third-party professional construction manager, subject to Landlord’s reasonable approval, to estimate the provisions time it will take to restore the Premises. If Landlord and Tenant cannot mutually agree within three (3) business days of any Mortgage or Superior Tenant’s request as to the identity of such third-party professional construction manager, then Landlord and Tenant shall each nominate a professional construction manager, who shall, within two (2) business days thereafter, jointly select one professional construction manager in Dallas, Texas to determine the time needed to restore the Premises (and the determination of such third professional construction manager shall be made as soon as reasonably practicable [but in no event more than 45 days following the damage], shall be deemed final, and, notwithstanding anything else to the contrary in this Lease, but may not be arbitrated or thereafter disputed by the parties hereto). If the restoration time is estimated to exceed 180 days from the date Landlord receives all permits, approvals, and licenses required to begin reconstruction, either Landlord or Tenant may elect to terminate this Lease upon notice to the other party given no later than thirty (30) days after Landlord’s notice. If neither party elects to terminate this Lease or if Landlord or Landlord’s architect or general contractor estimates that restoration will take 180 days or less, then, subject to receipt of sufficient insurance proceeds, Landlord shall have no obligation promptly restore the Premises excluding the improvements installed by Tenant or by Landlord and paid by Tenant, subject to delays not caused by Landlord arising from CONFIDENTIAL & PROPRIETARY Subject to Audit Protective Agreement the collection of insurance proceeds or from Force Majeure events. Tenant at Tenant’s expense shall promptly perform, subject to delays not caused by Tenant arising from the collection of insurance proceeds, or from Force Majeure events, all repairs or restoration not required to be done by Landlord. Notwithstanding the foregoing, either party may terminate this Lease upon thirty (30) days written notice to the other if the Premises are damaged during the last year of the Lease Term and Landlord or Landlord’s architect or general contractor reasonably estimates that it will take more than thirty (30) days to repair such damage.
(b) If the Premises are destroyed or restore substantially damaged by any peril not covered by the insurance maintained by Landlord or any Landlord’s mortgagee requires that insurance proceeds be applied to the indebtedness secured by its mortgage (idefined hereinafter), Landlord may terminate this Lease by delivering written notice of termination to Tenant within thirty (30) days after such destruction or damage or such requirement is made known by any such Landlord’s mortgagee, as applicable, whereupon all rights and obligations hereunder shall cease and terminate, except for any liabilities of Tenant which accrued prior to Lease termination.
(c) If such damage or destruction is caused by the act(s) or omission(s) of Tenant, its employees, agents or contractors, Tenant shall pay to Landlord with respect to any damage to the Premises and/or Project the amount of the commercially reasonable deductible under Landlord’s Property, insurance policy within ten (ii10) any other portion days after presentment of Landlord’s Premises Work, or (iii) any Alterations or improvements to invoice. Base Rent and Operating Expenses shall be abated on a reasonable basis for the Premises. Until period of repair and restoration in the date which is the earlier of (1) 120 days following the date on proportion which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to area of the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of businessif any, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises. Such abatement shall be the sole remedy of Tenant, and Rent shall be reduced on a floor except as provided herein. Tenant waives any right to terminate the Lease by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case reason of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casecasualty loss.
Appears in 1 contract
Sources: Assignment of Lease
Restoration. If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) Tenant’s Propertythe Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; provided, however, that notwithstanding the foregoing, Landlord may not terminate this Lease pursuant to this clause if, at the lime of such casualty, Tenant has validly exercised an express option to extend the Term of this Lease beyond the then scheduled Expiration Date, or (ii) any other portion the damage is of Landlord’s Premises Worka type not covered by the insurance Landlord is required to carry, or actually carries under this Lease, and the cost to repair the damage will exceed $250,000.00 (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access does not agree to provide the Premises, or (2) shortfall in proceeds to Landlord in excess of $250,000.00 within 10 days after its receipt of written demand by Landlord). Should Landlord elect not to repair the date on which Tenant occupies the portion damage for one of the Premises that has been damaged for the normal conduct of businesspreceding reasons, (i) with respect to the Premises, Rent Landlord shall be reduced so notify Tenant in the proportion by that area of the part of the Premises which is not usable "Casualty Notice" (or accessibleas defined below), and this Lease shall terminate as of the date of delivery of that notice. As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing ("Casualty Notice") of Landlord's election, if applicable, to terminate this Lease. If this Lease is not used so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casually damage, which estimate shall be provided by Tenant bears a licensed and experienced independent construction contractor. If the anticipated repair period exceeds 270 days and if the dam age is so extensive as to the total area reasonably prevent Tenant's substantial use and enjoyment of the Premises, and Rent shall be reduced on a floor then either party may elect to terminate this Lease by floor basis in written notice to the same manner and if more than thirty (30%) percent other within 10 days following delivery of the usable square footage of Casualty Notice. In the Premises shall be inaccessible, the Premises shall be deemed event that neither Landlord nor Tenant is entitled to be wholly unusable (and untenantableterminate this Lease or elects to terminate this Lease pursuant to Sections 11.1(a) and (ii) with respect 11.1(b), as applicable, Landlord shall repair all material damage to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse 011er to Landlord (or to any party designated by fire or other casualtyLandlord) all property insurance proceeds payable to Tenant under Tenant's insurance with respect to any Tenant Installations; provided if the estimated cost to repair such Tenant Installations exceeds the amount of insurance proceeds received by Landlord from Tenant's insurance carrier, the excess cost of such repairs shall be paid by Tenant to Landlord prior to Landlord's commencement of repairs. Further, if Landlord does not complete its required restoration within 60 days after the time period estimated by Landlord to repair the damage as specified in the Casualty Notice, as the same may be extended by force majeure delays of the type set forth in Section 20.9 (but not in excess of 120 additional days caused by any such force majeure delays), Tenant may terminate this Lease by delivering written notice to Landlord and Landlord's Mortgagee within 30 days following the expiration of such 60 day period, and prior to the date upon which Landlord substantially completes such restoration. Such termination shall supersede any Requirement providing be effective as of the date specified in Tenant's termination notice (but not earlier than 30 days or later than 120 days after the date of such notice) as if such date were the date fixed for the expiration of the Term. Notwithstanding the foregoing, if upon the receipt of Tenant's written election to terminate this Lease as provided in this Section 11.1 (c), Landlord reasonably believes it can complete its required restoration within 30 days following the receipt of such contingency notice, Landlord may, it its sole discretion, elect to proceed with such restoration and, provided Landlord substantially completes such required restoration within such 30-day period. Tenant's election to terminate shall be null and void. From and after the casualty event, the rental (including Basic Rent and Operating Expenses) to be paid under this Lease shall be abated in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction same proportion that the Floor Area of the Premises or that is rendered unusable by the Building by fire or other casualty, and Section 227 damage from time to time bears to the total Floor Area of the Real Property Law Premises. Notwithstanding the provisions of subsection (d) of this Section 11.1, if the State damage is due to the negligence of New YorkTenant or its employees, which provides subtenants, contractors, invitees or representatives, then the rental to be paid by Tenant under this Lease shall be abated only to the extent Landlord is compensated for such contingency in the absence rental by loss of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caserent insurance proceed then carried by Landlord.
Appears in 1 contract
Sources: Sublease (Upwork Inc.)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant’s Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (Micro Therapeutics Inc)
Restoration. If In the Premises event of the partial or total damage or destruction of the building of which the demised premises are damaged by fire a part during the term hereof, from any cause, except if due to the negligent acts or other casualtyomissions of Tenant, its agents or employees, or if to the Building is damagedfailure on the part of Tenant to perform or observe any of Tenant's covenants or conditions contained herein, Landlord shall, to the extent of the proceeds available to Landlord from the insurance proceeds received therefor (includingreferred to in Section 9.3 hereof, without limitationforthwith repair and reconstruct said building to substantially the same condition which said building was in immediately prior to such damage or destruction, that Landlord provided such repairs or reconstruction can be made under the existing laws and regulations. In the event of such reconstruction, Tenant, at its sole cost and expense, shall only be responsible for the repair and restoration of all items set forth in "Description of Tenant's Work" in Exhibit B and the replacement of its stock-in-trade trade fixtures, furniture, furnishings and equipment, and Tenant shall commence such repair and restoration and the installation of fixtures, equipment and merchandise promptly upon delivery to it of possession of the demised premises and shall diligently prosecute such work and installation to completion. With respect to any damage or destruction which Landlord is obligated to repair or may elect to repair under the Skylight terms of this Article, Tenant hereby waives the provisions of any law authorizing the termination of a lease upon the complete or partial destruction of the demised premises. Notwithstanding anything above to the contrary, in the event the demised premises are partially or totally damaged or destroyed by a cause or casualty other than those covered by said insurance, or by any cause at any time during the last two (2) years of the term hereof, or in the event the demised premises are, or the building in which the demised premises are situated is, damaged or destroyed by any cause or casualty to the extent of not less than thirty three and one-third percent (33-1/3 %) of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if replacement cost thereof at the time of such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage damage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Workdestruction, or if in the sole opinion of-Landlord the restoration of the demised premises cannot be completed within six (iii6) any Alterations months from the occurrence of the damage or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premisesdestruction, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced if in the proportion sole opinion of Landlord repairs cannot be adequately made, then Landlord may elect to terminate this Lease by that area giving written notice to Tenant of such termination within ninety (90) days after the part occurrence of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of such damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casedestruction.
Appears in 1 contract
Sources: Lease Agreement (Meganet Corp)
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in Exhibit D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Industrial Lease (Dental Medical Diagnostic Systems Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's proportionate share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; or (iii) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within thirty (30) days after the damage occurs and this Lease shall terminate as of the date of that notice
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is loot in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated to the extent Tenant's use of the insurance proceeds received therefor (includingPremises is impaired, without limitation, that Landlord shall but only be responsible to repair the Skylight to the extent of the that any business interruption insurance proceeds assigned and promptly paid to are received by Landlord by Tenant and only if such Skylight and therefor from Tenant's insurance described in EXHIBIT D.
(d) Notwithstanding the entire roof membrane surrounding such Skylight is substantially damagedprovisions of subsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Industrial Lease (Endwave Corp)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant’s Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Landlord shall have the State of New Yorkright, which provides for such contingency in but not the absence of an express agreementobligation, and to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (4-D Neuroimaging)
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred and seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in Exhibit D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may required.
Appears in 1 contract
Sources: Industrial Lease (Jni Corp)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless: (i) TenantLandlord reasonably determines that the cost of repair would exceed ten percent (10%) of the full replacement cost of the Building (“Replacement Cost”) and the damage is not covered by Landlord’s Property, fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to carry that insurance); or (ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Work, repair would exceed twenty-five percent (25%) of the Replacement Cost; or (iii) any Alterations or improvements Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. Until In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which is the earlier of termination date shall in no event be later than sixty (160) 120 days following the date on which of the Casualty Work damage, or, if no such date is Substantially Completed specified, such termination shall be the date of Landlord’s Notice).
(or would have been Substantially Completed but for Tenant Delayb) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant has reasonable access a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the Premisesapplicable grace period, or would constitute an Event of Default, then within ten (210) the date on which days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant occupies the portion of the Premises that has been damaged for the normal conduct of businessmay elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with respect to reasonable diligence, within two hundred seventy (270) days after the Premises, Rent shall be reduced in date of damage or (ii) the proportion by that area casualty has occurred within the final twelve (12) months of the part of the Premises which is not usable (or accessible), Term and is not used by Tenant bears to the total area such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises Tenant shall be deemed to be wholly unusable have waived any termination right under this Section 1l.1(b) or any other applicable law.
(and untenantablec) and (ii) with respect In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Tenant’s Roof Deck AreaBuilding or Premises resulting from a casualty, Rent Landlord shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of repair all material damage or destruction of to the Premises or the Building by fire or other casualty, as soon as reasonably possible and which this Lease shall supersede continue in effect for the remainder of the Term. Subject to any Requirement providing for such contingency provision to the contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.7.3)
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building apart is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default trader this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in EXHIBIT D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Arease) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Industrial Lease (Sensar Corp /Nv/)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless: (i) TenantLandlord reasonably determines that the cost of repair would exceed ten percent (10%) of the full replacement cost of the Building (“Replacement Cost”) and the damage is not covered by Landlord’s Property, fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to carry that insurance); or (ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Work, repair would exceed twenty-five percent (25%) of the Replacement Cost; or (iii) any Alterations or improvements Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the Premises. Until damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date which is the earlier of delivery of that notice.
(1b) 120 days As soon as reasonably practicable following the date on which casualty event but not later than sixty (60) days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Work Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds two hundred seventy (270) days and if the damage is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) so extensive as to reasonably prevent Tenant’s substantial use and Tenant has reasonable access to enjoyment of the Premises, or then Tenant may elect to terminate this Lease by written notice to Landlord within ten (210) days following delivery of the date on which Tenant occupies Casualty Notice.
(c) To the portion extent and for the period that Landlord is entitled to reimbursement from the proceeds of rental interruption insurance carried by Landlord as part of Operating Expenses, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total tot al floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, but subject to Section 10.5, the cost of any repairs shall be borne by Tenant, and Rent Tenant shall not be reduced on a floor by floor basis in entitled to rental abatement or termination rights, if the same manner and if more than thirty (30%) percent damage is due to the fault or neglect of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, contractors, invitees or representatives. In addition, the Premises provisions of this Section shall not be deemed to be wholly unusable (require Landlord to repair any Tenant Installations, fixtures and untenantable) and (ii) with respect other items that Tenant is obligated to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (insure pursuant to Exhibit D or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant's Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("LANDLORD'S NOTICE") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord shall have the right, and but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as deemed in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease Agreement (Telenetics Corp)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's proportionate share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) Tenant has defaulted in one or more of its material obligations under this Lease and such default is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Building that is rendered unusable by the damage from time to time bears to the total floor area of the Building, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in EXHIBIT D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant’s Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1 (a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.l(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.l(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed or paid for by Landlord pursuant to the Work Letter, and if any, so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (Lsi Logic Corp)
Restoration. If the Premises are damaged by fire or other casualty, or if the Building is damageddamaged such that Tenant is deprived of reasonable access to or use and occupancy of the Premises, the damage shall be repaired by Landlord shall, to substantially the condition thereof immediately prior to the extent damage; provided, however, (i) Landlord shall have no obligation to expend more than the amount of the insurance proceeds actually received therefor by it; (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areasii) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (ix) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iiiy) any Alterations or improvements installed or constructed in or to the PremisesPremises from time-to-time (including the Landlord’s Work). Until the date which is restoration of the earlier of (1) 120 days following the date on which the Casualty Work Premises is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) , Fixed Rent, Tenant’s Tax Payment, Tenant’s Operating Payment, and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent Tenant’s Insurance Payment shall be reduced abated in the proportion by that which the area of the part of the Premises which is not usable (or accessible), ) and is not used by Tenant as a result of such fire or other casualty bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent . Effective as of the usable square footage date which is sixty (60) days after the date on which Landlord notifies Tenant of the Substantial Completion of the restoration of the Premises such abatement shall cease and promptly thereafter, Tenant shall, at its expense, repair and restore Tenant’s Property and all Alterations to the Premises. Prior to Landlord commencing any restoration work, Tenant shall obtain from all applicable Governmental Authorities all licenses, permits, and approvals that may be inaccessible, required to permit Landlord to enter the Premises shall be deemed and/or to commence any restoration work therein (collectively referred to herein as "Hazardous Materials Clearances”). Notwithstanding any provision contained herein to the contrary, if the restoration work to be wholly unusable (and untenantable) and (ii) performed by Landlord is delayed as a result of any failure by Tenant to obtain any required Hazardous Materials Clearances, then any abatement of Rent provided under this Lease in connection with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by a fire or other casualtycasualty shall be tolled and suspended for the period of any such delay, and shall accrue only from and after the date on which shall supersede any Requirement providing for Tenant obtains such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseHazardous Materials Clearances.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) Tenant’s Property, the Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; (ii) any other portion Mortgagee (defined in Section 13.1) requires that the insurance proceeds be applied to the payment of Landlord’s Premises Work, the mortgage debt; or (iii) any Alterations or improvements proceeds necessary to pay the full cost of the repair are not available from Landlord’s insurance (exclusive of deductibles), including without limitation earthquake insurance. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days and if the damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises, then either party may elect to terminate this Lease by written notice to the Premisesother within 10 business days following delivery of the Casualty Notice. Until In addition, if (i) the Premises have been materially damaged and there is less than 1 year of the Term remaining at the date which of casualty, and (ii) the material damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the earlier of (1) 120 Premises, then Tenant may elect to terminate this Lease by written notice to Landlord within 15 business days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises casualty.
(c) In the event that has been damaged for the normal conduct of business, (i) with respect neither Landlord nor Tenant terminates this Lease pursuant to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessibleSection 11.1(b), and is not used by Tenant bears Landlord shall repair all material damage to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by fire or other casualtyLandlord) all property insurance proceeds payable to Tenant under Tenant's insurance with respect to any Tenant Installations; provided if the estimated cost to repair such Tenant Installations exceeds the amount of insurance proceeds received by Landlord from Tenant's insurance carrier, the excess cost of such repairs shall be paid by Tenant to Landlord prior to Landlord's commencement of repairs. Within 15 business days of demand, Tenant shall also pay Landlord for any additional excess costs that are determined during the performance of the repairs to such Tenant Installations.
(d) From and which after the date of the casualty event, the rental to be paid under this Lease shall supersede any Requirement providing for such contingency be abated in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction same proportion that the Floor Area of the Premises or that is rendered unusable by the Building by fire or other casualty, and Section 227 damage from time to time bears to the total Floor Area of the Real Property Law Premises.
(e) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section 11.1, but subject to Section 10.5, Tenant shall not be entitled to termination rights if the State damage is due to the gross negligence or willful misconduct of New YorkTenant or its employees, which provides for such contingency in subtenants, contractors, invitees or representatives. In addition, the absence provisions of an express agreementthis Section 11.1 shall not be deemed to require Landlord to repair any Tenant Installations, fixtures and other items that Tenant is obligated to insure pursuant to Exhibit D or under any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Sources: Lease (Inari Medical, Inc.)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord’s fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant’s proportionate share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term and is such that it cannot be repaired withing thirty (30) days, unless Tenant then has the right to extend the Term of Lease and does so in accordance with the provisions of Section 3.3 hereof. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant’s substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Building that is rendered unusable by the damage from time to time bears to the total floor area of the Building, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant’s insurance described in Exhibit D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore insure pursuant to any other provision of this Lease.
