Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 2 contracts
Sources: Lease Agreement (Felcor Lodging Trust Inc), Lease Agreement (Bristol Hotels & Resorts Inc)
Partial Taking. If title to less than the whole of the Leased -------------- Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee Tenant or Lessor Landlord is entitled but neither elects to terminate this Lease as provided in Section 15.315.2, Lessee Tenant at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee Tenant and any other sums advanced by Lessor Landlord pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the condemnation Awards are not adequate to restore the Hotel Facility to that condition, each of Lessor Landlord and Lessee Tenant shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Landlord and Tenant, by giving Notice to the other; provided, however that, if such termination is by LesseeTenant, Lessor Landlord shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after LesseeTenant's Notice of termination, a Notice to Lessee Tenant of LessorLandlord's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the condemnation Awards. If this Lease is not terminated and Lessee Tenant restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor Landlord as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor Landlord and paid out by Lessor Landlord from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Landlord unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent Award shall be abated equitably apportioned between Landlord and Tenant in proportion to the manner then fair market values of the respective estates and interests of Landlord and Tenant in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 2 contracts
Sources: Lease Agreement (Hudson Hotels Trust), Lease Agreement (Hudson Hotels Trust)
Partial Taking. If title In case of a Taking other than a Total Taking (a "Partial Taking") during the Lease Term, Lessee shall give prompt notice thereof to less than the whole of the Leased Property is condemnedLessor, Indenture Trustee and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor Participants and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice following options: (1) to the other; providedextent the Taking relates to an Improvement, however that, if such termination is by Lessee, Lessor Lessee shall have the right, in at its sole discretioncost and expense, to nullify construct a replacement Improvement on the termination Site which has a Fair Market Value, expected residual value, condition, utility and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice remaining economic useful life at least equal to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess the Improvement which is the subject of the Awards. If this Lease is not terminated and Lessee restores Taking, (2) to replace the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall Leased Property within ONE HUNDRED EIGHTY (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30180) days after such partial notice in accordance with Section 5.2 or (3) to terminate this Lease with respect to that part of the Leased Property subject to the Partial Taking on the date title thereto vests in the condemning authority responsible for the Taking, provided that if the matter may option referred to in clause (3) is elected, at its cost, Lessee shall restore so much of the Leased Property as remains to good condition and repair, in compliance with Applicable Law. In each case, Lessee shall continue to remain liable for the performance in full of all of its obligations under this Lease, including, without limitation, the obligation to pay in full Rent, Stipulated Loss Value, and all other amounts due and owing under this Lease without any reduction, abatement or limitation. The option referred to in clause (1) must be submitted elected prior to the date that title vests in the condemning authority responsible for the Taking, and shall be accompanied by either party an Officer's Certificate of Lessee with respect to arbitration the cost of construction of the replacement Improvement and the estimated time for completion thereof. Any condemnation proceeds attributable to the portion of the Leased Property subject to the Partial Taking shall be paid to Lessee for application to all expenses of Lessor, Lessee, the Participants and Indenture Trustee (if the Loan is outstanding and the Liens of the Security Documents have not been discharged and released) under this Section 22.2 hereof for resolution15.2 (including, without limitation, reasonable attorneys' fees and expenses) and the cost of construction as described in clause (1), the cost of replacement as described in clause (2) or the cost of restoration as described in clause (3) of the first sentence of this Section 15.
Appears in 2 contracts
Sources: Lease Agreement (Royal Ahold), Lease Agreement (Royal Ahold)
Partial Taking. If title Subject to any Loan Documents, in case of a Taking of less than the whole all of the Leased Property is condemnedProperty, and Lessor shall receive the entire award for the Taking and, except as specifically set forth in this Section, no claim or demand of any kind shall be made by Lessee against Lessor or any other party who could, by virtue of a claim against it, make a claim against Lessor by reason of such Taking.