(ie) Tenant shall fully cooperate with Landlord in removing Tenant’s Propertypersonal property and any debris from the Premises to facilitate all inspections of the Premises reasonably required to facilitate the making of any repairs pursuant to this Section. Notwithstanding anything to the contrary contained in this Lease, (ii) if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the Building or Premises following any other portion damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of Landlord’s Premises Workquiet enjoyment to, or (iii) any Alterations made an unlawful detainer of, or improvements to evicted Tenant from, the Premises. Until Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (Building or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of businesssolely in order to allow Tenant to retrieve files, (i) with respect to the Premises, Rent shall be reduced data in the proportion by that area of the part of the Premises which is not usable (or accessible)computers, and is not used by necessary inventory, subject however to all indemnities and waivers of liability from Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis Landlord contained in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions below, Landlord shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the Premises have been materially damaged, there is less than 1 year of the Term remaining on the date of the casualty and Landlord reasonably determines that it would require more than sixty (60) days to repair, provided that Tenant may elect in such case, to cause this Lease to remain in effect by exercising any Mortgage remaining option, if any, of Tenant to extend the Term of this Lease by written notice to Landlord within fifteen (15) days after delivery of Landlord’s election to terminate; (ii) any Mortgagee (defined in Section 13.1) requires that the insurance proceeds be applied to the payment of the mortgage debt; or Superior (iii) proceeds necessary to pay the full cost of the repair are not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) as to (i) whether Landlord is terminating this Lease as a result of such material damage, or (ii) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice). If the anticipated repair period exceeds 270 days and if the damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises, then either party may elect to terminate this Lease by written notice to the other within 10 days following delivery of the Casualty Notice. Tenant may also elect to terminate this Lease by written notice to Landlord if the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Landlord’s repair of material damage shall be at Landlord’s sole cost and expense except for any insurance deductible. Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of Landlord’s repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant to the extent required by Landlord for such work. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord to the extent required by Landlord for such work. Landlord shall have no obligation liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in the Casualty Notice to Tenant as described in Section 11.1(a). Notwithstanding the provisions of this Article 11, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2. Notwithstanding anything to the contrary contained in this Section 11.1(c), if for any reasons other than delays caused by Tenant, or restore (i) Tenant’s Property, (ii) any other portion of matters beyond Landlord’s reasonable control (not to exceed ninety (90) days), the Premises Work, or and/or the Building have not been substantially repaired within thirty (iii30) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which time period specified in the Casualty Work is Substantially Completed (or would have been Substantially Completed Notice to Tenant as described in Section 11.1(a), then Tenant may, by written notice to Landlord given at any time thereafter but for Tenant Delay) and Tenant has reasonable access prior to the Premises, or (2) the actual date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area substantial completion of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction repair of the Premises or the Building by fire Building, elect to terminate this Lease effective thirty (30) days from and after the date of such notice; provided that if Landlord shall substantially complete such repairs on or before the effective date of such termination, then Tenant’s election to terminate this Lease shall thereupon be cancelled and of no further force or effect. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in the Casualty Notice (for reasons other casualtythan Tenant-caused delays and/or force majeure delays), then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and which Tenant must elect within ten (10) business days of delivery of such notice to either terminate this Lease or waive its right to terminate this Lease, provided such repairs are substantially completed within thirty (30) days following the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such ten (10) business day period shall supersede any Requirement providing for be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice.
(d) Commencing on the date of such contingency material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the absence same proportion that the Floor Area of an express agreementthe Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises; provided, that, if the Premises is damaged such that the remainder of the Premises is not reasonably usable by Tenant for the conduct its business operations from such remaining portion and Tenant does not conduct its business operations therefrom, Landlord shall allow Tenant a total abatement of rent during the time and to the extent the Premises are unfit for occupancy for Tenant’s permitted use, and not occupied by Tenant as a result of the subject damage.
(e) Landlord shall not be required to repair or replace any personal property or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other law provision of like nature this Lease and purpose now Tenant shall continue to be obligated to so repair or hereafter in force, shall have no application in replace any such casepersonal property or fixtures, notwithstanding any provisions to the contrary in this Article 11.
(f) Tenant shall fully cooperate with Landlord in removing Tenant’s personal property and any debris from the Premises to facilitate all inspections of the Premises and the making of any repairs. This Article 11 constitutes an express agreement governing Notwithstanding anything to the contrary contained in this Lease, if Landlord reasonably and in good faith believes there is a risk of injury to persons or damage to property from entry into the Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and Section 227 necessary inventory, subject however to all indemnities and waivers of the Real Property Law of the State of New York, which provides for such contingency liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such caseliability which Landlord may require.
Appears in 1 contract
Sources: Lease (Spark Networks Inc)
Restoration. (a0 If the Building, the Unit or the Premises are is partially or totally damaged by fire or other casualty, then so long as neither Landlord nor Tenant has duly exercised any right to terminate this Lease under this Article IX and subject to the terms and conditions of the Declaration and the rights of Senior Interest Holders, if any:
(i) Landlord shall repair, or if shall use all reasonable efforts to cause the Building is damagedBoard of Managers to repair, Landlord shallthe damage and restore or rebuild the Building, the Unit or the Premises (including the Improvements but excluding Tenant's Property), as the case may be (but only to the extent of the insurance proceeds received therefor (otherwise required under this Article IX, including, without limitation, that Landlord shall only be responsible to repair the Skylight Section 9.1(c) below) to the extent necessary for Tenant to occupy and reasonably conduct business throughout the Premises as conducted prior to the damage or destruction (such repairs and restoration being herein called "Landlord's Casualty Restoration Work"), with reasonable dispatch (including an obligation to incur overtime or premium pay labor rates) after the collection of substantially all of the insurance proceeds assigned receivable on account of the fire or other casualty; and
(ii) once commenced, Landlord shall diligently prosecute Landlord's Casualty Restoration Work in order to complete the same within the shortest time reasonably possible (including an obligation to incur overtime or premium pay labor rates), except as expressly provided in Article 9. (b0 Whenever in this Article 9, reference is made to the Premises, such reference shall include all Improvements (and promptly paid to Landlord by Tenant and only if such Skylight Landlord's Casualty Restoration Work shall include the repair of all damage to, and the entire roof membrane surrounding restoration of, all such Skylight is substantially damaged), be responsible only to repair Improvements) but shall not include any Tenant's Property (and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore any Tenant's Property). (ic0 Notwithstanding anything in this Section 9.1 to the contrary, nothing in this Article IX shall require Landlord or the Board of Managers, as the case may be, to expend on such restoration amounts in excess of the total insurance proceeds (net of the costs of collection) Tenant’s Propertycollected and deposited with Landlord on account of such casualty, and in no event shall Landlord be required to repair or restore the Building, the Unit or the Premises (iior to cause the Board of Managers to repair or restore) in the event the Board of Managers determines not to so repair or restore the same pursuant to the Condominium Documents. Tenant shall give prompt notice to Landlord of any fire or other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to casualty in the Premises. Until (d0 Landlord, upon Tenant's request from time to time, shall keep Tenant informed with regard to, and meet with Tenant to discuss, the date which is planning for and the earlier prosecution of Landlord's Casualty Restoration Work. (1e0 Within fifteen (15) 120 days following Business Days of the date on which the Casualty Work is Substantially Completed (Unit or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building any portion thereof is damaged by fire or other casualtycasualty such that Tenant is thereby "deprived of the beneficial enjoyment of any portion of the Premises", (as such phrase is hereinafter defined), Landlord, by written notice to Tenant, shall state the date by which, in the opinion of a reputable contractor selected by Landlord, Landlord will have substantially completed Landlord's Casualty Restoration Work to the extent necessary for Tenant to occupy and reasonably conduct business throughout the Premises as conducted prior to the damage or destruction, including, without limitation, (a) restoration of substantially all services under Article 6 and (b) compliance with all Laws compliance with which shall supersede any Requirement providing is required for such contingency in occupancy and conduct of business (such date being referred to as the absence of an express agreement"Estimated Casualty Restoration Work Completion Date"). (f0 Within 5 Business Days after Landlord delivers to Tenant the notice required under clause (e) above, and any other law of like nature and purpose now or hereafter in forceLandlord, by written notice to Tenant, shall have no application state Landlord's determination to complete Landlord's Casualty Restoration Work by the Estimated Casualty Restoration Work Completion Date. (g0 The inadequacy of any insurance proceeds or any delay in receiving same shall not limit any such case. This Article 11 constitutes an express agreement governing any case rights of damage or destruction of the Premises or the Building by fire or other casualty, and Tenant to terminate this Lease in accordance with Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case9.4.2.
Appears in 1 contract
Restoration. If In the Premises are damaged by fire event of physical damage to or other casualty, or if the Building is damaged, Landlord shall, to the extent destruction of any of the insurance proceeds received therefor (includingImprovements at any time standing on the Premises, without limitationTenant shall have rights and obligations regarding the repair, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned replacement, and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event rebuilding (collectively, “restoration”) of the “Casualty Work”)damaged or destroyed Improvements, subject to and the provisions proceeds of any Mortgage or Superior Leaseinsurance shall be applied, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of as follows:
(1) 120 days following Subject to Tenant’s right to terminate as provided in this Lease, so long as Tenant shall receive an adequate amount from insurance proceeds or from Landlord to cover the date on which full cost of a restoration, Tenant shall restore any such damage or destruction if the Casualty Work is Substantially Completed estimated cost of restoration does not exceed one million dollars (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises$1,000,000.00), or (2) the date on which Tenant occupies the portion 25% of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area then current market value of the Premises, whichever is greater, and Rent the remaining term of the Lease is five (5) years or more from the date of such damage or destruction. The proceeds of insurance shall be reduced on used to pay for such restoration, but Tenant’s obligation to restore pursuant to the foregoing sentence shall be limited by the amount of any such insurance proceeds. Any proceeds of insurance remaining after the completion of and payment for such restoration shall be deposited in a floor capital improvement fund to be maintained by floor basis in Tenant throughout the same manner and if more than thirty (30%) percent term of this Lease. Tenant shall provide Landlord an accounting of the usable square footage expenditure of any and all such insurance proceeds as provided for below. Any restoration to be performed by Tenant shall be approved by Landlord prior to commencement of work.
(2) In the event the cost of any restoration shall exceed one million dollars ($1,000,000.00), or 25% of the Premises then current market value of the Premises, whichever is greater, and the remaining term of the Lease is less than five (5) years, Tenant may terminate this Lease in accordance with the terms hereof, but only after the delivery to Landlord of any and all insurance proceeds payable in relation to the casualty in question.
(3) Notwithstanding the foregoing sentence, if the proceeds of any and all applicable insurance, plus any deductible payable by Tenant, is sufficient to pay for restoration, Tenant shall restore the Improvements to their condition immediately prior to such casualty.
(4) Except as provided in paragraph (2) above, the proceeds of insurance resulting from any damage or destruction shall be inaccessible, the Premises paid to and maintained by Tenant. Tenant shall be deemed provide Landlord a written report detailing all insurance proceeds received by Tenant in relation to be wholly unusable (any and untenantable) all claims for damage or destruction including copies of all correspondence from and (ii) with respect to the Tenant’s Roof Deck Areainsurer relative thereto. Copies of any and all reports to adjusters, Rent shall be reduced by 10% if 33% (or more) other assessment of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case extent of damage or destruction shall be provided to the Landlord. All insurance proceeds shall be deposited in a separate account, and shall be identified and accounted for separately. Current status of any and all such accounts shall be reported to Landlord monthly beginning on the thirtieth (30) day after receipt of the Premises or proceeds, along with a written report as to the Building status of any restoration. The Tenant shall release monies maintained by fire or other casualty, and which shall supersede it to pay the cost of restoration. Any monies maintained by Tenant after the completion of any Requirement providing payment for such contingency restoration shall be the property of Tenant and shall be maintained in a capital improvement fund as provided above.
(5) Notwithstanding any other provision of this Lease, Tenant may terminate this Lease in the absence event damage to any of an express agreementthe Improvements substantially in excess of insurance proceeds shall occur at any time. For purposes of this paragraph, and “substantially in excess of insurance proceeds” shall mean restoration exceeding the level of insurance proceeds by more than the greater of (i) $10,000 or (ii) the amount of any other law unfunded contingency item in the current annual budget or unfunded amount of like nature and purpose now proceeds then held in reserve pursuant to Section 3(f). The Tenant may effect such termination by giving Landlord written notice thereof not later than twelve (12) months following the occurrence of such damage or hereafter in forcedestruction. In the event of such termination, shall have no application in any proceeds of insurance resulting from such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency shall be applied as set forth in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseparagraph (2) above.
Appears in 1 contract
Sources: Lease Agreement
Restoration. If So long as no Event of Default shall ----------- have occurred and be continuing, in the Premises are damaged by fire event there shall be a Net Condemnation Award or other casualtyNet Insurance Proceeds in an amount less than $1,000,000, or if the Building is damagedMortgagor shall have the right, Landlord shallat the Mortgagor's option, to apply such Net Condemnation Award or Net Insurance Proceeds to the extent payment of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to Secured Obligations in accordance with the provisions of any Mortgage Section 2.13(f) of the Credit Agreement or Superior Leaseto -------------- perform a restoration (each, but Landlord a "Restoration") of the Premises. In the event the ----------- Mortgagor elects to perform a Restoration pursuant to the immediately preceding sentence, the Mortgagor shall have no obligation within thirty (30) days after the date that the Mortgagor receives notice of collection by the Mortgagee of the applicable Net Insurance Proceeds or Net Condemnation Award, as the case may be, deliver to repair or restore the Mortgagee (i) Tenant’s Property, a written notice of such election and (ii) any other portion of Landlord’s Premises Work, or an Officers' Certificate stating that (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2A) the date on which Tenant occupies Net Insurance Proceeds or Net Condemnation Award, as the portion case may be, shall be utilized to perform a Restoration in the manner contemplated by this Section 10.3 and (B) no Event of Default has ------------ occurred and is continuing (the Premises that has been damaged for the normal conduct of business, items described in clauses (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect of this sentence, collectively, the "Restoration Election Notice"). In the event the --------------------------- Mortgagee does not receive a Restoration Election Notice within such 30-day period, the Mortgagee may apply any such Net Insurance Proceeds or Net Condemnation Award held by the Mortgagee to the Tenant’s Roof Deck Areapayment of the Secured Obligations in accordance with the provisions of Section 2.13(f) of the Credit --------------- Agreement or, Rent at the option of the Mortgagee, may continue to hold such Net Insurance Proceeds or Net Condemnation Award in the Collateral Account as additional collateral to secure the performance by the Mortgagor of the Secured Obligations. In the event the Mortgagor elects to perform any Restoration contemplated by this Section 10.3, the Mortgagee shall release such Net ------------ Condemnation Award or Net Insurance Proceeds to the Mortgagor as soon as practicable following receipt of a Restoration Election Notice in accordance with the provisions of Section 8.2(ii) of the Security Agreement. The Mortgagor --------------- shall, within fifteen (15) days following the date of its receipt of any proceeds in respect of a Destruction or Taking, as the case may be, commence and diligently continue to perform the Restoration of that portion or portions of the Improvements subject to such Destruction or affected by such Taking so that, upon the completion of the Restora- tion, the Premises will be in the same condition and shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if at least equal value and utility for its intended purposes as the Premises and was immediately prior to such Destruction or Taking. The Mortgagor shall so complete such Restora-tion with its own funds to the Tenant’s Roof Deck Area are both not usable (extent that the amount of any Net Condemnation Award or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing Net Insurance Proceeds is insufficient for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casepurpose.
Appears in 1 contract
Sources: Term Loan & Revolving Credit Mortgage (Applied Power Inc)
Restoration. If the Premises are Premises, the Building or the Parking Deck, as the case may be, is damaged by fire or other casualty, or if the Building is damaged, Landlord shall, casualty to the extent of less than twenty percent (20%) of the insurance proceeds received therefor value thereof in the reasonable opinion of Landlord, then Landlord shall, except as otherwise provided herein, proceed with diligence to rebuild and restore the Parking Deck, the Building and/or the Premises (includingexclusive of Tenant’s property and improvements or alterations that are the property of Tenant), without limitationas the case may be, that Landlord shall only be responsible to repair the Skylight substantially to the extent condition thereof existing immediately prior to such damage or destruction. Excluded from Landlord’s obligation to rebuild or restore shall be Tenant’s personal property, equipment, furniture, trade fixtures, unapproved alterations or other improvements that were not part of the Premises upon the Commencement Date or alterations approved by Landlord after the Commencement Date. Notwithstanding the foregoing, if by reason of such casualty, (i) the Parking Deck, the Building and/or the Premises are damaged in whole or in part as a result of a risk which is not covered by insurance policies in force and carried by Landlord; or (ii) Landlord’s lender(s) shall not permit a sufficient amount of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, used for restoration purposes; or (iii) the Parking Deck, the Office Lease Page 23 Building and/or the Premises are damaged during the final twelve (12) calendar months of the Term (including any Alterations properly exercised extensions and renewals, if any); or improvements to the Premises. Until (iv) Landlord does not reasonably believe that such restoration or repair can be completed within one hundred eighty (180) days of the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by such fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application then in any event, Landlord may terminate this Lease by written notice of termination given to Tenant within thirty (30) days after the date of such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 and, unless the reason to terminate was that the casualty occurred during the final twelve (12) calendar months of the Real Property Law Term and within fourteen (14) days of the State date of New YorkLandlord’s notice Tenant elects to exercise an Extension Option (if Tenant is otherwise entitled to exercise it), then this Lease shall terminate. If such termination notice is not given by Landlord within said thirty (30) day period, or if the termination notice is given and reversed by Tenant’s exercise of an Extension Option as provided in the preceding sentence, then Landlord shall repair and restore the Parking Deck, the Building and/or the Premises as provided above. At any time after a casualty event, if Landlord is obligated to, or has elected to, complete restoration for purposes of this Article 15, but Landlord determines that there may be insufficient insurance proceeds to complete such restoration, for whatever reason (whether due to the cause of the damage or destruction being an uninsured risk, to Landlord’s lender not permitting a sufficient amount of the insurance proceeds to be used for restoration purposes, to the insufficiency of proceeds after paying the costs of claiming and collecting the proceeds or for other reasons), Landlord shall notify Tenant immediately of such insufficiency of insurance proceeds, and whether the insufficiency will cause any portion of the Premises to not be restored (excluding Tenant’s property and improvements or alterations that are the property of Tenant) (a “Notice of Insufficiency”). If Tenant receives a Notice of Insufficiency, which provides for such contingency in projects that some portion of the absence of an express agreementPremises will not be substantially restored, and any other law of like nature such failure to substantially restore would not permit Tenant to carry on its business to substantially the same extent and purpose now with substantially the same effectiveness as before such damage or hereafter in forcedestruction, then Tenant shall have no application in a period of fifteen (15) business days after receipt of a Notice of Insufficiency to terminate this Lease by written notice to Landlord. If Tenant receives a Notice of Insufficiency, which projects that the insufficient proceeds will not impair a full restoration of the Premises (excluding Tenant’s property and improvements or alterations that are the property of Tenant), then Tenant shall not have a right to terminate this Lease, and Landlord shall carry out and complete its restoration of the damage and destruction, and its obligation to restore the Premises shall not be subject to any insufficiency of insurance proceeds. In addition, Tenant may also terminate this Lease, by written notice to Landlord at any time between the 181st and 195th day (exclusive of Force Majeure Delay and Tenant Delay) after the occurrence of any such casefire or other casualty if Landlord shall fail to complete the rebuilding and restoration of the Parking Deck, the Building and/or the Premises such that a certificate of occupancy (temporary or final) shall not have been issued within 180 days of such fire or other casualty, exclusive of Force Majeure Delay and Tenant Delay. Termination of this Lease by Tenant shall be Tenant’s sole remedy for Landlord’s failure to rebuild or restore the Premises, the Building and/or the Parking Deck under this Section 15.02. Upon any termination of this Lease under this Section 15.02, Tenant’s liability for Rent and other charges reserved hereunder shall cease as of the effective date of the termination of this Lease.
Appears in 1 contract
Sources: Office Lease (Ncino, Inc.)
Restoration. If In case during the Premises are Term, the Property shall be substantially destroyed or damaged by fire or casualty (hereinafter referred to as "Casualty") then this Lease may be terminated by Landlord effective as of the date of such Casualty. If Landlord does not exercise the election to terminate provided in Section 6.1 for a Taking or in this Section 6.2 for a Casualty or in the event of a Casualty which does not substantially damage the Property, this Lease shall continue in force and a just proportion of the Fixed Rent and other casualtycharges hereunder, or if the Building is damaged, Landlord shall, according to the nature and extent of the insurance proceeds received therefor damages (including, without limitation, that Landlord if any) sustained by the Premises shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until abated from the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to Taking until the Premises, or what may remain thereof, shall be put by Landlord in proper condition for use subject to zoning and building laws or ordinances then in existence, which, unless Landlord has exercised its option to terminate pursuant to Section 6.1 or 6.2, Landlord covenants to do with reasonable diligence at Landlord's expense, provided that Landlord's obligations with respect to restoration shall not require Landlord to expend more than the net proceeds of insurance recovered or damages awarded for such Casualty or Taking. "Net proceeds of insurance recovered or damages awarded" refers to the gross amount of such insurance or damages less the reasonable expenses of Landlord in connection with the collection of the same, including without limitation, fees and expenses for legal and appraisal services. Within thirty (30) days after any such Casualty or Taking, Landlord shall notify Tenant of its good faith estimate of the time to complete such restoration. If such estimated time to complete restoration exceeds ninety (90) days (sixty (60) days if such Casualty or Taking occurs during the last two (2) the date on which Tenant occupies the portion years of the Premises that has been damaged for the normal conduct Term of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessiblethis Lease), and is not used by Tenant bears to upon notice given within the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than following thirty (30%) percent of the usable square footage of the Premises shall be inaccessibledays, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseTenant may terminate this Lease.
Appears in 1 contract
Restoration. If If, at any time during the Term, the Project or the Premises are damaged or destroyed by a fire or other insured casualty, Landlord shall notify Tenant within sixty (60) days after discovery of such damage as to the amount of time Landlord reasonably estimates it will take to restore the Project or if the Premises, as applicable (the “Restoration Period”). If the Restoration Period is estimated to exceed twelve (12) months (the “Maximum Restoration Period”), Landlord may (subject to Tenant’s right to continue the Lease in effect as set forth below in this Section 18), in such notice, elect to terminate this Lease as of the date that is seventy-five (75) days after the date of discovery of such damage or destruction. Notwithstanding Landlord’s election to restore, Tenant may elect to terminate this Lease by written notice to Landlord delivered within ten (10) business days of receipt of a notice from Landlord estimating a Restoration Period for the Premises longer than the Maximum Restoration Period. If Landlord elects to terminate this Lease, Tenant shall have the right by written notice to Landlord delivered within ten (10) business days of receipt of Landlord’s notice of termination, to elect to continue this Lease in effect for the lesser of (A) the remainder of the Term and (B) up to two (2) years from the date of Landlord’s notice (the “Casualty Loss Extension Period”); provided, however, that Rent during the Casualty Loss Extension Period shall be adjusted so that Tenant shall pay Rent as set forth herein on the entire Premises and on any portion of the Project for which Landlord is prevented from commencing restoration and is not collecting Rent because Tenant has elected to continue the Lease in effect during the Casualty Loss Extension Period; provided, further, Tenant may not elect to continue this Lease for the Casualty Loss Extension Period if, as a result of the applicable damage or destruction, the Building is damagedor the Premises (x) have been rendered untenantable or unsafe for occupation, as reasonably determined by Landlord or (y) cannot be occupied under applicable laws. Unless either Landlord or Tenant so elects to terminate this Lease, Landlord shall, subject to the extent receipt of the sufficient insurance proceeds received therefor (includingwith up to $50,000 of any deductible to be treated as a current Operating Expense), without limitation, that Landlord shall only be responsible to repair promptly restore the Skylight to Premises (excluding the extent of the insurance proceeds assigned and promptly paid to Landlord improvements installed by Tenant or by Landlord and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”paid for by Tenant), subject to delays arising from the provisions collection of insurance proceeds, from Force Majeure events or as needed to obtain any license, clearance or other authorization of any Mortgage kind required to enter into and restore the Premises issued by any Governmental Authority having jurisdiction over the use, storage, handling, treatment, generation, release, disposal, removal or Superior Leaseremediation of Hazardous Materials (as defined in Section 30) in, but on or about the Premises (collectively referred to herein as “Hazardous Materials Clearances”). Notwithstanding the foregoing, Landlord shall have no obligation to repair restore the Project or restore the Premises or any portion thereof during any Casualty Loss Extension Period. Tenant, at its expense, shall promptly perform, subject to delays arising from the collection of insurance proceeds, from Force Majeure (ias defined in Section 34) Tenant’s Propertyevents or to obtain Hazardous Material Clearances, (ii) any other portion of Landlord’s all repairs or restoration not required to be done by Landlord and shall promptly re-enter the Premises Workand commence doing business in accordance with this Lease. Notwithstanding the foregoing, or (iii) any Alterations or improvements to Landlord may terminate this Lease if the Premises. Until Premises are damaged during the date which is the earlier of last one (1) 120 days following year of the Term and Landlord reasonably estimates that it will take more than two (2) months to repair such damage, or if insurance proceeds are not available for such restoration. Rent shall be abated from the date on all required Hazardous Material Clearances are obtained until the Premises are repaired and restored, in the proportion which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to area of the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of businessif any, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent unless Landlord, at its sole cost, provides Tenant with other space in the ▇▇▇▇▇▇ ▇▇▇▇▇ area of San Diego, California, during the period of repair that is suitable for the temporary conduct of Tenant’s business. Such abatement shall be reduced on a floor the sole remedy of Tenant, and except as provided in this Section 18, Tenant waives any right to terminate the Lease by floor basis in reason of damage or casualty loss. In the same manner and if more than thirty event of any damage or destruction to the Premises within the last twelve (30%12) percent months of the usable square footage Term that would take longer than three (3) months from the date of such casualty to fully restore, Tenant shall have the Premises shall be inaccessibleoption to terminate this Lease by delivery of written notice to Landlord within ten (10) business days after receipt of written notice from Landlord specifying the estimated time to restore such damage or destruction. The provisions of this Lease, the Premises shall be deemed to be wholly unusable (including this Section 18, constitute an express agreement between Landlord and untenantable) and (ii) Tenant with respect to any and all damage to, or destruction of, all or any part of the Tenant’s Roof Deck AreaPremises, Rent or any other portion of the Project. Any statute or regulation which is now or may hereafter be in effect shall be reduced by 10% if 33% (have no application to this Lease or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing to any case of damage or destruction to all or any part of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction portion of the Premises or the Building by fire or other casualty, Project. The parties hereto expressly agree that this Section 18 sets forth their entire understanding and Section 227 of the Real Property Law of the State of New York, which provides for agreement with respect to such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casematters.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the extent deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the insurance proceeds received therefor (presence of hazardous factors, including, without limitation, that Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord shall only be responsible elect not to repair the Skylight damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises, but only to the extent of the that any business interruption insurance proceeds assigned and promptly paid to are received by Landlord by Tenant and only if such Skylight and therefor from Tenant's insurance described in Exhibit D.
(d) Notwithstanding the entire roof membrane surrounding such Skylight is substantially damagedprovisions of subsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if Landlord shall repair that damage as soon as reasonably possible unless: (
i) Landlord reasonably determines that the Building is damaged, Landlord shall, to the extent cost of repair would exceed ten percent (1O%) of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent full replacement cost of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas"Replacement Cost") Base Building Work and the Base Building Roof Work damage is not covered by Landlord's fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to substantially the condition it existed prior to such event carry that insurance); or (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (
ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Workrepair would exceed twenty-five percent (25%) of the Replacement Cost, or (iii) any Alterations or improvements Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the Premises. Until damage for one of the preceding reasons, Landlord shall so notify Tenant in the "Casualty Notice" (as defined below), and this Lease shall terminate as of the date which is the earlier of delivery of that notice.
(1b) 120 days As soon as reasonably practicable following the date on which casualty event but not later than sixty (60) days thereafter, Landlord shall notify Tenant in writing ("Casualty Notice") of Landlord's election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Work Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds two hundred seventy (270) days and if the damage is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) so extensive as to reasonably prevent Tenant's substantial use and Tenant has reasonable access to enjoyment of the Premises, or then Tenant may elect to terminate this Lease by written notice to Landlord within ten (210) days following delivery of the date on which Tenant occupies Casualty Notice.
(c) To the portion extent and for the period that Landlord is entitled to reimbursement from the proceeds of rental interruption insurance carried by Landlord as part of Operating Expenses, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, the cost of any repairs shall be borne by Tenant, and Rent Tenant shall not be reduced on a floor by floor basis in entitled to rental abatement or termination rights, if the same manner and if more than thirty (30%) percent damage is due to the fault or neglect of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, invitees or representatives. In addition, the Premises provisions of this Section shall not be deemed to be wholly unusable (and untenantable) and (ii) with respect require Landlord to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (repair any improvements or more) of usable square footage of Tenant’s Roof Deck Area fixtures that Tenant is not usable (obligated to repair or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and insure pursuant to any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Sources: Office Space Lease (Pharmaprint Inc)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless: (i) Tenant’s Property, Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the full replacement cost of the Building ("Replacement Cost") and the damage is not covered by Landlord's fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to carry that insurance); or (ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Work, repair would exceed twenty-five percent (25%) of the Replacement Cost; or (iii) any Alterations or improvements Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the Premises. Until damage for one of the preceding reasons, Landlord shall so notify Tenant in the "Casualty Notice" (as defined below), and this Lease shall terminate as of the date which is the earlier of delivery of that notice.
(1b) 120 days As soon as reasonably practicable following the date on which casualty event but not later than sixty (60) days thereafter, Landlord shall notify Tenant in writing ("Casualty Notice") of Landlord's election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Work Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds two hundred seventy (270) days and if the damage is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) so extensive as to reasonably prevent Tenant's substantial use and Tenant has reasonable access to enjoyment of the Premises, or then Tenant may elect to terminate this Lease by written notice to Landlord within ten (210) days following delivery of the date on which Tenant occupies Casualty Notice.
(c) From and after the portion sixth (6th) business day following the casualty event, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, but subject to Section 10.5, the cost of any repairs shall be borne by Tenant, and Rent Tenant shall not be reduced on a floor by floor basis in entitled to rental abatement or termination rights, if the same manner and if more than thirty (30%) percent damage is due to the fault or neglect of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, contractors, invitees or representatives. In addition, the Premises provisions of this Section shall not be deemed to be wholly unusable (require Landlord to repair any Tenant Installations, fixtures and untenantable) and (ii) with respect other items that Tenant is obligated to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (insure pursuant to Exhibit D or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord’s Property Policy (or if Landlord chooses to self-insure all or any portion of such Property Policy coverage, that the necessary proceeds would not have been available if the Property Policy had been in place through third-party insurers) and/or from its other property insurance policies (if any), including without limitation proceeds to cover any earthquake casualty, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant’s Share not to exceed One Hundred Thousand Dollars ($100,000.00) for any single casualty); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred and is continuing; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice). In the event Landlord elects to terminate this Lease (but not in the event of a termination of this Lease by Tenant pursuant to Section 11.1(b) below), Tenant shall have no obligation for reimbursement of Landlord’s insurance deductible.
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an uncured Event of Default exists nor has Landlord delivered Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) business days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) business day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord’s repair of material damage shall be at Landlord’s sole cost and expense except for any insurance deductible (for which Tenant shall be responsible for Tenant’s Share, not to exceed One Hundred Thousand Dollars ($100,000.00) for any single casualty). Landlord shall have the right, but not the obligation, to the extent repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of the Landlord’s repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds received therefor (including, without limitation, that from insurance required to be maintained by Tenant. If Landlord shall only be responsible elects to repair the Skylight to the extent of the or replace such leasehold improvements and/or Alterations, all insurance proceeds assigned and promptly paid available for such repair or replacement shall be made available to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord. Landlord shall have no obligation liability to repair Tenant in the event that the Premises or restore (i) Tenant’s Property, (ii) any other portion of the Building has not been fully repaired within the time period specified by Landlord in Landlord’s Notice to Tenant as described in Section 11.1(a). Notwithstanding the provisions of this Article XI, the repair of damage to the Premises Workto the extent such damage is not material shall be governed by Sections 7.1 and 7.2. Notwithstanding anything to the contrary contained in this Section 11.1(c), if for any reasons other than delays caused by Tenant, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has other matters beyond Landlord’s reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessiblecontrol, the Premises shall be deemed and/or the Building have not been substantially repaired within the time period specified in Landlord’s Notice to be wholly unusable (and untenantable) and (ii) with respect Tenant as described in Section 11.1(a), then Tenant may, by written notice to Landlord given at any time thereafter but prior to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) actual date of usable square footage the substantial completion of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction repair of the Premises or the Building by fire Building, elect to terminate this Lease effective thirty (30) days from and after the date of such notice, provided that if Landlord shall substantially complete such repairs on or before the effective date of such termination, then Tenant’s election to terminate this Lease shall thereupon be cancelled and of no further force or effect. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in Landlord’s Notice (for reasons other casualtythan Tenant-caused delays and/or force majeure delays), then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and which Tenant must elect within five (5) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease provided such repairs are substantially completed within thirty (30) days following the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such five (5) day period shall supersede any Requirement providing for be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice.
(d) Commencing on the date of such contingency material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the absence same proportion that the Floor Area of an express agreementthe Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as reasonably determined by Landlord.
(e) Tenant shall fully cooperate with Landlord in removing Tenant’s personal property and any other law debris from the Premises to facilitate all inspections of like nature the Premises and purpose now the making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or hereafter in force, shall have no application in damage to property from entry into the Building or Premises following any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and Section 227 necessary inventory, subject however to all indemnities and waivers of the Real Property Law of the State of New York, which provides for such contingency liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such caseliability which Landlord may reasonably require.
Appears in 1 contract
Sources: Lease (Senorx Inc)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, then subject to the provisions below, Landlord shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; or (ii) proceeds necessary to pay the full cost of the repair are not available from Landlord’s Property Policy and/or from its other property insurance policies (if any), insurance, including without limitation earthquake insurance, plus any additional amounts Tenant elects, at its option, to contribute, excluding, however, the deductible (for which Tenant shall be responsible to reimburse Landlord as a “Project Cost”, subject to the terms and limitations of Section (g) of Exhibit B attached to this Lease). Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice. DocuSign Envelope ID: 7CCC5BBD-E005-4A99-BDC3-12BBFCE51E1A
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days, then either party may elect to terminate this Lease by written notice to the other within 10 business days following delivery of the Casualty Notice. In addition, Tenant may terminate this Lease within 10 business days following receipt of such Casualty Notice if the Building is damagedcasualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to Section 11.1(b), Landlord shall, at Landlord’s sole cost and expense, repair all material damage to the extent Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by Landlord) all property insurance proceeds received therefor (including, without limitation, that payable to Tenant under Tenant's insurance with respect to any Tenant Installations and Landlord shall only be responsible to repair restore any such Tenant Installations. In the Skylight to the extent absence of any such notice from Landlord, restoration of the insurance proceeds assigned Tenant Installations shall be Tenant’s responsibility at its sole cost and promptly paid to Landlord by Tenant expense.
(d) From and only if such Skylight and after the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycasualty event, the “Casualty Work”), subject rental to be paid under this Lease shall be abated in the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to same proportion that the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion Floor Area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total area Floor Area of the Premises.
(e) Notwithstanding anything to the contrary contained in this Section 11.1, and Rent shall be reduced on a floor if for any reasons other than delays caused by floor basis in the same manner and if more than Tenant, or other matters beyond Landlord’s reasonable control (not to exceed thirty (30%) percent of days in the usable square footage of the Premises shall be inaccessibleaggregate), the Premises shall be deemed and/or the Building have not been substantially repaired within the time period specified in the Casualty Notice, then Tenant may, by written notice to be wholly unusable (and untenantable) and (ii) with respect Landlord given at any time thereafter but prior to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) actual date of usable square footage the substantial completion of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction repair of the Premises or the Building by fire or Building, elect to terminate this Lease. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in the Casualty Notice (for reasons other casualtythan Tenant-caused delays and/or force majeure delays not exceeding 30 days in the aggregate), then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and which Tenant must elect within ten (10) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease provided such repairs are substantially completed prior to the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such ten (10) day period shall supersede any Requirement providing for such contingency be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the absence of an express agreementprevious outside date, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of but not as to the Premises or the Building new outside date established by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casesaid notice.
Appears in 1 contract
Sources: Lease Agreement (eHealth, Inc.)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) Tenant’s Property, the Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; (ii) any other portion Mortgagee (defined in Section 13.1) requires that the insurance proceeds be applied to the payment of Landlord’s Premises Work, the mortgage debt; or (iii) any Alterations or improvements proceeds necessary to pay the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion full cost of the Premises that has been damaged repair are not available from Landlord’s insurance, including without limitation earthquake insurance. Should Landlord elect not to repair the damage for one of the normal conduct of businesspreceding reasons, (i) with respect to the Premises, Rent Landlord shall be reduced so notify Tenant in the proportion by that area of the part of the Premises which is not usable “Casualty Notice” (or accessibleas defined below), and this Lease shall terminate as of the date of delivery of that notice, and Tenant shall have no further obligations to Landlord, financial or otherwise. In such circumstance, Landlord shall promptly return the remaining balance of the Security Deposit and any prepayment of rent to the Tenant.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not used by Tenant bears so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days and if the damage is so extensive as to the total area reasonably prevent Tenant’s substantial use and enjoyment of the Premises, and Rent shall be reduced on a floor then either party may elect to terminate this Lease by floor basis in written notice to the same manner and if more than thirty (30%) percent other within 10 days following delivery of the usable square footage Casualty Notice, and Tenant shall have no further obligations to Landlord, financial or otherwise. In such circumstance, Landlord shall promptly return the remaining balance of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (Security Deposit and untenantable) and (ii) with respect any prepayment of rent to the Tenant’s Roof Deck Area.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to Section 11.1(b), Rent Landlord shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of repair all material damage or destruction of to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by fire or other casualtyLandlord) all property insurance proceeds payable to Tenant under Tenant's insurance with respect to any Alterations. Within 15 days of demand, Tenant shall also pay Landlord for any additional excess costs that are reasonably determined during the performance of the repairs to such Alterations.
(d) From and which after the casualty event, the rental to be paid under this Lease shall supersede any Requirement providing for such contingency be abated in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction same proportion that the Floor Area of the Premises or that is rendered unusable by the Building damage from time to time bears to the total Floor Area of the Premises.
(e) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section 11.1, but subject to Section 10.4, the cost of any repairs shall be borne by fire or other casualtyTenant, and Section 227 Tenant shall not be entitled to rental abatement or termination rights, if the damage is due to the fault or neglect of the Real Property Law of the State of New YorkTenant or its employees, which provides for such contingency in the absence of an express agreementsubtenants, and any other law of like nature and purpose now contractors, invitees or hereafter in force, shall have no application in any such caserepresentatives.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are a part, or the parking areas for the Building, are damaged by fire or other as the result of an event of casualty, or if then subject to the Building is damagedprovisions below, Landlord shall, to shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the extent Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; (ii) any Mortgagee (defined in Section 13.1) requires that the insurance proceeds received therefor be applied to the payment of the mortgage debt; or (includingiii) proceeds necessary to pay the full cost of the repair are not available from Landlord’s insurance, including without limitation, that limitation earthquake insurance. Should Landlord shall only be responsible elect not to repair the Skylight to the extent damage for one of the insurance proceeds assigned and promptly paid to preceding reasons, Landlord by shall so notify Tenant and only if such Skylight and in the entire roof membrane surrounding such Skylight is substantially damaged“Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice. If Landlord has the right to terminate this Lease pursuant to this Section 11.1(a), Landlord agrees to exercise such right in a nondiscriminatory fashion among tenants in the Building. Consideration of the following factors in arriving at its decision shall not be responsible only deemed discriminatory: length of term remaining on the Lease, time needed to repair and restore, costs of repair and restoration not covered by insurance proceeds, Landlord's plans to repair and restore Common Areas serving the Building Premises, Landlord's plans for repair and restoration of the Building, and other factors (including other than the Common Areasrental rates payable under the leases in question) Base Building Work and relevant to Landlord's decision as long as they are applied to Tenant in the Base Building Roof Work same manner as other tenants.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to substantially the condition it existed prior to such event (collectivelyterminate this Lease. If this Lease is not so terminated, the “Casualty Work”)Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 180 days and if the damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises, subject then either party may elect to terminate this Lease by written notice to the provisions other within 10 days following delivery of any Mortgage or Superior Leasethe Casualty Notice. In addition, but Landlord shall have no obligation to repair or restore if (i) Tenant’s Propertythe Premises have been materially damaged and there is less than 1 year of the Term remaining at the date of casualty, and (ii) any other portion the material damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 , then Tenant may elect to terminate this Lease by written notice to Landlord within 15 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises casualty.