(a) In the case of a Taking of a portion, but less than all, of the Leased Property, Lessee shall determine, in Lessee’s reasonable discretion, whether the remaining Project (after Restoration referred to in (c), below (i) can be used for the Primary Intended Use and (ii) will allow Lessee to complete the Restoration for an amount not to exceed the proceeds from the Taking. If it is determined by Lessee that the remaining Leased Property is cannot Unsuitable be used for its the Primary Intended Use, then and in such event this Lease shall terminate as of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination. If it is determined that Lessee cannot Uneconomic complete the Restoration for its Primary Intended Use, an amount that is less than or if equal to the proceeds from the Taking then and in such event Lessee or Lessor is entitled but neither elects can elect to terminate this Lease as provided of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination; provided, however, that if there is at least 24 months remaining in Section 15.3the Term, Lessor may agree to pay the excess Restoration expenses in which case this Lease shall not terminate and Lessee at its cost and shall undertake the Restoration of the Project in accordance with the terms of this Lease and any Construction Services Agreement entered into (c), below.
(b) If, in connection herewith, shall with the case of a Taking of less than all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationLeased Property, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated in accordance with the provisions of (a) above, this Lease shall continue in full force and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor effect as aforesaid, shall (subject to the requirements remaining portion of the Leased Property without any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result reduction in a termination of this Lease, the Base Rent and Percentage Rent, except as expressly provided in Section 15.3. No such partial taking shall operate as or be abated in deemed an eviction of Lessee from that portion of the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues Leased Property not affected by such partial Taking or in any way terminate, diminish, suspend, ▇▇▇▇▇ or impair the obligation of Lessee to observe and changes in perform fully all the Hotel's projected net operating income following such partial Taking. If Lessor and covenants of this Lease on the part of Lessee are unable to agree upon be performed with respect to the amount remainder of such abatement within thirty (30) days after such the Leased property unaffected by the partial Taking, except as to any reduction (if any) in the matter may Base Rent and Percentage Rent as expressly provided in Section 15.3.
(c) If, in the case of a Taking of less than all of the Leased Property, this Lease is not terminated in accordance with the provisions of (a) above, Lessee shall, prior to the expiration of the Term of this Lease, commence and proceed with reasonable diligence to complete the Restoration provided, however, that Lessor shall, in this case, make the award in the Condemnation Proceedings and, in the case of (a) above, such award plus any excess funds due from Lessor, available to Lessee to be submitted by either party utilized for Restoration of the Leased Property in the following manner, and subject to arbitration under Section 22.2 hereof for resolution.the following conditions and provisions. Lessor shall be entitled to receive and retain the remainder of the award not needed to complete the Restoration (the “Surplus”)
Appears in 2 contracts
Sources: Master Lease Agreement (Moody National REIT I, Inc.), Hotel Lease Agreement (Moody National REIT I, Inc.)
Partial Taking. If title to Upon any such taking of less than the whole or substantially all of the Leased Property Project Site, as promptly as possible a determination under the ESA shall be made as to whether the ESA shall be terminated pursuant to Section 7.1(c) thereof.