(c) In the event that has been damaged for the normal conduct of business, (i) with respect neither Landlord nor Tenant terminates this Lease pursuant to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessibleSection 11.1(b), and is not used by Tenant bears Landlord shall repair all material damage to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by fire or other casualtyLandlord) all property insurance proceeds payable to Tenant under Tenant’s insurance with respect to any Tenant Installations; provided if the estimated cost to repair such Tenant Installations exceeds the amount of insurance proceeds received by Landlord from Tenant’s insurance carrier, the excess cost of such repairs shall be paid by Tenant to Landlord prior to Landlord’s commencement of repairs. Within 15 days of demand, Tenant shall also pay Landlord for any additional excess costs that are determined during the performance of the repairs to such Tenant Installations.
(d) From and which after the 6th business day following the casualty event, the rental to be paid under this Lease shall supersede any Requirement providing for such contingency be abated in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction same proportion that the Floor Area of the Premises or that is rendered unusable by the Building damage from time to time bears to the total Floor Area of the Premises. Notwithstanding the foregoing, if the Premises are partially destroyed and the remaining portion is not usable for Tenant's business purposes, the rental abatement described herein shall apply to the entire Premises.
(e) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section 11.1, but subject to Section 10.5, the cost of any repairs shall be borne by fire or other casualtyTenant, and Tenant shall not be entitled to rental abatement or termination rights, if the damage is due to the willful misconduct of Tenant or its employees, subtenants, contractors, invitees or representatives. In addition, the provisions of this Section 227 of the Real Property Law of the State of New York11.1 shall not be deemed to require Landlord to repair any Tenant Installations, which provides for such contingency in the absence of an express agreement, fixtures and other items that Tenant is obligated to insure pursuant to Exhibit D or under any other law provision of like nature and purpose now or hereafter this Lease, except as expressly provided in force, shall have no application in any such caseSection 11.1(c).
Appears in 1 contract
Sources: Lease Agreement (Lantronix Inc)
Restoration. (a) If either of the Buildings of which the Premises are a part is damaged by fire or other as the result of an event of casualty, then subject to the provisions below, Landlord shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty or (ii) proceeds necessary to pay the full cost of the repair are not available from Landlord’s Property Policy and/or from its other property insurance policies (if any), insurance, including without limitation earthquake insurance plus any additional amounts Tenant elects, at its option, to contribute, excluding, however, the deductible (for which Tenant shall be responsible to reimburse Landlord as a “Project Cost”, subject to the terms and limitations of Section (g) of Exhibit B attached to this Lease). Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice; provided, however, that in the event that only one and not both of the Buildings is materially damaged as described in this Subsection 11.1(a), then the Lease shall terminate as to the damaged Building only and shall remain in effect as to the other non-damaged Building (with an appropriate reduction in the Basic Rent and Tenant’s Share of Operating Expenses to account for any reduction in the Floor Area of the Premises, effective as of the date of such Casualty Notice.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease as provided in Subsection 11.1(a) above. If this Lease is not so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days, then either party may elect to terminate this Lease by written notice to the other within 10 business days following delivery of the Casualty Notice. In addition, Tenant may terminate this Lease within 10 business days following receipt of such Casualty Notice if the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If termination is elected pursuant to this Section 11.1(b), then the Lease shall terminate as to the damaged Building is damagedonly and shall remain in effect as to the other non-damaged Building (with an appropriate reduction in the Basic Rent and Tenant’s Share of Operating Expenses to account for any reduction in the Floor Area of the Premises, effective as of the date of such Casualty Notice.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to Section 11.1(b), Landlord shall, at Landlord’s sole cost and expense, repair all material damage to the extent Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by Landlord) all property insurance proceeds received therefor (including, without limitation, that payable to Tenant under Tenant's insurance with respect to any Tenant Installations; and Landlord shall only be responsible to repair restore any such Tenant Installations. In the Skylight to the extent absence of any such notice from Landlord, restoration of the insurance proceeds assigned Tenant Installations shall be Tenant’s responsibility at its sole cost and promptly paid to Landlord by Tenant expense.
(d) From and only if such Skylight and after the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycasualty event, the “Casualty Work”), subject rental to be paid under this Lease shall be abated in the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to same proportion that the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion Floor Area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total area Floor Area of the Premises.
(e) Notwithstanding, and Rent shall be reduced on a floor anything to the contrary contained in this Section 11.1, if for any reasons other than delays caused by floor basis in the same manner and if more than Tenant, or other matters beyond Landlord’s reasonable control (not to exceed thirty (30%) percent of days in the usable square footage of the Premises shall be inaccessibleaggregate), the Premises shall be deemed has not been substantially repaired within the time period specified in the Casualty Notice, then Tenant may, by written notice to be wholly unusable (and untenantable) and (ii) with respect Landlord given at any time thereafter but prior to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) actual date of usable square footage the substantial completion of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction repair of the Premises or the Building, elect to terminate this Lease; provided, however, that in the event that only one and not both of the Buildings is materially damaged as described in Subsection 11.1(a) above, then the Lease shall terminate as to the damaged Building by fire or only and shall remain in effect as to the other casualtynon-damaged Building (with an appropriate reduction in the Basic Rent and Tenant’s Share of Operating Expenses to account for any reduction in the Floor Area of the Premises, effective as of the date of such Casualty Notice. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in the Casualty Notice (for reasons other than Tenant-caused delays and/or force majeure delays not exceeding 30 days in the aggregate), then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and which Tenant must elect within ten (10) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease (as provided in this Subsection 11.1(e)) provided such repairs are substantially completed prior to the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such ten (10) day period shall supersede any Requirement providing for such contingency be deemed Tenant’s waiver of its right to terminate this Lease as provided in this Subsection 11.1(e) as to the absence of an express agreementprevious outside date, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of but not as to the Premises or the Building new outside date established by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casesaid notice.
Appears in 1 contract
Sources: Lease (Arista Networks, Inc.)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualtycasualty (including but not limited to, the contamination of the Premises and/or the Building by Hazardous Materials not caused or knowingly permitted by Tenant or by any Tenant Party which contamination renders the Premises unsafe for occupancy by Tenant), then Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord's Property Policy (regardless of whether Landlord self-insures such coverage), or from any earthquake insurance carried by Landlord, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured monetary Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall supersede any Requirement providing terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such contingency in date is specified, such termination shall be the absence date of an express agreementLandlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and any other law provided that at the time of like nature and purpose now or hereafter in forceLandlord's Notice no uncured monetary Event of Default exists, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within twenty (20) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such twenty (20) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Restoration. Paragraph 12 of the Original Lease shall be, and hereby is, deleted in its entirety and replaced with the following: If that portion of the Building in which the Premises are damaged is situated is totally destroyed by fire storm, fire, lightning, earthquake or other casualty, or if this Lease shall terminate as of the date of such destruction and rent shall be accounted for as between Landlord and Tenant as of that date. If such portion of the Building is damageddamaged but not wholly destroyed by any such casualty, Landlord shall, to the extent rent shall ▇▇▇▇▇ in such proportion as use of the insurance proceeds received therefor (includingPremises has been destroyed, without limitation, that and Landlord shall only be responsible to repair restore the Skylight to the extent such portion of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if Building within two hundred seventy (270) days following any such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work casualty to substantially the same building shell condition it existed prior that Original Landlord delivered to such event (collectively, Tenant under the “Casualty Work”), subject to the provisions of any Mortgage or Superior Original Lease, but Landlord whereupon full rent shall have no obligation to repair or restore recommence; provided, however, that if (i) Tenant’s Propertysuch portion of the Building is more than fifty percent (50%) damaged or destroyed, in Landlord's reasonable judgment, or (ii) any other such portion of Landlord’s Premises Workthe Building is damaged or destroyed during the last twelve (12) months of the Extension Term, or (iii) a Mortgagee does not make available insurance proceeds for rebuilding or repair, then and in any Alterations such events, Landlord may, at its option, terminate this Lease by delivering notice in writing to Tenant within sixty (60) days after the day of such occurrence. Landlord may also elect to terminate this Lease in any of the following cases of damage or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access destruction to the Premises, or the Building: (2i) where the cost of rebuilding, repairing and restoring (collectively, “Restoration”) the date on which Tenant occupies Building or the Premises, would, regardless of the lack of damage to the Premises or access thereto, in the reasonable opinion of Landlord, exceed fifty percent (50%) of the then replacement cost of the Building; (ii) where, in the case of any damage or destruction to any portion of the Building or the Premises that has been damaged for by uninsured casualty, the normal conduct cost of business, (i) with respect to Restoration of the Building or the Premises, Rent shall be reduced in the proportion reasonable opinion of Landlord, exceeds $500,000; or (iii) where, in the case of any damage or destruction to the Premises or access thereto by that area uninsured casualty, the cost of the part Restoration of the Premises which is not usable or access thereto, in the reasonable opinion of Landlord, exceeds fifty percent (or accessible), and is not used by Tenant bears to 50%) of the total area replacement cost of the Premises, and Rent ; or (iv) if Landlord has not obtained appropriate zoning approvals for reconstruction of the Building or Premises. Any such termination shall be reduced on a floor made by floor basis in the same manner and if more than thirty (30%) percent days’ prior written notice to Tenant given within ninety (90) days of the usable square footage date of such damage or destruction. If this Lease is not terminated by Landlord and as the Premises shall be inaccessibleresult of any damage or destruction, the Premises Premises, or a portion thereof, are rendered untenantable, the Monthly Base Rent shall be deemed ▇▇▇▇▇ reasonably during the period of Restoration (based upon the extent to be wholly unusable (which such damage and untenantable) and (ii) Restoration materially interfere with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if business in the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0Premises). This Article 11 constitutes Lease shall be considered an express agreement governing any case of damage to or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseBuilding.
Appears in 1 contract
Sources: Build to Suit Lease Agreement (Schiff Nutrition International, Inc.)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty twenty-five percent (3025%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building are damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon Written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant’s Share), (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage, (iii) an uncured Event of Default by Tenant has occurred, or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1 (a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casually, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (Mirion Technologies, Inc.)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the extent deductible (for which Tenant shall be responsible for Tenant's proportionate share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the insurance proceeds received therefor presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (including270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (i) whether Landlord is terminating this Lease as a result of the damage and (ii) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord's Notice).
(b) If Landlord does not elect to terminate this Lease under subsection (a), and provided that Tenant is not in default under this Lease (with all applicable notice of default having been given, and applicable cure periods having expired without limitationTenant having cured such default) then within ten (10) days following delivery of Landlord's Notice pursuant to subsection (a) above, Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) if the damage has occurred within the final twelve (12) months of the Term. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall only be responsible deemed to repair have waived any termination right under this subsection or any other applicable law. In the Skylight event that neither Landlord nor Tenant terminates this Lease pursuant to this Section as a result of damage to the extent Building or Premises, then Landlord shall thereafter repair that damage as soon as reasonably possible and this Lease shall continue in effect for the remainder of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged)Term, be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but provided that Landlord shall have no obligation as to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, leasehold improvements made by Tenant or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced as defined in the proportion by that area of the part of the Premises which is not usable (or accessibleSection 7.3), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall proceed diligently and in good faith to obtain all required permits and to repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the extent deductible (for which Tenant shall be responsible for Tenant's proportionate share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the insurance proceeds received therefor presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (including, without limitation, that 270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord shall only be responsible elect not to repair the Skylight damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within thirty (30) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the thirty (30) day period stated in subsection (a).
(c) Commencing on the date of any damage to the extent Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Building that is rendered unusable by the damage from time to time bears to the total floor area of the Building, provided that Tenant is then carrying the required business interruption insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and described in EXHIBIT D.
(d) Notwithstanding the entire roof membrane surrounding such Skylight is substantially damagedprovisions of subsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the negligence of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant's Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within three hundred sixty five (365) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term as the Term maybe extended to Tenant pursuant to Section 3.3. Landlord shall notify Tenant in writing ("LANDLORD'S NOTICE") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Premises Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.Premises resulting from a
Appears in 1 contract
Sources: Lease Agreement (Hyseq Inc)
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered to Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord's repair of material damage shall be at Landlord's sole cost and expense except for any insurance deductible (for which Tenant shall "be responsible for Tenant's Share). Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of Landlord's repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord's Notice to Tenant as described in Section 11.1(a). Notwithstanding the provisions of this Article XI, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2. Notwithstanding anything to the contrary contained in this Section 11.1(c), if for any reasons other than delays caused by Tenant or other matters beyond Landlord's reasonable control, the Premises and/or the Building have not been substantially repaired within three hundred sixty-five (365) days after the date of the insurance proceeds received therefor damage, then Tenant may, by written notice to Landlord given at any time thereafter but prior to the actual date of the substantial completion of the repair of the Premises or the Building, elect to terminate this Lease effective thirty (including30) days from and after the date of such notice to Landlord, without limitation, provided that if Landlord shall substantially complete such repairs on or before the effective date of such termination, then Tenant's election to terminate this Lease shall thereupon be cancelled and of no further force or effect. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond that date which is three hundred sixty-five (365) days after the date of the damage, then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and Tenant must elect within five (5) business days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease, provided such repairs are substantially completed (but for Tenant-caused delays and/or force-majeure delays) within thirty (30) days following the new outside date established by Landlord in such notice to Tenant. Tenant's failure to elect to terminate this Lease within such five (5) business day period shall be deemed Tenant's waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice.
(d) Commencing on the date of such material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as determined by Landlord, but only be responsible to repair the Skylight to the extent that Landlord is entitled to reimbursement from the proceeds of the business interruption insurance proceeds assigned and promptly paid required to Landlord be maintained by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), pursuant to Exhibit D.
(e) Landlord shall not be responsible only required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and restore Tenant shall continue to be obligated to so repair or replace any such improvements or fixtures, notwithstanding any provisions to the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycontrary in this Article XI. In addition, the “Casualty Work”), but subject to the provisions of any Mortgage Section 10.5, in the event the damage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements destruction to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (Premises or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access Building are due in substantial part to the Premisesfault or neglect of Tenant or its employees, subtenants, invitees or (2) representatives, the date on which Tenant occupies the portion costs of such repairs or replacement to the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent or Building shall be reduced borne by Tenant, and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the proportion by that area provisions of the part of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any debris from the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area facilitate all inspections of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Lease Agreement (Hireright Inc)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, then subject to the provisions below, Landlord shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty or (ii) proceeds necessary to pay the full cost of the repair are not available from Landlord’s Property Policy and/or from its other property insurance policies (if any), insurance, including without limitation earthquake insurance plus any additional amounts Tenant elects, at its option, to contribute, excluding, however, the deductible (for which Tenant shall be responsible to reimburse Landlord as a “Project Cost”, subject to the terms and limitations of Section (g) of Exhibit B attached to this Lease). Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days, then either party may elect to terminate this Lease by written notice to the other within 10 business days following delivery of the Casualty Notice. In addition, Tenant may terminate this Lease within 10 business days following receipt of such Casualty Notice if the Building is damagedcasualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to Section 11.1(b), Landlord shall, at Landlord’s sole cost and expense, repair all material damage to the extent Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by Landlord) all property insurance proceeds received therefor (including, without limitation, that payable to Tenant under Tenant’s insurance with respect to any Tenant Installations; and Landlord shall only be responsible to repair restore any such Tenant Installations. In the Skylight to the extent absence of any such notice from Landlord, restoration of the insurance proceeds assigned Tenant Installations shall be Tenant’s responsibility at its sole cost and promptly paid to Landlord by Tenant expense.
(d) From and only if such Skylight and after the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycasualty event, the “Casualty Work”), subject rental to be paid under this Lease shall be abated in the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to same proportion that the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion Floor Area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total area Floor Area of the Premises.
(e) Notwithstanding, and Rent shall be reduced on a floor anything to the contrary contained in this Section 11.1, if for any reasons other than delays caused by floor basis in the same manner and if more than Tenant, or other matters beyond Landlord’s reasonable control (not to exceed thirty (30%) percent of days in the usable square footage of the Premises shall be inaccessibleaggregate), the Premises shall be deemed has not been substantially repaired within the time period specified in the Casualty Notice, then Tenant may, by written notice to be wholly unusable (and untenantable) and (ii) with respect Landlord given at any time thereafter but prior to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) actual date of usable square footage the substantial completion of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction repair of the Premises or the Building by fire or Building, elect to terminate this Lease. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in the Casualty Notice (for reasons other casualtythan Tenant-caused delays and/or force majeure delays not exceeding 30 days in the aggregate), then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and which Tenant must elect within ten (10) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease provided such repairs are substantially completed prior to the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such ten (10) day period shall supersede any Requirement providing for such contingency be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the absence of an express agreementprevious outside date, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of but not as to the Premises or the Building new outside date established by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casesaid notice.
Appears in 1 contract
Sources: Lease (Arista Networks, Inc.)
Restoration. If Subject to the Premises are damaged by fire or other casualty, or if rights of Mortgage Lender under the Building is damaged, Landlord shall, Mortgage Loan Documents and only to the extent the Mortgage Loan is not outstanding and has been paid in full, the following provisions shall apply in connection any Restoration of the Property (other than Section 7.4(b)(iii) below which shall apply both prior to and after the repayment of the Mortgage Loan):
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower or Mortgage Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.
(i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds received therefor proceeds, less than thirty percent (30%) of each of (i) the fair market value of the Property as reasonably determined by Lender, and (ii) the rentable area of the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than fifteen percent (15%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) the rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no material portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than seventy-five percent (75%) of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the Property after the completion of the Restoration;
(D) Borrower shall cause Mortgage Borrower to commence the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all Applicable Laws, including, without limitation, all applicable Environmental Laws;
(E) Lender shall be satisfied that Landlord shall only any operating deficits which will be responsible to repair the Skylight incurred with respect to the extent Property as a result of the occurrence of any such Casualty or Condemnation will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Mortgage Borrower or Borrower;
(F) Lender shall be satisfied that, upon the completion of the Restoration, the Underwritable Cash Flow of the Property will be sufficient to cover all carrying costs and operating expenses of the Property;
(G) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the expiration of the insurance proceeds assigned and promptly paid coverage referred to Landlord by Tenant and only if in Section 7.1(a)(iii) of the Mortgage Loan Agreement, or (3) such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged)time as may be required under applicable zoning law, be responsible only ordinance, rule or regulation in order to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work Property to substantially the condition it existed was in immediately prior to such event Casualty or Condemnation;
(collectively, the “Casualty Work”), subject H) Borrower shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to the provisions of any Mortgage or Superior Leasewhich Borrower shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b);
(I) the Property and the use thereof after the Restoration will be in material compliance with and permitted under the Property Documents and all Applicable Law;
(J) the Property Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, but Landlord Condemnation and/or Restoration; and
(K) the Restoration shall have no obligation to repair or restore (i) Tenant’s Property, be done and completed in a reasonably expeditious and diligent fashion and in material compliance with the Property Documents and all Applicable Law.
(ii) The Net Proceeds shall be held by Lender in an interest-bearing account (bearing interest at a rate established by Lender, which may or may not be the highest rate then available) and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Pledge Agreement, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other portion liens or encumbrances of Landlord’s Premises Work, any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), such acceptance not to be unreasonably withheld, conditioned or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such acceptance not to be unreasonably withheld, conditioned or delayed. All reasonable costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s reasonable fees, shall be paid by Mortgage Borrower or Borrower. Mortgage Borrower shall have the right to settle all claims under the Policies (subject to Lender’s approval of the final settlement, which approval shall not be unreasonably withheld, conditioned or delayed), provided that (a) no Event of Default exists, (b) Mortgage Borrower promptly and with commercially reasonable diligence negotiates a settlement of any Alterations or improvements such claims and (c) the insurer with respect to the PremisesPolicy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. Until If an Event of Default exists, Lender shall, at its election, have the date which is exclusive right to settle or adjust any claims made under the earlier Policies in the event of a Casualty.
(1iv) 120 days following In no event shall Lender be obligated to make disbursements of the date on which Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Work is Substantially Completed (or would Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been Substantially Completed but disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Mortgage Borrower for Tenant Delaywork in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Mortgage Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and Tenant has reasonable access that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the Premisescosts of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, or (2) the date on which Tenant occupies provided, however, that Lender will release the portion of the Premises Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has been damaged for satisfactorily completed all work and has supplied all materials in accordance with the normal conduct provisions of businessthe contractor’s, (i) subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the Premisescontractor, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (subcontractor or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casematerialman.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Cole Corporate Income Trust, Inc.)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the any Building is damageddamaged (each a “Damaged Building” and collectively the “Damaged Buildings”), Landlord shallshall diligently repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord’s fire and extended coverage insurance (or, if Landlord is self-insuring, would not be covered by a standard “all-risk” policy, subject to standard exclusions), plus such additional amounts Tenant elects, at its option, to contribute, excluding however the extent deductible (for which Tenant shall be responsible for Tenant’s Share); or (ii) Landlord reasonably determines that the Damaged Building(s) cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the insurance proceeds received therefor presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (including, without limitation, that 270) days after the date of the damage; or (iii) the damage occurs during the final twelve (12) months of the Term with respect to the Damaged Building(s). Should Landlord shall only be responsible elect not to repair the Skylight damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate with respect to the extent Damaged Building(s) only as of the insurance proceeds assigned date of that notice.
(b) Unless Landlord elects to terminate this Lease with respect to the Damaged Building(s) in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term with respect to the Damaged Building(s) and Landlord shall promptly paid notify Tenant in writing of Landlord’s election to restore the Damaged Building(s) and of the time Landlord estimates to complete such restoration; provided that so long as Tenant is not in default under this Lease beyond any applicable cure period, if the damage is so extensive that Landlord reasonably determines that the Damaged Building(s) cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant’s substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease with respect to the Damaged Building(s) by written notice to Landlord by Tenant and only if such Skylight and within the entire roof membrane surrounding such Skylight sixty (60) day period stated in subsection (a). To the extent space is substantially damagedavailable in Landlord’s portfolio to satisfy Tenant’s temporary space requirements during any period of restoration of any Damaged Building(s), be responsible only Landlord shall make such space available to repair Tenant at a fair market rental rate.
(c) Commencing three (3) business days following the date of any damage to any of the Buildings, and restore ending on the Building (including sooner of the Common Areas) Base Building Work and date the Base Building Roof Work to substantially damage is repaired or the condition it existed prior to such event (collectivelydate this Lease is terminated, the “Casualty Work”rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Damaged Building that is rendered unusable by the damage from time to time bears to the total floor area of the Damaged Building.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, and subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives, but only to the extent such damage is not covered by a standard policy of “all risk” insurance (whether or not Landlord is self-insuring). In addition, the provisions of this Section shall have no obligation not be deemed to require Landlord to repair any improvements or fixtures that Tenant is obligated to repair or restore insure pursuant to any other provision of this Lease.
(ie) Tenant shall fully cooperate with Landlord in removing Tenant’s Propertypersonal property and any non-structured debris from the Damaged Building(s) to facilitate all inspections of the Damaged Building(s) and the making of any repairs. Notwithstanding anything to the contrary contained in this Lease, (ii) if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the applicable Building following any other portion damage or destruction thereto, Landlord may restrict entry into the Building by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of Landlord’s Premises Workquiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Building. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building solely in order to allow Tenant to retrieve files, data in computers, and necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in this Lease and any additional indemnities and waivers of liability which Landlord may require. If damage or destruction rendering any Building unusable occurs during the final twelve (iii12) months of the Term of the Phase of which such Building is a part, or during the final twelve (12) months of any Alterations extension period thereof, which cannot be repaired within one hundred twenty (120) days following such damage or improvements destruction, Tenant shall have the option to terminate the Lease as to the Premisesapplicable Building by providing Landlord written notification of Tenant’s election to terminate within thirty (30) days after the damage occurs. Until For all purposes of this Section 11.1, damage to the date parking areas and access to any Building shall be deemed damage to the Building.
(f) In the event this Lease is terminated pursuant to Section 11.l with respect to one or more Buildings only, Tenant’s obligation to pay Basic Rent shall decrease by the amount of Basic Rent payable with respect to such Building(s). This amount shall be equal to the product of the Basic Rent for the Phase in which such Building(s) exists multiplied by a fraction, the numerator of which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that floor area of the part Building(s) for which the Lease has terminated and the denominator of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total floor area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casePhase.
Appears in 1 contract
Sources: Sublease Agreement (Palm Inc)
Restoration. (a) If the Office Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, shall repair that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore damage as soon as reasonably possible at its expense unless: (i) Tenant’s Property, the damage is not covered by Landlord's fire and extended coverage insurance; or (ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Work, repair would exceed twenty-five percent (25%) of the full replacement cost of the Office Building (Replacement Cost); or (iii) Landlord reasonably determines that the cost a repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs, and this Lease shall terminate as of the date of notice;
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that if the damage is so extensive as to reasonably prevent Tenant's substantial use and enjoyment of the Premises for more than nine (9) months, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty-(60)-day period stated in subsection (a).
(c) Commencing on the date of any Alterations or improvements damage to the Premises. Until Office Building and ending on the sooner of the date which the damage is the earlier of (1) 120 days following repaired or the date on which this Lease is terminated, the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access rental to be paid under this Lease shall be abated in the Premises, or (2) same proportion that the date on which Tenant occupies the portion floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a) (b) and (c) of this Section, and Rent the cost of any repairs shall be reduced on a floor borne by floor basis in Tenant and Tenant shall not be entitled to rental abatement or termination rights if the same manner and if more than thirty (30%) percent damage is due to the fault or neglect of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, invitees or representatives. In addition, the Premises provisions of this Section shall not be deemed to be wholly unusable (and untenantable) and (ii) with respect require Landlord to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (repair any improvements or more) of usable square footage of Tenant’s Roof Deck Area fixtures that Tenant is not usable (obligated to repair or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and insure pursuant to any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in EXHIBIT D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Industrial Lease (Naturade Inc)
Restoration. If (a) In the Premises are event the Building is damaged by fire or other casualtyperils covered by extended coverage insurance to an extent not exceeding twenty-five percent (25%) of the full insurable value thereof and if the damage thereto is such that the Building may be repaired, reconstructed or restored within a period of ninety (90) days from the date of the happening of such casualty and Landlord will receive insurance proceeds sufficient to cover the cost of such repairs, Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and the Lease shall continue in full force and effect. If such work of repair, reconstruction and restoration is such as to require a period longer than ninety (90) days or exceeds twenty-five percent (25%) of the full insurable value thereof or if said insurance proceeds will not be sufficient to cover the cost of such repairs, Landlord may either elect to so repair, reconstruct or restore and this Lease shall continue in full force and effect, or if Landlord may elect not to repair, reconstruct or restore and the Building is damagedLease shall in such event terminate. Under any of said conditions, Landlord shall, shall give written notice to the extent Tenant of its intention within ninety (90) days of the insurance proceeds received therefor (including, without limitation, that occurrence of such damage. In the event Landlord shall only be responsible elects not to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelyBuilding, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord this Lease shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until terminate on the date which is the earlier of thirty (130) 120 days following the date on which Tenant receives Landlord's written notice indicating Landlord's election to terminate.
(b) In the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building is damaged or destroyed to the extent of more than ten percent (10%) of its replacement cost by a casualty not covered by a standard fire or other casualtyand extended coverage policy of fire insurance, and which shall supersede any Requirement providing for Landlord may elect to terminate this Lease on the date thirty (30) days following Tenant's receipt of Landlord's written notice of Landlord's election to terminate this Lease. If such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction is not to such extent, or if Landlord does not elect to terminate this Lease following such damage, Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and this Lease shall continue in full force and effect.
(c) In the event of any casualty damage, the rental provided to be paid under this Lease shall be abated proportionately in the ratio which the Premises are rendered unusable from the date of destruction through the period of such repair, reconstruction or restoration unless (i) the Premises were unusable for a period of three (3) business days or less, or (ii) the damage is due to the fault or neglect of Tenant, its agents or employees. Tenant shall not be released from any of its obligations under this Lease except to the extent and upon the conditions expressly stated in this Section 10.1.
(d) If the then existing laws do not permit the restoration described in this Section 10.1, Landlord may terminate this Lease by giving written notice to Tenant, in which event this Lease shall terminate thirty (30) days following Tenant's receipt of such notice.
(e) Notwithstanding anything to the contrary contained in this Article, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises or any portion of the Building by fire or other casualty, and Section 227 when the damage occurs during the last twenty-four (24) months of the Real Property Law term of this Lease or any extension thereof.
(f) No damages, compensation or claim shall be payable by Landlord by reason of any injury to or interference with Tenant's business or property arising from any damage or destruction or the making of any repairs, alterations or improvements in or to any portion of the State of New YorkBuilding or the Premises or in or to fixtures, which provides for such contingency appurtenances and equipment therein.
(g) Landlord's obligation to repair, reconstruct or restore Tenant's leasehold improvements in the absence Premises shall be limited to those leasehold improvements originally installed at Landlord's expense; the repair and restoration of an express agreement, and any other law leasehold improvements shall be promptly performed by Tenant, at Tenant's sole cost and expense, subject to the requirements of like nature and purpose now or hereafter in force, shall have no application in any such caseSection 6.4 applicable to Tenant's alterations to the Premises.
Appears in 1 contract
Sources: Office Space Lease (DVD Express Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance (including any portion of such coverage which Landlord has elected to self-insure) plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's proportionate share, except to the extent that Landlord's self-insurance coverage is in lieu of such deductible); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the insurance proceeds received therefor presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (including, without limitation, that 270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord shall only be responsible elect not to repair the Skylight damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within thirty (30) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the thirty (30) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Building that is rendered unusable by the damage from time to time bears to the total floor area of the Building, but only to the extent of the that any business interruption insurance proceeds assigned and promptly paid are or will be received by Landlord therefor from Tenant's insurance described in Exhibit D. Notwithstanding the foregoing, rental shall abat▇ ▇▇▇ such period in all events to Landlord the extent the casualty was caused by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedactions with Landlord, its employees, authorized agents or contractors.
(d) Notwithstanding the provisions of subsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Industrial Lease (Mai Systems Corp)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) Tenant’s Property, the Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; (ii) any other portion Mortgagee (defined in Section 13.1) requires that the insurance proceeds be applied to the payment of Landlord’s Premises Work, the mortgage debt; or (iii) any Alterations or improvements proceeds necessary to pay the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion full cost of the Premises that has been damaged repair are not available from Landlord’s insurance, including without limitation earthquake insurance. Should Landlord elect not to repair the damage for one of the normal conduct of businesspreceding reasons, (i) with respect to the Premises, Rent Landlord shall be reduced so notify Tenant in the proportion by that area of the part of the Premises which is not usable “Casualty Notice” (or accessibleas defined below), and this Lease shall terminate as of the date of delivery of that notice; provided that Tenant shall have a reasonable amount of time thereafter to remove its personal property from the Premises and to otherwise vacate the Premises.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not used by Tenant bears so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days, or during the last nine (9) months of the Lease Term, and if the damage is so extensive as to the total area reasonably prevent Tenant’s substantial use and enjoyment of the Premises, and Rent shall be reduced on a floor then either party may elect to terminate this Lease by floor basis in written notice to the same manner and if more than thirty (30%) percent other within 10 days following delivery of the usable square footage of Casualty Notice.
(c) In the Premises event that neither Landlord nor Tenant terminates this Lease pursuant to Section 11.1(b), Landlord shall be inaccessible, the Premises shall be deemed repair all material damage to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by fire or other casualtyLandlord) all property insurance proceeds payable to Tenant under Tenant's insurance with respect to any Alterations. Within 15 days of demand, Tenant shall also pay Landlord for any additional excess costs that are determined during the performance of the repairs to such Alterations.
(d) From and which after the casualty event, the rental to be paid under this Lease shall supersede any Requirement providing for such contingency be abated in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction same proportion that the Floor Area of the Premises or that is rendered unusable by the Building damage from time to time bears to the total Floor Area of the Premises.
(e) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section 11.1, but subject to Section 10.4, the cost of any repairs shall be borne by fire or other casualtyTenant, and Section 227 Tenant shall not be entitled to rental abatement or termination rights, if the damage is due to the gross neglect of the Real Property Law of the State of New YorkTenant or its employees, which provides for such contingency in the absence of an express agreementsubtenants, and any other law of like nature and purpose now contractors, invitees or hereafter in force, shall have no application in any such caserepresentatives.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's proportionate share not to exceed Fifteen Thousand Dollars ($15,000.00); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage exceeds twenty percent (20%) of the replacement cost of the Building and occurs during the final twelve (12) months of the Term unless Tenant has then exercised or then elects to exercise its option to extend the Lease Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice. In addition to the foregoing, if the Building is damaged during the last twelve (12) months of the Lease Term, or any extension thereof, and such damage exceeds twenty percent (20%) of the replacement cost of the Building, Tenant shall have the right to terminate the Lease as of the date of such damage or destruction by written notice given to Landlord within thirty (30) days after the occurrence of such damage or destruction.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Building that is rendered unusable by the damage from time to time bears to the total floor area of the Building, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in EXHIBIT D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the negligence or willful misconduct of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may reasonably require.
Appears in 1 contract
Sources: Industrial Lease (Scoop Inc/De)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damageddamaged as the result of an event of casualty, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), then subject to the provisions of any Mortgage or Superior Leasebelow, but Landlord shall have no obligation to repair or restore that damage as soon as reasonably possible unless: (i) TenantLandlord reasonably determines that the cost of repair would exceed ten percent (10%) of the full replacement cost of the Building (“Replacement Cost”) and the damage is not covered by Landlord’s Property, fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to carry that insurance); or (ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Work, repair would exceed twenty-five percent (25%) of the Replacement Cost; or (iii) any Alterations or improvements Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the Premises. Until damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date which is the earlier of delivery of that notice.
(1b) 120 days As soon as reasonably practicable following the date on which casualty event but not later than sixty (60) days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Work Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds two hundred seventy (270) days and if the damage is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) so extensive as to reasonably prevent Tenant’s substantial use and Tenant has reasonable access to enjoyment of the Premises, or then Tenant may elect to terminate this Lease by written notice to Landlord within ten (210) business days following delivery of the date on which Casualty Notice.
(c) Provided that Tenant occupies is not in default, the portion rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, but subject to Section 10.5, the cost of any repairs shall be borne by Tenant, and Rent Tenant shall not be reduced on a floor by floor basis in entitled to rental abatement or termination rights, if the same manner and if more than thirty (30%) percent damage is due to the fault or neglect of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, contractors, invitees or representatives. In addition, the Premises provisions of this Section shall not be deemed to be wholly unusable (require Landlord to repair any Tenant Installations, fixtures and untenantable) and (ii) with respect other items that Tenant is obligated to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (insure pursuant to Exhibit D or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Restoration. If In the Premises event of the partial or total damage or destruction of the building of which the demised premises are damaged by fire a part during the term hereof from any cause, except if due to the negligent acts or other casualtyemissions of Tenant its agents or employees, or if to the Building is damagedfailure on the part of Tenant to perform or observe any of Tenants covenants or conditions contained herein, Landlord shall, to the extent of the proceed available to Landlord from the insurance proceeds received therefor (includingreferred to in Station 9.3 hereof, without limitationforthwith repair and reconstruct said building to substantially the same condition which said building was in immediately prior to such damage or destruction, that Landlord provided such repairs a reconstruction can be made under then existing laws and regulations. In the event of such reconstruction, Tenant, at its sole cost and expense, shall only be responsible for the repair and restoration of all items set forth in "Description of Tenant's Work" in Exhibit B and all improvements within Premises as those existing immediately prior to the casualty, and the replacement of its stock-in-trade, trade fixture, furniture, furnishings and equipment and Tenant shall commence such repair and restoration and the installation of fixtures, equipment and merchandise promptly upon delivery to it of possession of the demised premises and shall diligently pursue such work and installation to completion. With respect to any damage a destruction which Landlord is obligated to repair or any elect to repair order the Skylight terms of this Article, Tenant hereby waives the provisions of any law authorizing the termination of a lease upon the complete or partial destruction of the demised premises. Notwithstanding anything above m the contrary, in the event the demised promises ere partially or totally damaged or destroyed by a cause or casualty other than those covered by said insurance, or by any cause at any time during the last two (2) years of the term hereof or in the event the demised premises are, or the building in which the demised promises are situated is, damaged or destroyed by any cause or casualty to the extent of not less than thirty-three and one-third percent (33-1/3%) of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if replacement cost thereof at the time of such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage damage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Workdestruction, or if in the sole opinion of Landlord the restoration of the demised premises cannot be completed within six (iii6) any Alterations months from the occurrence of the damage or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premisesdestruction, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced if in the proportion sole opinion of Landlord repairs cannot be adequately made, then Landlord may elect to terminate this Lease by that area giving written notice to Tenant of such termination within ninety (90) days after the part occurrence of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of such damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casedestruction.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, then subject to the provisions below, Landlord shall repair that damage as soon as reasonably possible unless: (i) Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the full replacement cost of the Building (“Replacement Cost”) and the damage is not covered by Landlord’s fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to carry that insurance); or (ii) Landlord reasonably determines that the cost of repair would exceed twenty-five percent (25%) of the Replacement Cost; or (iii) Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice.
(b) As soon as reasonably practicable following the casualty event but not later than sixty (60) days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds two hundred seventy (270) days and if the Building damage is damagedso extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises, then Tenant may elect to terminate this Lease by written notice to Landlord shallwithin ten (10) days following delivery of the Casually Notice.
(c) To the extent and for the period that Landlord is entitled to reimbursement from the proceeds of rental interruption insurance carried by Landlord as part of Operating Expenses, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, the cost of any repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or termination rights, if the damage is due to the fault or neglect of Tenant or its employees, subtenants, contractors, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord to repair any improvements, fixtures and other items that Tenant is obligated to repair or insure pursuant to Article VII, Exhibit D, or any other provision of this Lease; provided, however, that if and to the extent of the Landlord receives insurance proceeds received therefor (includingfor damage to interior leasehold improvements, without limitationas reasonably determined by Landlord after first applying any proceeds to damage in areas other than tenant suites, that then Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”)shall, subject to the provisions rights of any Mortgage mortgagee or Superior Leaseground lessor, but Landlord shall have no obligation to make those excess proceeds available for repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseaffected leasehold improvements.
Appears in 1 contract
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant’s Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter, so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord’s Notice to Tenant as described in Section 11.1(a). Notwithstanding the foregoing, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2.
(d) Commencing on the date of such material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as determined by Landlord, provided that Tenant is then carrying the business interruption insurance proceeds received therefor required of Tenant pursuant to Exhibit D.