(a) If the ESA is condemnedterminated as a result of such partial taking, then this Lease shall be terminated concurrently with the termination of the ESA and Landlord and Tenant shall share any award or awards as follows: (i) if the aggregate amount of such awards equals or exceeds (x) the purchase price then payable under Section 9.3 of the ESA plus (y) the fair value of the portion of the Project Site being taken, then Landlord shall be entitled to receive an amount equal to the fair value of the Project Site being taken and Tenant shall be entitled to receive an amount equal to the purchase price which would then be payable under Section 9 of the ESA if the Project were then purchased by Landlord from Tenant pursuant to such section, and Landlord and Tenant shall each be entitled to receive an amount equal to fifty (50) percent of the Leased Property amount (if any) by which the aggregate awards exceed the amount described in clauses (x) and (y) immediately preceding; and (ii) if the aggregate awards are less than an amount equal to the aggregate amount under clauses (i)(x) and (i)(y) preceding,
(b) If the ESA is not Unsuitable for terminated as a result of such partial taking, then (i) Tenant, at its Primary Intended Usesole cost and expense, shall complete Tenant's Work and not Uneconomic for comply with its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate obligations in respect of restoring the Project set forth in Section 7.1(a) of the ESA; (ii) this Lease as provided shall continue and the Term shall not be reduced or affected in Section 15.3any way; and (iii) at Tenant's election, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into award or awards made in connection herewith, with such taking shall with all reasonable dispatch, but only be distributed to Tenant in whole or in part and the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may amount which Tenant receives shall be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute applied to the cost and expense of restoration that part of its Award specifically allocated restoring the Project, with any excess deemed to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without be a payment in any way affecting any reduction of the Other Leases "Investment in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have Northwind Facilities" under the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorESA. In the event of a partial Taking that does not result such excess is applied to reduce the "Investment in a termination of this Lease, the Base Rent Northwind Facilities," the Contract Capacity Charge payable by Landlord under the ESA shall be abated reduced to reflect such payment (such reduction to be determined by assuming that such payment is applied 60% in reduction of debt incurred to finance the manner Project and 40% as a return of Tenant's capital). If the ESA is not terminated, then, to the extent (if any) that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factorsthe cost of restoring the Project exceeds any award or awards which are received by Tenant, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes "Investment in the HotelNorthwind Facilities" shall be adjusted accordingly and Landlord's projected net operating income following such partial Taking. If Lessor and Lessee are unable obligation to agree upon pay the amount Contract Capacity Charge under the ESA during the balance of such abatement within thirty (30) days after such partial Taking, the matter may term thereof then in effect shall be submitted by either party to arbitration under Section 22.2 hereof for resolutionmodified in accordance therewith.
Appears in 2 contracts
Sources: Lease (Aladdin Gaming Enterprises Inc), Lease (Aladdin Gaming Holding LLC)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, Use and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 2 contracts
Sources: Consolidated Lease Agreement (Equity Inns Inc), Consolidated Lease Agreement (Equity Inns Inc)
Partial Taking. If title to less than the whole any portion of the any Leased Property is condemnedtaken by Condemnation, and the this Lease shall remain in effect as to such Leased Property if the Facility(ies) located thereon is not thereby rendered Unsuitable for its For Its Primary Intended Use as reasonably determined by Landlord, but if the Facility(ies) is/are thereby rendered Unsuitable For Its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease shall terminate as provided to such Leased Property on the Date of Taking, in which event the provisions of Section 15.3, Lessee at its cost and in accordance with 17.9 governing the terms deletion of one or more Leased Properties from this Lease and any Construction Services Agreement entered into in connection herewithupon a Condemnation shall apply. If, shall with all reasonable dispatch, but only to the extent as a result of any Award funds made available to Lessee and any other sums advanced such partial taking by Lessor pursuant to this SectionCondemnation, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated as provided above, Tenant’s obligation to make payments of Rent and Lessee restores to pay all other charges required under this Lease shall remain unabated during the HotelTerm notwithstanding such Condemnation, unless the Award fundstaking includes a material part of the Facility on any Leased Property, in which event, from and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restorationtaking, and reimbursement of Lessor for any sums advanced by Lessor hereunder, Rent hereunder shall be retained equitably abated, as determined by LessorLandlord, in its reasonable discretion. In the event of a any partial Taking that does not result in a termination taking by Condemnation of this Leaseany Leased Property, the Base Rent entire Award shall belong to and be paid to Landlord, except that, subject to the rights of any Facility Mortgagees, Tenant shall be abated in entitled to receive from the manner Award, if and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factorssuch Award specifically includes such item, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking following: (i) a sum specifically attributable to Tenant’s Personal Property and changes any reasonable removal and relocation costs included in the Hotel's projected net operating income following such partial Taking. If Lessor Award; and Lessee are unable (ii) a sum specifically attributable to agree upon the amount cost of such abatement within thirty restoring the Leased Property in accordance with Section 16.4 hereof; and (30iii) days after such partial Takinga sum specifically attributable to the interruption of business operations, which sum, if and to the matter may extent received by Landlord, shall be submitted by either party credited against payments of Rent and other charges due from Tenant to arbitration Landlord under Section 22.2 hereof for resolutionthis Lease.