(including, without limitation, that e) Landlord shall only not be responsible required to repair the Skylight or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and Tenant shall continue to be obligated to so repair or replace any such improvements or fixtures, notwithstanding any provisions to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged)contrary in this Article XI. In addition, be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), but subject to the provisions of any Mortgage Section 10.5, in the event the damage or Superior Leasedestruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, but subtenants, invitees or representatives, the costs of such repairs or replacement to the Premises or Building shall be borne by Tenant, and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the provisions of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord shall have no obligation to repair or restore (i) in removing Tenant’s Property, (ii) personal property and any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
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Restoration. If during the Lease Term the Premises are damaged by fire or other casualty, or if the Building is damagedare totally or partially damaged or destroyed from any cause, thereby rendering the Premises totally or partially inaccessible or unusable, Landlord shall, shall diligently (taking into account the time necessary to the extent of the effectuate a satisfactory settlement with any insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to company involved) restore and repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight Premises and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the same condition it existed they were in prior to such event damage; provided, however, if the repairs and restoration cannot be completed within ninety (collectively90) days after the occurrence of such damage (taking into account the time needed for removal of debris, the “Casualty Work”preparation of plans and issuance of all required governmental permits), Landlord shall have the right, at its sole option, (i) to terminate this Lease by giving written notice of termination to Tenant within sixty (60) days after the occurrence of such damage; or (ii) to relocate Tenant to comparable space in the Building whereupon this Lease shall continue in full force and effect except that such space shall be deemed to be the Premises for all purposes of this Lease subject to the provisions requirements of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises WorkSection 23.2(ii), or (iii) any Alterations or improvements to restore and repair the Premises; Tenant shall have the right, at its sole option, to terminate this Lease by giving written notice of termination to Landlord within ninety (90) days after the occurrence of such damage. If this Lease is terminated pursuant to the Premises. Until preceding sentence, all rent payable hereunder shall be apportioned and paid to the date which of the occurrence of such damage. If this Lease is not terminated as a result of damage, and provided that such damage was not caused by the earlier intentional act or negligence of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the PremisesTenant, or (2) any of its employees, agents, licensees, subtenants, customers, clients, family members or guests, until the date on which repair and restoration of the Premises is completed Tenant occupies the portion shall be required to pay Base Rent and additional rent only for that part of the Premises that has been damaged for Tenant is able to use while repairs are being made, based on the normal conduct ratio that the amount of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that usable rentable area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total rentable area in the Premises. Landlord shall bear the costs and expenses of repairing and restoring the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and except that if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of such damage or destruction was caused by the act or omission of Tenant, or any of its employees, agents, licensees, subtenants, customers, clients, family members or guests, upon written demand from Landlord, Tenant shall pay to Landlord the Premises or amount by which such costs and expenses exceed the Building insurance proceeds, if any, received by fire or other casualty, and which shall supersede any Requirement providing for Landlord on account of such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casedestruction.
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Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shall, shall repair that damage as soon as reasonably possible at its expense unless: (i) the damage is not covered by Landlord's fire and extended coverage insurance; or (ii) Landlord reasonably determines that the cost of repair would exceed twenty-five percent (25%) of the full replacement cost of the Building (the “Replacement Cost”); (iii) the damage occurs during the final twelve (12) months of the Term; (iv) the holder of any mortgage on the Building or ground lessor with respect to the extent of Building shall require that the insurance proceeds received therefor or any portion thereof be used to retire the mortgage debt, or shall terminate the ground lease, as the case may be; or (includingv) in Landlord's reasonable judgment, repairs cannot reasonably be completed within one hundred eighty (180) days after the date of discovery of the damage (when such repairs are made without limitation, that the payment of overtime or other premiums). Should Landlord shall only be responsible elect not to repair the Skylight damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs, and this Lease shall terminate as of the date said notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that if the damage is so extensive as to reasonably prevent Tenant's use and enjoyment of the Premises for more than twelve (12) months, then Tenant may elect to terminate this Lease by written notice to Landlord within ten (10) days following Landlord’s notice in subsection (a). In the event this Lease is terminated in accordance with the terms of Section 11.1 or Section 11.2, Tenant shall assign to Landlord (or to any party designated by Landlord) all insurance proceeds payable to Tenant under Tenant's insurance required under Article X of this Lease applicable to any improvements, alterations or additions.
(c) Commencing on the date of any damage to the extent Building and ending on the sooner of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and date the entire roof membrane surrounding such Skylight damage is substantially damaged), be responsible only to repair and restore repaired or the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelydate this Lease is terminated, the “Casualty Work”), subject rental to be paid under this Lease shall be abated in the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to same proportion that the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a) (b) and (c) of this Section, and Rent the cost of any repairs shall be reduced on a floor borne by floor basis in Tenant and Tenant shall not be entitled to rental abatement or termination rights if the same manner and if more than thirty (30%) percent damage is due to solely the fault or neglect of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, invitees or representatives. In addition, the Premises provisions of this Section shall not be deemed to be wholly unusable (and untenantable) and (ii) with respect require Landlord to the Tenant’s Roof Deck Arearepair any improvements, Rent shall be reduced by 10% if 33% (alterations, additions or more) of usable square footage of Tenant’s Roof Deck Area fixtures that Tenant is not usable (obligated to repair or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and insure pursuant to any other law provision of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
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Sources: Office Lease (Model N, Inc.)
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord's Notice). ThermoGenesis Holdings Inc. Lease
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.l(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered to Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Requested Improvements constructed pursuant to the Work Letter. Landlord's repair of material damage shall be at Landlord's sole cost and expense except for any insurance deductible (for which Tenant shall be responsible for Tenant's Share). Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of Landlord's repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord's Notice to Tenant as described in Section 11.1(a). Notwithstanding the provisions of this Article Xl, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2.
(d) Commencing on the date of such material damage to the Building, and ending on the sooner of the insurance proceeds received therefor (includingdate the damage is repaired or the date this Lease is terminated, without limitationthe rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, that Landlord shall as determined by Landlord, but only be responsible to repair the Skylight to the extent that Landlord is entitled to reimbursement from the proceeds of the business interruption insurance proceeds assigned and promptly paid required to Landlord be maintained by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), pursuant to Exhibit D.
(e) Landlord shall not be responsible only required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and restore Tenant shall continue to be obligated to so repair or replace any such improvements or fixtures, notwithstanding any provisions to the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycontrary in this Article XI. In addition, the “Casualty Work”), but subject to the provisions of any Mortgage Section 10.5, in the event the damage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements destruction to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (Premises or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access Building are due in substantial part to the Premisesfault or neglect of Tenant or its employees, subtenants, invitees or (2) representatives, the date on which Tenant occupies the portion costs of such repairs or replacement to the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent or Building shall be reduced borne by Tenant, and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the proportion by that area provisions of the part of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any debris from the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area facilitate all inspections of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such caseliability which Landlord may require. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.ThermoGenesis Holdings Inc. Lease
Appears in 1 contract
Restoration. If Subject to the provisions of Paragraphs 9.3, 9.4 and 9.5, if, during the Term, there is any Premises are damaged by fire Damage to any portion of the Improvements (but not Tenant's Trade Fixtures, Fixture Work or other casualtypersonal property, or if the Building is damaged, which shall be Tenant's obligation to repair at Tenant's sole cost and expense) then Landlord shall, at Landlord's expense subject to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedParagraph 9.3(a), be responsible only to promptly and diligently repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work Improvements so damaged to substantially the condition it existed of such Improvements in existence immediately prior to such damage as soon as reasonably possible and this Lease shall continue in full force and effect; provided, however, that Tenant shall, at Tenant's election, make the repair of any damage or destruction to the Improvements the total Restoration Cost of which is reasonably estimated by Tenant to be Ten Thousand Dollars ($10,000.00) or less, and, in such event following ten (collectively, 10) days prior written notice to Landlord (to the “Casualty Work”extent Landlord is required to pay for or perform such item under the Lease), subject Landlord shall reimburse Tenant for all Restoration Costs (not exceeding $10,000 per casualty event) incurred by Tenant with respect to such repair within thirty (30) days of Landlord's receipt of a reasonably detailed invoice therefor (accompanied by reasonable supporting documentation). Landlord shall be entitled to the provisions full proceeds of any Mortgage insurance coverage for the Improvements, whether carried by Landlord or Superior LeaseTenant, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements for damage to the Premises. Until Notwithstanding anything to the date which is contrary contained herein, in the earlier event (and to the extent) of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2i) the date on which Tenant occupies the portion occurrence of damage or destruction to the Premises that has been damaged for requires the normal conduct repair or restoration of business, any Alteration (i) with respect to the Premises, Rent shall be reduced in extent the proportion by that area of the part of the Premises which same is not usable (or accessible), and is not used by Tenant bears to the total area just a replacement of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantablean original Improvement) and (ii) with respect the cost of such repair or restoration is not covered by the insurance required to the Tenant’s Roof Deck Area, Rent shall be reduced carried by 10% if 33% Landlord (or more) otherwise carried by Landlord), Landlord shall not be required to undertake or bear the cost of usable square footage of Tenant’s Roof Deck Area is not usable (such repair or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caserestoration.
Appears in 1 contract
Sources: Industrial/Commercial Lease (Factory 2 U Stores Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that the full cost of repair (exclusive of any deductible up to seven and one-half percent of the loss amount) is not covered by Landlord's insurance that Landlord is required to maintain by this Lease which Landlord carries and includes as part of Operating Expenses, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for Tenant's Share as an Operating Expense); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within one (1) year after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred and remains uncured at the time of such contingency casualty; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("LANDLORD'S NOTICE") within thirty (30) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date of Landlord's Notice. Notwithstanding the foregoing, Landlord shall only have the right to terminate this Lease under (i) above if Landlord terminates the leases of all tenants in the absence Project similarly damaged by such casualty and such tenants have comparable rights and obligations in the event of an express agreementsuch casualty.
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice no uncured Event of Default exists under this Lease, then within fifteen (15) business days following delivery of Landlord's Notice pursuant to *** Confidential treatment has been requested for the redacted text of this document. The confidential redacted text has been omitted and filed separately with the Securities and Exchange Commission.
Section 11.1 (a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within twelve (12) months after the date of damage (the "MAXIMUM PERIOD") or (ii) the casualty has occurred within the final twelve (12) months of the Term and Tenant is prevented from using the Premises for sixty (60) consecutive days due to such damage. If Tenant fails to provide such termination notice within such fifteen (15) business day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other law applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of like nature and purpose now or hereafter material damage to the Building resulting from a casualty, Landlord shall, except as provided in forcesubsection (e) below, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of repair all material damage or destruction of to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law Term. Notwithstanding the foregoing, the repair of damage to the State of New York, which provides for Premises to the extent such contingency in the absence of an express agreement, damage is not material shall be governed by Sections 7.1 and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case7.
Appears in 1 contract
Sources: Lease Agreement (Broadcom Corp)
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant’s Share, provided that in no event shall Tenant’s Share of a deductible be greater than Fifty Thousand Dollars ($50,000) for any single casualty [the “Deductible Cap” herein]); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate thirty (30) days following the date of delivery of Landlord’s Notice.
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered to Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within thirty (30) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such thirty (30) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall diligently repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord’s repair of material damage shall be at Landlord’s sole cost and expense except for any insurance deductible (for which Tenant shall be responsible for Tenant’s Share not to exceed, however, the Deductible Cap). Landlord shall have the right, but not the obligation, to the extent repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of the Landlord’s repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds received therefor (including, without limitation, that from insurance required to be maintained by Tenant. If Landlord shall only be responsible elects to repair the Skylight to the extent of the or replace such leasehold improvements and/or Alterations, all insurance proceeds assigned and promptly paid available for such repair or replacement shall be made available to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord. Landlord shall have no obligation liability to repair Tenant in the event that the Premises or restore (i) Tenant’s Property, (ii) any other portion of the Building has not been fully repaired within the time period specified by Landlord in Landlord’s Premises WorkNotice to Tenant as described in Section 11.1(a). Notwithstanding anything to the contrary contained in this Section 11.1(c), if for any reasons other than delays caused by Tenant, or other matters beyond Landlord’s reasonable control, the Premises and/or the Building have not been substantially repaired within thirty (iii30) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed time period specified in Landlord’s Notice to Tenant as described in Section 11.1(a), then Tenant may, by written notice to Landlord given at any time thereafter but for Tenant Delay) and Tenant has reasonable access prior to the Premises, or (2) the actual date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area substantial completion of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction repair of the Premises or the Building by fire Building, elect to terminate this Lease effective thirty (30) days from and after the date of such notice; provided that if Landlord shall substantially complete such repairs on or before the effective date of such termination, then Tenant’s election to terminate this Lease shall thereupon be cancelled and of no further force or effect. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in Landlord’s Notice (for reasons other casualtythan Tenant-caused delays and/or force majeure delays), then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, and which Tenant must elect within five (5) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease, provided such repairs are substantially completed within thirty (30) days following the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such five (5) day period shall supersede any Requirement providing for be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice.
(d) Commencing on the date of such contingency material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the absence same proportion that the Floor Area of an express agreementthe Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, and any other law as determined by Landlord, but only to the extent that Landlord is entitled to reimbursement from the proceeds of like nature and purpose now or hereafter the business interruption insurance required to be maintained by Tenant pursuant to Exhibit D.
(e) Subject to the provisions of Section 10.5, in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of the event the damage or destruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives, the costs of such repairs or replacement to the Premises or Building shall be borne by Tenant, and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the provisions of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord in removing Tenant’s personal property and any debris from the Premises to facilitate all inspections of the Premises and the making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the Building or Premises following any damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building by fire or other casualtythe Premises solely in order to allow Tenant to retrieve files, data in computers, and Section 227 necessary inventory, subject however to all indemnities and waivers of the Real Property Law of the State of New York, which provides for such contingency liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such caseliability which Landlord may require.
Appears in 1 contract
Sources: Lease (Sonics, Inc.)
Restoration. If the Premises are Building shall be partially or totally damaged or destroyed by fire or other casualty, then, unless this Lease is terminated as hereinafter provided, and whether or if not the Building is damageddamage or destruction shall have resulted from the fault or neglect of Tenant or its employees, Landlord shallagents, to contractors or invitees, Landlord, at its sole expense, shall perform Landlord's Restoration Work (as hereinafter defined) with reasonable dispatch and continuity. For purposes hereof, the extent term "Landlord's Restoration Work" shall mean all of the insurance proceeds received therefor work necessary to repair and restore the Premises (including, without limitation, all the building systems) to substantially the same condition as that Landlord shall only be responsible to repair the Skylight in which they were in immediately prior to the extent happening of the fire or other casualty (it being agreed that Landlord's Restoration Work shall not include the repair and restoration of (w) any Tenant-Made Alterations, (x) Tenant's Initial Work installed by Tenant, (y) any Tenant's Trade Fixtures, and/or (z) any Tenant's Property). Notwithstanding anything to the contrary in this Paragraph 15, in the event a fire or other casualty to the Premises occurs that is covered by the all risk insurance referenced in Paragraph 9(a) above, Tenant shall, within 30 days after demand therefor, pay to Landlord the lesser of (i) the amount of any deductible in respect of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior adjustment relating to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage fire or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, other casualty and (ii) $25,000 (it being agreed that, in any other portion event, the payment of such amount by Tenant is not a condition precedent to any of Landlord’s 's obligations under this Paragraph 15). If the Premises Workshall be partially damaged or destroyed or rendered untenantable or inaccessible as a result of a fire or other casualty, or then the Base Rent, the Additional Rental Amount and all other rent payable under this Lease (iiiincluding any amounts payable under Sections 6 and 8 above) any Alterations or improvements shall be abated in proportion to the Premises. Until area of the Premises that has been rendered untenantable, inaccessible or unfit for Tenant's use and occupancy for the period from the date which is of such damage or destruction until the earlier of (1a) 120 days following the last day of a reasonable period (beginning on the date on which the Casualty Landlord's Restoration Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) substantially completed and Tenant has reasonable access to the Premises) for Tenant to repair and restore any Tenant's Initial Work, Tenant-Made Alterations, Tenant Trade Fixtures and Tenant's Property damaged as a result of such fire or other casualty and (2b) the date on which Tenant occupies the portion of reoccupies the Premises that has been damaged (or such portion thereof) for the normal conduct of business, its business (i) with respect as opposed to the Premisesrepair or restoration of any of Tenant's Initial Work, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (Tenant's Trade Fixtures, Tenant-Made Alterations or accessibleTenant's Property), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of . If the Premises shall be totally damaged or destroyed or rendered untenantable or inaccessible, then the Premises Base Rent, the Additional Rental Amount and all other rent payable under this Lease (including any amounts payable under Sections 6 and 8 above) shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to ▇▇▇▇▇ from the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) date of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction until the earlier of (a) the last day of a reasonable period (beginning on the date on which Landlord's Restoration Work is substantially completed and Tenant has reasonable access to the Premises) for Tenant to repair and restore any Tenant's Initial Work, Tenant-Made Alterations, Tenant Fixtures and Tenant's Property damaged as a result of such fire or other casualty and (b) the date on which Tenant reoccupies the Premises (or such portion thereof) for the normal conduct of its business (as opposed to the repair or restoration of any of Tenant's Initial Work, Tenant's Trade Fixtures, Tenant-Made Alterations or Tenant's Property). If the Building or any portion thereof shall be damaged or destroyed by fire or other casualty, and which shall supersede any Requirement providing for such contingency in then Landlord, within thirty (30) days after the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction occurrence of the Premises or the Building by fire or other casualty, shall furnish to Tenant an estimate (the "Estimate"), prepared and Section 227 certified by an architect selected by Landlord and reasonably acceptable to Tenant, of the Real Property Law date (the "Estimated Date") by which Landlord expects (in good faith) the Landlord's Restoration Work to be completed. If the Estimated Date shall be a date later than one hundred eighty (180) days after the date of the State fire or other casualty, then Tenant may, at its option, terminate this Lease by giving written notice to Landlord within thirty (30) days after Tenant's receipt of New Yorkthe Estimate. In any case where the Estimate does not give rise to Tenant's termination right as aforesaid (as well as any case where Tenant does not elect to exercise its termination right as aforesaid), which provides Tenant shall have the right to terminate this Lease, if for such contingency any reason, Landlord's Restoration Work is not completed by the Outside Restoration Date (as defined below). Tenant may exercise the termination right described in the absence preceding sentence by delivering written notice thereof to Landlord at any time following the Outside Restoration Date and prior to the date Landlord completes Landlord's Restoration Work. If Tenant terminates this Lease as provided in this Paragraph 15, then such termination shall be effective on the date specified in Tenant's notice of an express agreementtermination but no later than one hundred eighty (180) days after the date of such notice as if said date were the date fixed for the expiration of the Lease Term. Any Base Rent, Additional Rental Amount or other amounts paid by Tenant for a period beyond the date of termination of this Lease or for any period of abatement shall promptly be refunded by Landlord to Tenant. For purposes of this Lease, the term "Outside Restoration Date", with respect to any fire or other casualty, shall mean the Estimated Date for the Landlord's Restoration Work in connection with such fire or other casualty; provided, however, that the Outside Restoration Date shall be postponed by one day for each day that Landlord is actually delayed in completing such Landlord's Restoration Work as a result of one or more Force Majeure Events (but in no event shall the Outside Restoration Date be extended by Force Majeure Events by more than 60 days) or any delays caused by Tenant, its agents, employees, consultants, contractors and invitees. If (i) the Building shall be damaged or destroyed by fire or other casualty during the last 12 months of the then current Lease Term, (ii) the Estimate indicates that Landlord's Restoration Work will require a period of time which exceeds 20% of the then remaining Lease Term, and (iii) Tenant, on or prior to the date of the fire or other casualty shall not have elected to extend the then current Lease Term in accordance with the provisions of Addendum 3 hereto (assuming Tenant had the right to do so), then and in such events, either Landlord or Tenant shall have the right, to be exercised by written notice to the other party given within thirty (30) days the electing party's receipt of the Estimate, to terminate this Lease. If either party terminates this Lease as provided in this Paragraph 15, then such termination shall be effective on the date specified in such party's notice of termination but no later than one hundred eighty (180) days after the date of such notice as if said date were the date fixed for the expiration of the Lease Term; and any Base Rent, Additional Rental Amount or other law amounts paid by Tenant for a period beyond the date of like nature and purpose now such termination of this Lease or hereafter for any period of abatement shall promptly be refunded by Landlord to Tenant. Notwithstanding anything to the contrary contained in forceParagraph 15 above, if Tenant, within thirty (30) days after its receipt of a termination notice from Landlord given pursuant to Paragraph 15 above, shall have no application elect to extend the then current term of this Lease in any accordance with the provisions of Addendum 3 hereto (assuming Tenant has the right to do so), then Landlord's termination notice shall be rendered null and void, this Lease shall remain in full force and effect, and Landlord, at its sole expense, shall perform Landlord's Restoration Work. If the named Landlord herein (i.e., ProLogis Development Services Incorporated) shall transfer its interest in the Premises to a third party, then, from and after the effective date of such case.transfer, the following provision of this Section 15(f) shall apply:
Appears in 1 contract
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant’s Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered to Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord’s repair of material damage shall be at Landlord’s sole cost and expense except for any insurance deductible (for which Tenant shall be responsible for Tenant’s Share). Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of Landlord’s repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord’s Notice to Tenant as described in Section 11.1(a). Notwithstanding the provisions of this Article XI, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2.