Appears in 2 contracts
Sources: Master Lease Agreement (Emeritus Corp\wa\), Master Lease Agreement (Emeritus Corp\wa\)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however thathowever, that if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's ’s Notice of termination, a Notice to Lessee of Lessor's ’s unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements terms of any ground or building lease or Mortgage) lender mortgage, shall be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 2 contracts
Sources: Lease Agreement (MHI Hospitality CORP), Lease Agreement (MHI Hospitality CORP)
Partial Taking. If title to less than In the whole event of a Partial Taking of the Leased Property is condemnedFacility, Tenant shall commence and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects diligently proceed to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any the Leased Improvements on the Leased Property so that such Leased Improvements shall constitute a complete architectural unit (if applicable) of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the ImprovementsPartial Taking; provided, however, that if a Partial Taking renders the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionFacility Unsuitable for Its Primary Intended Use, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor Tenant shall have the right, in its sole discretion, exercisable by written notice to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement Landlord within thirty (30) days after such partial Partial Taking is final without appeal permitted, and before the Condemnor takes possession, to purchase the Facility for the Facility Purchase Price, which purchase shall be completed within sixty (60) days of such notice. Landlord shall contribute to the cost of restoration, or if Tenant elects to purchase the Facility, Landlord shall pay over to Tenant, any Award payable to Landlord for such Partial Taking; provided, however, that the amount of such contribution shall not exceed the cost of restoration. If (a) Tenant elects to restore the Facility, (b) no Event of Default is then continuing and (c) the Award is equal to or less than the Approval Threshold, then Landlord's contribution shall be made to Tenant prior to the commencement of the restoration. If (a) Tenant elects to restore the Facility, (b) no Event of Default is then continuing and (c) the Award is more than the Approval Threshold, then Landlord shall make the Award available to Tenant in the manner provided in Section 14.10 hereof for insurance proceeds in excess of the Approval Threshold. The Base Rent shall be reduced by reason of such Partial Taking to an amount agreed upon by Landlord and Tenant, and if Landlord and Tenant cannot agree upon a new Base Rent, the new Base Rent amount shall be equal to the Base Rent prior to the Partial Taking, reduced in proportion to the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionreduction in the Fair Rental Value of the Facility or Leased Property resulting from the Partial Taking.
Appears in 2 contracts
Sources: Lease (Monarch Properties Inc), Lease Agreement (Monarch Properties Inc)
Partial Taking. If title Unless this Lease shall be terminated as aforesaid, Tenant shall, with reasonable promptness (subject to less than delays covered by matters beyond Tenant’s reasonable control), cause the whole remainder of the Leased Property is condemnedPremises to be repaired and restored to a complete architectural unit as nearly as commercially reasonably possible to their value, condition and character immediately prior to such taking, provided that Tenant shall comply with the provisions of Section 7.2 above. For such purposes, in the event that Tenant encumbers its interest in the Premises, the full amount of the Tenant’s Interest in the Award will be deposited with the Leasehold Mortgagee, and Leasehold Mortgagee shall disburse such Award to be applied towards the Leased Property is not Unsuitable for its Primary Intended Use, cost of such repairs and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided restorations in accordance with the procedures set forth in Section 15.37.3 above. Any portion of the Tenant’s Interest in the Award that shall not have been expended for such repairs or restorations shall be paid to Landlord in respect of Landlord’s Interest and to Tenant in respect of Tenant’s Interest. Notwithstanding the foregoing to the contrary, Lessee at in the event Tenant encumbers its cost and interest in the Premises, the Tenant’s Interest in the Award shall be disbursed in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount provisions of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionleasehold mortgage, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the rightLeasehold Mortgagee may, in its sole reasonable discretion, to nullify direct that the termination and keep this Lease Tenant’s Interest in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject be applied to the requirements repayment of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time Tenant’s indebtedness to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionLeasehold Mortgagee.