(d) Commencing on the date of such material damage to the Building, and ending on the sooner of the insurance proceeds received therefor (includingdate the damage is repaired or the date this Lease is terminated, without limitationthe rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, that Landlord shall as determined by Landlord, but only be responsible to repair the Skylight to the extent that Landlord is entitled to reimbursement from the proceeds of the business interruption insurance proceeds assigned and promptly paid required to Landlord be maintained by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), pursuant to Exhibit D.
(e) Landlord shall not be responsible only required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and restore Tenant shall continue to be obligated to so repair or replace any such improvements or fixtures, notwithstanding any provisions to the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycontrary in this Article XI. In addition, the “Casualty Work”), but subject to the provisions of any Mortgage Section 10.5, in the event the damage or Superior Leasedestruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, but subtenants, invitees or representatives, the costs of such repairs or replacement to the Premises or Building shall be borne by Tenant, and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the provisions of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord shall have no obligation to repair or restore (i) in removing Tenant’s Property, (ii) personal property and any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Lease Agreement (Illumina Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its sole and absolute option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant’s Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred and is continuing; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists and is continuing nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within thirty (30) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such thirty (30) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (AutoTrader Group, Inc.)
Restoration. (a) If the Premises any Buildings are damaged by fire or other as the result of an event of casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor shall repair that damage (including, at Landlord’s sole cost and expense and without limitationseeking reimbursement from Tenant; provided however, that Landlord shall only be responsible may elect to repair terminate the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore Lease if: (i) TenantLandlord reasonably determines that the cost of repair would exceed ten percent (10%) of the full replacement cost of all of the Buildings (“Replacement Cost”) and the damage is not covered by Landlord’s Property, fire and extended coverage insurance (or by a normal extended coverage policy should Landlord fail to carry that insurance); or (ii) any other portion Landlord reasonably determines that the cost of Landlord’s Premises Work, repair would exceed twenty-five percent (25%) of the Replacement Cost; or (iii) any Alterations Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Term (unless Tenant has exercised, or improvements exercises within ten (10) business days after receipt of a Casualty Notice (as defined herein), its right to extend the PremisesTerm). Until Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date which of delivery of that notice. Notwithstanding the foregoing, if Tenant commits to pay the cost repair in excess of available insurance proceeds, by giving notice to Landlord within ten (10) business days after receipt of the Casualty Notice, then this Lease shall not terminate but shall continue in full force and effect, subject to Section 11.1(c) and Section 11.1(d).
(b) As soon as reasonably practicable following Landlord receiving knowledge of the casualty event, but not later than thirty (30) days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the earlier of Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds two hundred forty (1240) 120 days following the date on which casualty event (the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay“Maximum Period”) and Tenant has reasonable access if the damage is so extensive as to substantially interfere with Tenant’s use and enjoyment of the Premises, or then Tenant may elect to terminate this Lease by written notice to Landlord within ten (210) business days following delivery of the Casualty Notice. Upon termination, Basic Rent shall be apportioned as of the date on which of the damage and, provided Tenant occupies is not in default, all prepaid Basic Rent shall be repaid to Tenant.
(c) From and after the portion date of the casualty event, the Basic Rent to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a), and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantableb) and (iic) with respect to of this Section 11.1, the Tenant’s Roof Deck Area, Rent cost of any repairs shall be reduced borne by 10% if 33% (Tenant, and Tenant shall not be entitled to rental abatement or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided termination rights, if the Premises and damage is caused by the Tenant’s Roof Deck Area are both not usable (negligence or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case willful misconduct of damage Tenant or destruction of the Premises its employees, subtenants, invitees or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caserepresentatives.
Appears in 1 contract
Sources: Lease (Leo Holdings III Corp.)
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shallshall repair that damage as soon as reasonably possible at its expense unless: (i) the damage is not covered by Landlord’s fire and extended coverage insurance (or by a normal extended coverage policy, should Landlord fail to carry that insurance); or (ii) Landlord reasonably determines that the extent cost of repair would exceed twenty-five percent (25%) of the insurance proceeds received therefor full replacement cost of the Building (including, without limitation, Replacement Cost); or (iii) Landlord reasonably determines that the cost of repair would exceed ten percent (10%) of the Replacement Cost and the damage occurs during the final twelve (12) months of the Lease Term. Should Landlord shall only be responsible elect not to repair the Skylight damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty- (60) days after the damage occurs, and this Lease shall be deemed terminated as of: (a) if Tenant has continued its use and occupancy, and is using and occupying the Premises as of the date of such notice from Landlord, the thirtieth (30th) day following such notice, or (b) if Tenant continued to use and occupy the Premises after the casualty but ceased such use and occupancy prior to the extent date of such notice by Landlord, the date on which Tenant ceased its use and occupancy of the insurance proceeds assigned Premises, or (c) if Tenant ceased its occupancy and promptly paid use of the Premises on or before the date of the casualty, the date of the casualty.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Lease Term; provided that if the damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises for more than nine (9) months, then Tenant may elect to terminate this Lease by written notice to Landlord by Tenant and only if such Skylight and within the entire roof membrane surrounding such Skylight is substantially damagedsixty- (60)-day period stated in subsection (a), be responsible only .
(c) Commencing on the date of any damage to repair and restore the Building (including and ending on the Common Areas) Base Building Work and sooner of the Base Building Roof Work to substantially date the condition it existed prior to such event (collectivelydamage is repaired or the date this Lease is terminated, the “Casualty Work”)Monthly Rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises.
(d) Notwithstanding the provisions of subsections (a) (b) and (c) of this Section, but subject to the provisions of subsection (e) below, the cost of any Mortgage repairs shall be borne by Tenant and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights if the damage is due to the fault or neglect of Tenant or its employees, but subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Notwithstanding any Alterations or improvements provision herein to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) contrary, Landlord and Tenant has reasonable access each hereby waives any and all rights of recovery, claim, action or cause of action, against the other, its agents, officers, employees, partners, servants or shareholders for any insured loss or damage that may occur to the Leased Premises, or (2) any improvements thereto or said Building of which the date on which Tenant occupies Leased Premises are a part, or any improvements thereto, or any personal property of such party therein, by reason of fire, the portion of the Premises that has been damaged for the normal conduct of businesselements, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises or any other cause which is not usable (insured against under the terms of standard commercial casualty risk property insurance policy maintained by Landlord or accessible)Tenant, REGARDLESS OF CAUSE OR ORIGIN, INCLUDING NEGLIGENCE OF THE OTHER PARTY HERETO, ITS AGENTS, OFFICERS, EMPLOYEES, PARTNERS, SERVANTS OR SHAREHOLDERS and is not used by Tenant bears each party shall cause such insurance policies to the total area contain provisions or endorsements wherein each insurer waives its rights of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for recovery against such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseparties.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are damaged by fire or other casualty, or if the Building a part is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term. Should Landlord elect not to repair the damage for one of the preceeding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Premises that is rendered unusable by the damage from time to time bears to the total floor area of the Premises, but only to the extent of the that any business interruption insurance proceeds are received by Landlord therefor from Tenant's insurance described in Exhibit D.
(including, without limitation, that Landlord shall only be responsible to repair d) Notwithstanding the Skylight to the extent provisions of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damagedsubsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperated with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Industrial Lease (Sionix Corp /Ut/)
Restoration. If In the Premises are damaged event that Tenant does not exercise its above set forth option to terminate this Lease in the event of damage by fire or other casualty, then Landlord shall repair or restore such damage, this Lease continuing in full force and effect, with the Base Rent hereunder to be equitably abated as herein above provided. In the event that (a) Landlord notifies Tenant that the Premises can be materially restored within ninety (90) days from the date of damage by fire or other casualty pursuant to Section 10.2 and Landlord fails to materially restore the Premises within such ninety (90) day period, or (b) if Landlord's notice provides that the Premises cannot be, restored within ninety (90) days, Tenant does not elect to terminate the Lease as provided in Section 10.2, and Landlord fails to materially restore the Premises within a ninety (90) day period, then Tenant as its sole and exclusive remedy shall be entitled to terminate this Lease by giving Landlord notice of such termination within ten (10) days after the expiration of such period and this Lease shall terminate as of the date of such damage as if such date had been originally fixed in this Lease for the expiration of the Term; provided, however, that if Landlord shall be delayed in, hindered in, or prevented from, completing the restoration within said period by reason of Force Majeure (defined in Section 12.20), or if the Building is damageddelay shall be due to delay in receipt of custom ordered items, Landlord shall, to then the extent time for completion of the insurance proceeds received therefor (including, without limitation, that Landlord restoration shall only be responsible to repair extended for the Skylight to the extent period of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building delay (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such but in no event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0days). This Article 11 constitutes an express agreement governing Landlord shall not be required to repair any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency casualty to improvements installed in the absence Premises by Tenant or to any of an express agreementTenant's personal property or equipment; and if Landlord shall restore the Premises, Tenant shall be required to repair and any other law of like nature restore such improvements at Tenant's cost and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseexpense.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, damaged such that Tenant is deprived of reasonable access to the extent Premises, Tenant shall give prompt notice to Landlord, and Landlord shall repair the core and shell of the insurance proceeds received therefor Premises and all Building Systems (including, without limitation, that Landlord shall only be responsible to repair or the Skylight damaged portion thereof) up to the extent point of connection to the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged)Premises, be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work at its expense, to substantially the condition it existed thereof prior to such event (collectively, the “Casualty Work”)damage, subject to the provisions of this Article 14, and of any Mortgage or Superior Lease, but . Landlord shall have no obligation to repair or restore (i) restore, and Tenant shall at its cost and expense, repair and replace Tenant’s 's Property, (ii) any other portion of Landlord’s Premises Work, or (iii) and any Alterations or improvements to the PremisesPremises (including the Initial Installations), to substantially the condition prior to the damage. Until So long as Tenant is not in default beyond applicable grace or notice provisions in the date which is payment or performance of its obligations under this Section 14.1, then until the earlier restoration of (1) 120 days following the date on which core and shell of the Casualty Work Premises is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) , Fixed Rent, Tenant's Tax Payment and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent Tenant's Operating Payment shall be abated or reduced in the proportion by that which the area of the part of the Premises which is not usable (or accessible), ) and is not used by Tenant bears to the total area of the Premises, and Rent . Nothing set forth in this Section 14.1 shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage interpreted to limit Landlord's right to repair or restore all or any portion of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (at such time and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualtysuch manner as Landlord deems appropriate in Landlord's sole judgment, and which no such repair or restoration shall supersede constitute a waiver by Landlord of any Requirement providing for such contingency of Landlord's rights set forth in the absence of an express agreement, and any other law of like nature and purpose now this Section 14.1 or hereafter elsewhere in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such casethis Lease.
Appears in 1 contract
Sources: Lease (Sports Club Co Inc)
Restoration. (a) If the Building of which the Premises are a part is damaged by fire or other as the result of an event of casualty, or if then subject to the Building is damagedprovisions below, Landlord shall, to shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the extent Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; (ii) any Mortgagee (defined in Section 13.1) requires that the insurance proceeds received therefor be applied to the payment of the mortgage debt; or (includingiii) proceeds necessary to pay the full cost of the repair (excluding deductibles) are not available from Landlord’s insurance, including without limitationlimitation earthquake insurance. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in the “Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to terminate this Lease. If this Lease is not so terminated, the Casualty Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 270 days and if the damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises, then either party may elect to terminate this Lease by written notice to the other within 10 days following delivery of the Casualty Notice; provided, however, that Landlord shall only be responsible not have the right to repair so terminate this Lease unless it also terminates the Skylight to leases of all other tenants similarly affected by the extent Casualty. In addition, if, during the last 6 months of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and term of the entire roof membrane surrounding such Skylight is substantially damaged)Lease or any extension thereof, be responsible only to repair and restore the Building twenty percent (including the Common Areas20%) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion more of the Premises that has been is damaged for the normal conduct of businessor destroyed, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction would take more than 60 days to repair, Tenant shall have the right to terminate the Lease as of the date of such damage or destruction by written notice to Landlord, given within ten (10) business days after Tenant’s receipt of the Casualty Notice.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to Section 11.1(b), Landlord shall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or to any party designated by fire or other casualtyLandlord) all property insurance proceeds payable to Tenant under Tenant’s insurance with respect to any Alterations. Within 15 days of demand, Tenant shall also pay Landlord for any additional excess costs that are determined during the performance of the repairs to such Alterations.
(d) From and which after the casualty event, the rental to be paid under this Lease shall supersede any Requirement providing for such contingency be abated in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction same proportion that the Floor Area of the Premises or that is rendered unusable by the Building by fire or other casualty, and Section 227 damage from time to time bears to the total Floor Area of the Real Property Law Premises.
(e) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section 11.1, but subject to Section 10.4, Tenant shall not be entitled to rental abatement or termination rights, if the State damage is due to the gross negligence or willful misconduct of New YorkTenant or its employees, which provides for such contingency in the absence of an express agreementsubtenants, and any other law of like nature and purpose now contractors, invitees or hereafter in force, shall have no application in any such caserepresentatives.
Appears in 1 contract
Sources: Lease (AutoWeb, Inc.)
Restoration. (a) If at any time during the Lease Term the Premises are damaged by a fire or other casualty, or Landlord shall notify Tenant within [***] ([***]) days after such damage as to the amount of time Landlord reasonably estimates it will take to restore the Premises ("Completion Estimate"). If the restoration time is estimated to exceed [***] ([***]) months following the date Landlord learns of the damage, then, Tenant may elect to terminate this Lease, and if the Building restoration time is damagedestimated to exceed [***] ([***]) months following the date Landlord learns of the damage, then, Landlord shallmay elect to terminate this Lease, in each case upon notice to the extent other party given no later than [***] ([***]) days after the date of delivery of the Completion Estimate. If neither party elects to terminate this Lease then Landlord shall promptly restore the Premises (excluding any Tenant Improvements and/or Tenant-Made Alterations) provided, if the Premises are destroyed or substantially damaged by any peril not covered by the insurance proceeds received therefor required to be maintained by Landlord hereunder, and such damage was not caused by Landlord's gross negligence or willful misconduct, Landlord may elect to terminate this Lease by written notice to Tenant, provided, further, however, Tenant may elect to override Landlord's election by giving notice of such election (including"Tenant's Override Notice") and paying any amounts necessary to restore the Premises not covered by the insurance maintained (or required to be maintained) by Landlord hereunder within [***] ([***]) Business Days after Tenant's receipt of Landlord's termination notice to Landlord, without limitationwhereupon Landlord's termination notice shall be of no force or effect, and Landlord's restoration obligations shall again apply. If Tenant fails timely to deliver Tenant's Override Notice or timely to pay the shortfall, then Tenant shall have no further rights under this section and the Lease will terminate as set forth above. For purposes of this Paragraph 15, an uninsured casualty does not include a hazard or peril that Landlord shall only be responsible is required to insure against hereunder, but for which the cost to repair the Skylight to damage and undertake the extent of restoration work is less than the deductible on Landlord's insurance proceeds assigned and promptly paid to Landlord policy(ies). If Landlord’s restoration work exceeds the anticipated completion date set forth in the Completion Estimate by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building more than [***] (including the Common Areas[***]) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”)days, subject to Force Majeure and delays caused by Tenant, then Tenant shall again have the provisions right to terminate the Lease by written notice to Landlord provided, however, if Landlord substantially completes the restoration in said [***] ([***]) day notice period, Tenant's notice of any Mortgage or Superior Leasetermination shall be null and void and this Lease shall continue in full force and effect. In addition, but Tenant may terminate this Lease if the Premises are damaged during the last [***] ([***]) months of the Lease Term and Landlord shall have no obligation reasonably estimates that it will take more than [***] ([***]) [***] following the date that Landlord learns of the damage to repair or restore such damage. Base Rent and Tenant's Proportionate Share of Operating Expenses shall be abated for (i) Tenant’s Property, (ii) any other portion the period of Landlord’s Premises Work, or (iii) any Alterations or improvements to repair and restoration by Landlord in the Premises. Until the date which is the earlier of (1) 120 days following the date on proportion which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to area of the Premises, or (2) if any, that is rendered unusable for the date on which Tenant occupies the portion reasonable conduct of Tenant's business because of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (casualty or accessible), and is not used by Tenant related restoration work bears to the total area of the Premises, and Rent (ii) for such additional period reasonably required for Tenant's restoration of Tenant Improvements and/or Tenant-Made Alterations or equipment installed by Tenant but only to the extent that Landlord has rent loss insurance proceeds with respect to such additional period. If Tenant or Landlord terminates the Lease pursuant to the terms of this Paragraph 15, then notwithstanding anything to the contrary in this Lease, (i) Tenant shall have no restoration obligations, (ii) Landlord shall return the Letter of Credit to Tenant within [***] ([***]) days after Lease termination, (iii) Tenant shall be reduced on entitled to retain all insurance proceeds of any type, and in any amount, payable pursuant to Tenant’s insurance policies, and neither Landlord nor Landlord’s lender shall have any claim or right to said proceeds, and (iv) Landlord shall be entitled to retain all insurance proceeds of any type, and in any amount, payable pursuant to Landlord’s insurance policies, and Tenant shall have no claim or right to said proceeds. Notwithstanding the foregoing, if all or any portion of Premises are wholly or partially damaged or destroyed as a floor by floor basis in the same manner and if more than thirty (30%) percent result of the usable square footage willful misconduct of Tenant or any Tenant Party, then Tenant shall (i) not be entitled to terminate this Lease (notwithstanding the Premises shall be inaccessibleprovisions of subparagraph (a) above), the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect pay to Landlord the full amount of the deductible under Landlord's insurance policy (which deductible shall be commercially reasonable, based on the deductibles of other institutional owners of commercial properties similar to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if Premises in the market in which the Premises is located), and this Lease shall continue in full force and effect without any abatement or reduction in Base Rent or Operating Expenses or other payments owed by Tenant. The provisions of this Paragraph 15 shall constitute Tenant's sole and exclusive remedy in the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction to the Premises or Project, and Tenant waives and releases all statutory rights and remedies in favor of Tenant in the event of damage or destruction, including without limitation those available under California Civil Code Sections 1932 and 1933(4). No damages, compensation or claim shall be payable by Landlord for any inconvenience, any interruption or cessation of Tenant's business, or any annoyance, arising from any damage or destruction of all or any portion of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseProject.