Appears in 2 contracts
Sources: Ground Lease Agreement, Ground Lease Agreement (CNL Healthcare Properties, Inc.)
Partial Taking. If title In the event of a Partial Taking of a Facility, Tenant shall commence and diligently proceed to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any the Leased Improvements on the applicable Leased Property so that such Leased Improvements shall constitute a complete architectural unit (if applicable) of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the ImprovementsPartial Taking; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionif a Partial Taking renders a Facility Unsuitable for Its Primary Intended Use, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor Tenant shall have the right, in its sole discretion, exercisable by written notice to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement Landlord within thirty (30) days after such partial Partial Taking is final without appeal permitted, and before the Condemnor takes possession, to purchase the affected Facility for the Facility Purchase Price, which purchase shall be completed within sixty (60) days of such notice. Landlord shall contribute to the cost of restoration, or if Tenant elects to purchase the affected Facility, Landlord shall pay over to Tenant, any Award payable to Landlord for such Partial Taking; provided, however, that the amount of such contribution shall not exceed the cost of restoration. If (a) Tenant elects to restore the Facility and (b) no Event of Default is then continuing, then Landlord shall make the Award available to Tenant in the manner provided in Section 14.10 hereof. The Base Rent shall be reduced by reason of such Partial Taking to an amount agreed upon by Landlord and Tenant, and if Landlord and Tenant cannot agree upon a new Base Rent, the new Base Rent amount shall be equal to the Base Rent prior to the Partial Taking, reduced in proportion to the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionreduction in the Fair Rental Value of the affected Facility of Leased Property resulting from the Partial Taking.
Appears in 2 contracts
Sources: Master Lease (Monarch Properties Inc), Master Lease (Integrated Health Services Inc)
Partial Taking. If title to less In the event that (a) more than the whole twenty-five percent (25%) of the Leased Property floor area of any of the Premises is condemnedtaken under the power of eminent domain; or (b) by reason of any appropriation or taking, and regardless of the Leased Property amount so taken, the remainder of any of the Premises is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, one undivided parcel of property; or if Lessee or Lessor is entitled but neither elects to terminate this Lease (c) as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent a result of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Sectiontaking, restore regardless of the untaken portion amount so taken, the remainder of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (Premises is rendered unsuitable for the continued operation of Tenant’s business as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall determined by Tenant in good faith seek a fair and equitable allocation of any Award among restorationbased on commercially reasonable standards and criteria, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor Tenant shall have the right, in addition to its sole discretionrights under Article 24, to nullify the termination and keep terminate this Lease with respect to such taken Premises, upon giving notice in full force by providing, writing of such election within thirty sixty (3060) days after Lessee's Notice receipt by Tenant from Landlord of written notice that said Premises have been so appropriated or taken (with the understanding that such period of time may be extended as reasonably necessary for Tenant to assess the effect of such partial taking on Tenant’s continued operation of its business at the Premises, subject to Landlord’s prior written consent, which consent shall not be unreasonably withheld) provided Tenant shall continue to pay Annual Rent and other amounts accruing hereunder through the date of termination. In the event of such termination, a Notice upon Tenant’s payment to Lessee Landlord of Lessor's unconditionalall rents and other amounts accruing hereunder through such date and in connection with such termination as set forth herein, legally binding obligation both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder, except as to obligations hereunder which survive the termination hereof and the Annual Rent shall be responsible for all restoration costs adjusted as set forth in excess Section 15.05 below. Each Party agrees immediately after learning of any actual or contemplated appropriation or taking to give to the Awardsother party notice in writing thereof. If this Lease is not terminated terminated, Tenant shall remain in that portion of the Premises not so taken and Lessee restores the HotelTenant, the Award funds, at Tenant’s sole cost and any other sums made available by Lessor as aforesaidexpense, shall (subject restore the remaining portion of the Premises as soon as possible to a complete unit of the requirements of any ground or building lease or Mortgage) be held by Lessor quality and paid out