Appears in 1 contract
Restoration. (a) If the Building of which the Premises are a part, or the parking areas for the Building, are damaged by fire or other as the result of an event of casualty, or if then subject to the Building is damagedprovisions below, Landlord shall, to shall repair that damage as soon as reasonably possible unless Landlord reasonably determines that: (i) the extent Premises have been materially damaged and there is less than 1 year of the Term remaining on the date of the casualty; (ii) any Mortgagee (defined in Section 13.1) requires that the insurance proceeds received therefor be applied to the payment of the mortgage debt; or (includingiii) proceeds necessary to pay the full cost of the repair are not available from Landlord’s insurance, including without limitation, that limitation earthquake insurance. Should Landlord shall only be responsible elect not to repair the Skylight to the extent damage for one of the insurance proceeds assigned and promptly paid to preceding reasons, Landlord by shall so notify Tenant and only if such Skylight and in the entire roof membrane surrounding such Skylight is substantially damaged“Casualty Notice” (as defined below), and this Lease shall terminate as of the date of delivery of that notice. If Landlord has the right to terminate this Lease pursuant to this Section 11.1(a), Landlord agrees to exercise such right in a nondiscriminatory fashion among tenants in the Building. Consideration of the following factors in arriving at its decision shall not be responsible only deemed discriminatory: length of term remaining on the Lease, time needed to repair and restore, costs of repair and restoration not covered by insurance proceeds, Landlord's plans to repair and restore Common Areas serving the Building Premises, Landlord's plans for repair and restoration of the Building, and other factors (including other than the Common Areasrental rates payable under the leases in question) Base Building Work and relevant to Landlord's decision as long as they are applied to Tenant in the Base Building Roof Work same manner as other tenants.
(b) As soon as reasonably practicable following the casualty event but not later than 60 days thereafter, Landlord shall notify Tenant in writing (“Casualty Notice”) of Landlord’s election, if applicable, to substantially the condition it existed prior to such event (collectivelyterminate this Lease. If this Lease is not so terminated, the “Casualty Work”)Notice shall set forth the anticipated period for repairing the casualty damage. If the anticipated repair period exceeds 180 days and if the damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of the Premises, subject then either party may elect to terminate this Lease by written notice to the provisions other within 10 days following delivery of any Mortgage or Superior Leasethe Casualty Notice. In addition, but Landlord shall have no obligation to repair or restore if (i) Tenant’s Propertythe Premises have been materially damaged and there is less than 1 year of the Term remaining at the date of casualty, and (ii) any other portion the material damage is so extensive as to reasonably prevent Tenant’s substantial use and enjoyment of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 , then Tenant may elect to terminate this Lease by written notice to Landlord within 15 days following the date on which of the Casualty Work is Substantially Completed casualty.
(c) n as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Upon notice from Landlord, Tenant shall assign or endorse over to Landlord (or would have been Substantially Completed but to any party designated by Landlord) all property insurance proceeds payable to Tenant under Tenant's insurance with respect to any Tenant Installations; provided if the estimated cost to repair such Tenant Installations exceeds the amount of insurance proceeds received by Landlord from Tenant's insurance carrier, the excess cost of such repairs shall be paid by Tenant to Landlord prior to Landlord's commencement of repairs. Within 15 days of demand, Tenant shall also pay Landlord for any additional excess costs that are determined during the performance of the repairs to such Tenant DelayInstallations.
(d) From and Tenant has reasonable access after the 6th business day following the casualty event, the rental to be paid under this Lease shall be abated in the Premises, or (2) same proportion that the date on which Tenant occupies the portion Floor Area of the Premises that has been damaged for is rendered unusable by the normal conduct of business, (i) with respect damage from time to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant time bears to the total area Floor Area of the Premises. Notwithstanding the foregoing, if the Premises are partially destroyed and the remaining portion is not usable for Tenant's business purposes, the rental abatement described herein shall apply to the entire Premises.
(e) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section 11.1, but subject to Section 10.5, the cost of any repairs shall be borne by Tenant, and Rent Tenant shall not be reduced on a floor by floor basis in entitled to rental abatement or termination rights, if the same manner and if more than thirty (30%) percent damage is due to the willful misconduct of the usable square footage of the Premises shall be inaccessibleTenant or its employees, subtenants, contractors, invitees or representatives. In addition, the Premises provisions of this Section 11.1 shall not be deemed to be wholly unusable (require Landlord to repair any Tenant Installations, fixtures and untenantable) and (ii) with respect other items that Tenant is obligated to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (insure pursuant to Exhibit D or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and under any other law provision of like nature and purpose now or hereafter this Lease, except as expressly provided in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case11.1(c).
Appears in 1 contract
Sources: Lease Agreement (Lantronix Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that the full cost of repair (exclusive of any deductible up to seven and one-half percent of the loss amount) is not covered by Landlord’s insurance that Landlord is required to maintain by this Lease which Landlord carries and includes as part of Operating Expenses, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for Tenant’s Share as an Operating Expense); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within one (1) year after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred and remains uncured at the time of such contingency casualty; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within thirty (30) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date of Landlord’s Notice. Notwithstanding the foregoing, Landlord shall only have the right to terminate this Lease under (i) above if Landlord terminates the leases of all tenants in the absence Project similarly damaged by such casualty and such tenants have comparable rights and obligations in the event of an express agreementsuch casualty.
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice no uncured Event of Default exists under this Lease, then within fifteen (15) business days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within twelve (12) months after the date of damage (the “Maximum Period”) or (ii) the casualty has occurred within the final twelve (12) months of the Term and Tenant is prevented from using the Premises for sixty (60) consecutive days due to such damage. If Tenant fails to provide such termination notice within such fifteen (15) business day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other law applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of like nature and purpose now or hereafter material damage to the Building resulting from a casualty, Landlord shall, except as provided in forcesubsection (e) below, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of repair all material damage or destruction of to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Notwithstanding the foregoing, the repair of damage to the Premises to the extent such damage is not material shall be governed by fire Sections 7.1 and 7.2. Notwithstanding anything to the contrary contained in this Section 11.1(c), if the anticipated repair period set forth in Landlord’s Notice was less than the Maximum Period but Landlord subsequently determines that the actual repair period will exceed the Maximum Period, then Landlord shall so notify Tenant and Tenant may, within ten (10) business days thereafter, elect to terminate this Lease effective as of the date of Landlord’s notice; otherwise, the Maximum Period shall be deemed extended as set forth in the notice from Landlord. Should Landlord fail substantially to complete the restoration within the Maximum Period (as the same may be extended as aforesaid), then Tenant may elect to terminate this Lease by written notice to Landlord.
(d) From and after the sixth (6th) business day after such material damage to the Building (or other casualtysuch earlier date that Landlord is entitled to rent loss insurance proceeds), and Section 227 ending on the sooner of the Real Property Law date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the State Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of New Yorkthe Premises, which provides as reasonably determined by Landlord. However, in the event that Tenant is prevented from conducting, and does not conduct, its business in any portion of the Premises for a period of time in excess of the Eligibility Period, and the remaining portion of the Building is not sufficient to allow Tenant to effectively conduct its business therein, and if Tenant does not conduct its business from such remaining portion, then for such contingency time after expiration of the Eligibility Period during which Tenant is so prevented from effectively conducting its business therein, the rent for the entire Building shall be abated; provided, however, if Tenant reoccupies and conducts its business from any portion of the Building during such period, the rent allocable to such reoccupied portion, based on the proportion that the rentable area of such reoccupied portion of the Building bears to the total rentable area of the Building, shall be payable by Tenant from the date such business operations commence.
(e) Landlord shall not be required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease but Tenant’s Rent shall continue to a▇▇▇▇ until Tenant has been given sufficient time to repair such improvements, reinstall its furniture, fixtures and equipment and move back into the Premises.
(f) Tenant shall fully cooperate with Landlord in removing Tenant’s personal property and any debris from the absence Premises to facilitate all inspections of the Premises and the making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the Building or Premises following any damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an express agreementunlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Premises solely in order to allow Tenant to retrieve files, data in computers, and necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such caseliability which Landlord may require.
Appears in 1 contract
Sources: Lease (Broadcom Corp)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant’s Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (Ista Pharmaceuticals Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant's Share); (ii) Landlord reasonably determines that the absence Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Landlord shall have the State of New Yorkright, which provides for such contingency in but not the absence of an express agreementobligation, and to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Sources: Lease (Ydi Wireless Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shallshall repair that damage as soon as reasonably possible, at its expense, unless: (i) Landlord reasonably determines that the cost of repair is not covered by Landlord's "all-risk" fire and extended coverage insurance plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's proportionate share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an event of default by Tenant has occurred and is continuing at the time of such damage; or (iv) the damage occurs during the final twelve (12) months of the Term and repair of the same would cost in excess of thirty percent (30%) of the full replacement cost of the Building. Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in writing within sixty (60) days after the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term; provided that so long as Tenant is not in default under this Lease, if the damage is so extensive that Landlord reasonably determines that the Premises cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to allow Tenant's substantial use and enjoyment of the Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease by written notice to Landlord within the sixty (60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of the Building that is rendered unusable by the damage from time to time bears to the total floor area of the Building, but only to the extent of the that any business interruption insurance proceeds received therefor (including, without limitation, that Landlord shall only coverage required to be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord maintained by Tenant and only if such Skylight and in accordance with Exhibit D has been properly maintained in effect.
(d) Notwithstanding the entire roof membrane surrounding such Skylight is substantially damagedprovisions of subsections (a), be responsible only to repair (b) and restore the Building (including the Common Areasc) Base Building Work of this Section, and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of Section 10.5 above, the cost of any Mortgage repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or Superior Leasetermination rights, but if the damage is due to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives. In addition, the provisions of this Section shall not be deemed to require Landlord shall have no obligation to repair any improvements or fixtures that Tenant is obligated to repair or restore (i) Tenant’s Property, (ii) insure pursuant to any other portion provision of Landlord’s Premises Work, or this Lease.
(iiie) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines either (A) that the cost of repair would exceed ten percent (10%) of the replacement cost of the Building and the damage is not covered by Landlord's insurance or (B) that the cost of repair would exceed twenty-five percent (25%) of the Building's replacement cost; (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults and other similar dangers) within two hundred (200) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within thirty (30) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired (the "Designated Repair Period"). In the event Landlord elects to terminate this Lease, this Lease shall supersede any Requirement providing terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than thirty (30) days following the date of the damage, or, if no such contingency in date is specified, such termination shall be the absence date of an express agreementLandlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any other law failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of like nature and purpose now or hereafter in forceDefault, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case then within twenty (20) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred (200) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such twenty (20) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall, subject to Tenant's consent, have the right, but not the obligation, to repair or replace any other law of like nature and purpose now leasehold improvements made by Tenant or hereafter any Alterations (as defined in force, shall have no application in any such case.Section 7.3)
Appears in 1 contract
Restoration. (a) If the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord’s insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant’s Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred and is continuing; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord’s Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall be the date of Landlord’s Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building is damagedor Premises resulting from a casualty, Landlord shallshall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord’s repair of material damage shall be at Landlord’s sole cost and expense except for any insurance deductible (for which Tenant shall be responsible for Tenant’s Share). Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of Landlord’s repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord’s Notice to Tenant as described in Section 11.1(a). Notwithstanding the provisions of this Article XI, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2. Notwithstanding anything to the contrary contained in this Section 11.1( c), if for any reasons other than delays caused by Tenant, or other matters beyond Landlord’s reasonable control, the Premises and/or the Building have not been substantially repaired within the time period specified in Landlord’s Notice to Tenant as described in Section 11.1(a), then Tenant may, by written notice to Landlord given at any time thereafter but prior to the actual date of the insurance proceeds received therefor substantial completion of the repair of the Premises or the Building, elect to terminate this Lease. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in Landlord’s Notice (includingfor reasons other than Tenant-caused delays and/or force majeure delays) then Landlord may notify Tenant in writing of such determination and of a new outside date for completion of such repairs, without limitationand Tenant must elect within ten (10) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease provided such repairs are substantially completed prior to the new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such ten (10) day period shall be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice.
(d) Commencing on the date of such material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that Landlord shall the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as determined by Landlord, but only be responsible to repair the Skylight to the extent that Landlord is entitled to reimbursement from the proceeds of the business interruption insurance proceeds assigned and promptly paid required to Landlord be maintained by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), pursuant to Exhibit D.
(e) Landlord shall not be responsible only required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and restore Tenant shall continue to be obligated to so repair or replace any such improvements or fixtures, notwithstanding any provisions to the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelycontrary in this Article XI. In addition, the “Casualty Work”), but subject to the provisions of any Mortgage Section 10.5, in the event the damage or Superior Leasedestruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, but subtenants, invitees or representatives, the costs of such repairs or replacement to the Premises or Building shall be borne by Tenant, and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the provisions of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord shall have no obligation to repair or restore (i) in removing Tenant’s Property, (ii) personal property and any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of debris from the Premises that has been damaged for the normal conduct to facilitate all inspections of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or inaccessible) in no event shall damage to property from entry into the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing Building or Premises following any case of damage or destruction of thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Building by fire or other casualtyPremises solely in order to allow Tenant to retrieve files, data in computers, and which shall supersede any Requirement providing for such contingency necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in the absence of an express agreement, this Lease and any other law additional indemnities and waivers of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, liability which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such caseLandlord may require.
Appears in 1 contract
Sources: Lease (Biolase Technology Inc)
Restoration. (a) If the Premises are damaged by fire or other casualty, or if the Building is damaged, Landlord shall, to the extent of the insurance proceeds received therefor (including, without limitation, that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that has been damaged for the normal conduct of business, (i) with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building or a part thereof are materially damaged by fire any fire, flood, earthquake or other casualty, and Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall supersede any Requirement providing be responsible for such contingency in Tenant's Share subject to the absence limitations set forth hereinabove); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of an express agreementthe presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and any other law similar dangers) within two hundred seventy (270) days after the date of like nature the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and purpose now or hereafter (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in forceno event be later than sixty (60) days following the date of the damage, or, if no such date is specified, such termination shall have no application in any such case. This Article 11 constitutes be the date of Landlord's Notice).
(b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice an express agreement governing any case Event of Default does not exist hereunder, then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or destruction (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 1l.1(b) or any other applicable law.
(c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building by fire or other casualty, as soon as reasonably possible and Section 227 this Lease shall continue in effect for the remainder of the Real Property Law of Term. Subject to any provision to the State of New York, which provides for such contingency contrary in the absence Work Letter, such repair by Landlord shall include repair of an express agreementmaterial damage to the Tenant Improvements constructed pursuant to the Work Letter, and any other law of like nature and purpose now or hereafter in force, so long as insurance proceeds from insurance required to be carried by Tenant are made available to Landlord. Landlord shall have no application liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord's Notice to Tenant as described in Section 11.1(a). Notwithstanding the foregoing, the repair of damage to the Premises to the extent such damage is not material shall be governed by Sections 7.1 and 7.2.
(d) Commencing as of the sixth business day following such material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as determined by Landlord.
(e) Landlord shall not be required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and Tenant shall continue to be obligated to so repair or replace any such caseimprovements or fixtures, notwithstanding any provisions to the contrary in this Article XI. In addition, in the event the damage or destruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives, notwithstanding the provisions of Section 10.5, the costs of such repairs or replacement to the Premises or Building shall be borne by Tenant to the extent that insurance proceeds sufficient to complete such repair or replacement are not made available to Landlord and in addition, Tenant shall not be entitled to terminate this Lease as a result, notwithstanding the provisions of Section 11.1(b).
(f) Tenant shall fully cooperate with Landlord in removing Tenant's personal property and any debris from the Premises to facilitate all inspections of the Premises and the making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the Building or Premises following any damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Premises. Upon request, Landlord shall consult with Tenant to determine if there are safe methods of entry into the Building or the Premises solely in order to allow Tenant to retrieve files, data in computers, and necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in this Lease and any additional indemnities and waivers of liability which Landlord may require.
Appears in 1 contract
Sources: Lease (Endwave Corp)
Restoration. If In the event the Demised Premises are or the building of which the Demised Premises constitute a part shall be partially damaged or destroyed by fire or other casualty, or if the Building is damaged, Landlord shall, casualty to the extent that the cost of repairing or replacing the same will be equal to or less than twenty five percent (25%) of the insurance proceeds received therefor (includingthen replacement value thereof, without limitationor in the event Landlord does not elect to terminate this Lease as provided herein and provided the damage or destruction was not caused by the negligent acts or omissions of Tenant, that then Landlord shall only be responsible to repair the Skylight to the extent damage with reasonable dispatch after notice of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged)casualty; provided, be responsible only to repair and restore the Building (including the Common Areas) Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectivelyhowever, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall have no Landlord’s obligation to repair or restore (i) shall be limited to restoring the structural portions of the Demised Premises and shall not include repairs or the restoration of any of Tenant’s Propertyfixtures, improvements or other alterations made by Tenant in or upon the Demised Premises; provided, further, however, in the event such damage or destruction occurs during the last year of the term hereof, Landlord shall have the option to terminate this Lease upon written notice to Tenant given at any time before ninety (ii90) days after the issuance of the proof of loss by the insurance company insuring the building. In the event such repair or restoration cannot be completed within one hundred eighty (180) days from the date of such casualty subject to delays caused by governmental restrictions, strikes, lockouts, shortages of labor or material, acts of God, war or civil commotion, fire, unavoidable casualty, inclement weather or any other portion cause beyond the control of Landlord and provided the repair or restoration is not caused by the acts or omissions of Tenant and provided Tenant is not in default of this Lease, Tenant may by written notice to Landlord, terminate this Lease and its obligations hereunder. Notwithstanding anything provided herein to the contrary, Landlord’s Premises Work, obligation to repair or (iii) any Alterations or improvements rebuild shall be limited to the Premisesamount of the fire insurance proceeds received by Landlord (less any costs incurred by Landlord in collecting the same) in the event of any such casualty. Until In the date which is event the earlier of fire insurance proceeds received by Landlord (1less any costs incurred by Landlord in collecting the same) 120 days following are insufficient to rebuild the date on which Shopping Center and the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Demised Premises, or to their condition as they existed immediately prior to such casualty, then Landlord shall have the option to terminate the Lease upon notice to Tenant within ninety (290) the date on which Tenant occupies the portion days after Landlord’s receipt of the Premises that has been damaged for the normal conduct of business, (i) entire net insurance proceeds payable with respect to the Premises, Rent shall be reduced in the proportion by that area of the part of the Premises which is not usable (or accessible), and is not used by Tenant bears to the total area of the Premises, and Rent shall be reduced on a floor by floor basis in the same manner and if more than thirty (30%) percent of the usable square footage of the Premises shall be inaccessible, the Premises shall be deemed to be wholly unusable (and untenantable) and (ii) with respect to the Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is not usable (or accessible) provided if the Premises and the Tenant’s Roof Deck Area are both not usable (or inaccessible) in no event shall the Rent be reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by such fire or other casualty, and which shall supersede any Requirement providing for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the Premises or the Building by fire or other casualty, and Section 227 of the Real Property Law of the State of New York, which provides for such contingency in the absence of an express agreement, and any other law of like nature and purpose now or hereafter in force, shall have no application in any such case.
Appears in 1 contract
Sources: Shopping Center Lease Agreement