by Lessor from time character as existed prior to time such taking. Landlord agrees to reimburse Tenant for the reasonable costs cost of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement but in no event shall Landlord’s obligation to reimburse Tenant for the cost of Lessor restoring the remaining portion of the Premises exceed the amount of award of compensation that Landlord receives for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking taking of that does portion of the Premises resulting in the need for restoration. So long as this Lease is not result in a termination of this Lease, the Base Rent shall be abated terminated in the manner and to provided above, there shall be an adjustment of the extent that is fair, just and equitable to both Lessee and Lessor, Annual Rent payable by Tenant hereunder for the Premises by reason of any partial taking into consideration, among other relevant factors, as set forth in Section 15.05 below. Tenant hereby waives any statutory rights of termination which may arise by reason of any partial taking of any of the number Premises under the power of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutioneminent domain.
Appears in 2 contracts
Sources: Master Lease (American Restaurant Group Inc), Master Lease (American Restaurant Group Inc)
Partial Taking. If title to the fee of less than the whole of a Leased Property shall be so taken or condemned, Lessee shall give Lessor Notice of such partial taking or condemnation within five (5) Business Days of the occurrence thereof. If such Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic still suitable for its Primary Intended Use, or if Lessee or Lessor is entitled shall be so entitled, but neither elects shall not elect to terminate this Master Lease with respect to such Leased Property as provided in Section 15.315.3 hereof, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, dispatch restore the untaken portion of any the Leased Improvements on such Leased Property so that such Leased Improvements shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to such Condemnation or Taking. Lessee shall commence the Condemnationrestoration of the Facility on such Leased Property within sixty (60) days of the Partial Taking, and shall complete the restoration within the Reconstruction Period following such Partial Taking. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part such portion of its the Condemnation Award specifically allocated payable to such restorationLessor, if any, together with severance and other damages awarded for the taken Leased Improvements; , provided, however, the amount of such contribution will shall not exceed such costthe cost of restoration. If the Awards are not adequate to restore the Hotel to that condition, each As long as no Event of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however thatDefault has occurred hereunder, if such termination the Award is by Lesseein an amount less than the Self-Administered Amount, Lessor shall have pay the rightsame to Lessee. As long as no Event of Default has occurred hereunder, if the Award is in its sole discretionan amount more than the Self-Administered Amount, Lessor shall make the portion of the Award to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice which it is entitled available to Lessee of Lessor's unconditional, legally binding obligation to be responsible in the same manner as is provided in Section 14.9 for all restoration costs insurance proceeds in excess of the AwardsSelf-Administered Amount. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the The Base Rent shall be abated in the manner reduced by reason of such Partial Taking to an amount agreed upon by Lessor and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial TakingLessee. If Lessor and Lessee are unable to cannot agree upon a new Base Rent, then the amount Base Rent for such Facility shall be proportionately reduced in accordance with the number of licensed beds no longer operable at such abatement Facility solely by reason of the Partial taking. If Lessee fails to make the election or if it elects not to restore, or if it fails to commence or complete the restoration within thirty the time limits specified in this Section 15.5, then Lessee shall be deemed to have elected to purchase such affected Leased Property for a purchase price equal to the Minimum Purchase Price. If Lessee fails to make the election to terminate this Lease as to the affected Leased Property or if it is required to restore the affected Leased Property but thereafter fails to commence or complete the restoration within the time periods specified in this Section 15.5, then Lessee shall be deemed to have elected to purchase such affected Leased Property for a purchase price equal to the Minimum Purchase Price. Lessee shall complete the purchase within (30i) one hundred eighty (180) days of the Partial Taking if Lessee elects not to restore or (ii) sixty (60) days after the end of the Reconstruction Period in the event Lessee elects, but fails, to restore the affected Leased Property. In any such partial Takingpurchase, Lessee shall receive a credit for the matter may be submitted portion of any Award retained by either party to arbitration under Section 22.2 hereof for resolutionLessor.
Appears in 2 contracts
Sources: Master Lease Agreement (Omega Healthcare Investors Inc), Master Lease Agreement (Sun Healthcare Group Inc)
Partial Taking. If title Subject to any Loan Documents, in case of a Taking of less than the whole all of the Leased Property is condemnedProperty, and Lessor shall receive the entire award for the Taking and, except as specifically set forth in this Section, no claim or demand of any kind shall be made by Lessee against Lessor or any other party who could, by virtue of a claim against it, make a claim against Lessor by reason of such Taking.
(a) In the case of a Taking of a portion, but less than all, of the Leased Property, Lessee shall determine, in Lessee’s reasonable discretion, whether the remaining Project (after Restoration referred to in (c), below (i) can be used for the Primary Intended Use and (ii) will allow Lessee to complete the Restoration for an amount not to exceed the proceeds from the Taking. If it is determined by Lessee that the remaining Leased Property is cannot Unsuitable be used for its the Primary Intended Use, then and in such event this Lease shall terminate as of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination. If it is determined that Lessee cannot Uneconomic complete the Restoration for its Primary Intended Use, an amount that is less than or if equal to the proceeds from the Taking then and in such event Lessee or Lessor is entitled but neither elects can elect to terminate this Lease as provided of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination; provided, however, that if there is at least 24 months remaining in Section 15.3the Term, Lessor may agree to pay the excess Restoration expenses in which case this Lease shall not terminate and Lessee at its cost and shall undertake the Restoration of the Project in accordance with the terms of this Lease and any Construction Services Agreement entered into (c), below.
(b) If, in connection herewith, shall with the case of a Taking of less than all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationLeased Property, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated in accordance with the provisions of (a) above, this Lease shall continue in full force and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor effect as aforesaid, shall (subject to the requirements remaining portion of the Leased Property without any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result reduction in a termination of this Lease, the Base Rent and Percentage Rent, except as expressly provided in Section 15.3. No such partial taking shall operate as or be abated in deemed an eviction of Lessee from that portion of the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues Leased Property not affected by such partial Taking or in any way terminate, diminish, suspend, a▇▇▇▇ or impair the obligation of Lessee to observe and changes in perform fully all the Hotel's projected net operating income following such partial Taking. If Lessor and covenants of this Lease on the part of Lessee are unable to agree upon be performed with respect to the amount remainder of such abatement within thirty (30) days after such the Leased property unaffected by the partial Taking, except as to any reduction (if any) in the matter may Base Rent and Percentage Rent as expressly provided in Section 15.3.
(c) If, in the case of a Taking of less than all of the Leased Property, this Lease is not terminated in accordance with the provisions of (a) above, Lessee shall, prior to the expiration of the Term of this Lease, commence and proceed with reasonable diligence to complete the Restoration provided, however, that Lessor shall, in this case, make the award in the Condemnation Proceedings and, in the case of (a) above, such award plus any excess funds due from Lessor, available to Lessee to be submitted by either party utilized for Restoration of the Leased Property in the following manner, and subject to arbitration under Section 22.2 hereof for resolutionthe following conditions and provisions. Lessor shall be entitled to receive and retain the remainder of the award not needed to complete the Restoration (the “Surplus”).
Appears in 2 contracts
Sources: Hotel Lease Agreement (Moody National REIT II, Inc.), Master Lease Agreement (Moody National REIT I, Inc.)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 2 contracts
Sources: Consolidated Lease Amendment (Equity Inns Inc), Lease Agreement (Equity Inns Inc)
Partial Taking. If title to less than On a partial taking, this lease shall remain in full force and effect, covering the whole remaining property, except that the net rent shall be reduced in the same ratio as the dollar amount of the Leased Property is condemnedaward, excluding interest and severance damages, bears to the total fair market value of the Premises before the taking, as determined by the most recent appraisal made for the property. Both parties waive their rights to petition for termination of the lease under section 1265.130 of the California Code of Civil Procedure. Promptly after a partial taking, at Tenant’s expense and in the manner specified in provisions of this lease relating to maintenance, repairs, and the Leased Property is not Unsuitable for its Primary Intended Usealterations, and not Uneconomic for its Primary Intended UseTenant shall repair, alter, modify, or if Lessee or Lessor is entitled but neither elects reconstruct the improvements (hereafter referred to terminate this Lease as provided in Section 15.3, Lessee at its restoring) so as to make them reasonably suitable for Tenant’s continued occupancy for the uses and purposes for which the Premises are leased. If the reasonably estimated cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character work represents more than twenty-five percent (25%) of the then fair market value of the leasehold improvements before the taking, Tenant may, in the manner provided for a substantial taking, elect to treat the taking as substantial. On a partial taking, all sums, including damages and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationinterest, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; fee title or the leasehold or both, shall be deposited promptly with an escrow agent acceptable to both parties (acceptance not to be unreasonably withheld) and shall be distributed and disbursed in the following order to priority: First, to Landlord and Tenant, as herein provided, howeverreimbursement of all costs and expenses of collection of the award, including fees and expenses incurred in the condemnation proceeding. Second, to Tenant, reimbursement of the costs and expenses of restoration of the improvements, as such costs and expenses are reasonably incurred by Tenant, plus any amount awarded for detriment to business. Third, to the leasehold mortgagee, such sum as is necessary to reduce the principal amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any lien of the Other Leases in effect, by giving Notice leasehold mortgagee to not more than the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess appraised fair market value of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall improvements (subject to the requirements remaining term of any ground or building this lease) upon completion of such restoration. Fourth, the remainder shall be divided between Landlord and Tenant in the ratio, as nearly as practicable, which (i) the then value of Landlord’s interest in the Premises including its interest under this lease or Mortgageas determined by appraisal as provided below bears to (ii) be held by Lessor the then value of Tenant’s interest in the improvements constructed on the Premises and paid out by Lessor from time to time under this lease for the reasonable costs remainder of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced the lease term determined by Lessor hereunder, appraisal as provided below (provided that Tenant’s share thereof shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and subject to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number rights of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionall leasehold mortgagees).
Appears in 1 contract
Partial Taking. If title Landlord agrees, immediately after learning of any appropriation or Taking, to less give to Tenant notice in writing thereof (the "Taking Notice"). In the event that (i) more than the whole 25% of the Leased Property Gross Leasable Area of the Premises, including the parking area serving the Premises, is condemnedTaken, and (ii) by reason of any appropriation or Taking, regardless of the Leased Property amount so Taken, the remainder of the Premises is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Useone undivided parcel of property, or if Lessee or Lessor is entitled but neither elects to terminate this Lease (iii) as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent a result of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this SectionTaking, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit regardless of the same general character and condition (as nearly as may be possible under amount so Taken, the circumstances) as remainder of the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded Premises is rendered unsuitable for the Improvements; providedcontinued operation of Tenant's business, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee either Landlord or Tenant shall have the right to terminate this Lease, without in any way affecting any Lease as of the Other Leases in effectdate Tenant is required to vacate a portion of the Premises, by giving Notice to the other; provided, however that, if other notice of such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, election within thirty (30) 30 days after Lessee's Notice receipt by Ten- ant of the Taking Notice. In the event of such termination, a Notice upon Tenant's payment to Lessee Landlord of Lessor's unconditionalall rents accruing through such date, legally binding obligation both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder. If both parties elect not to be responsible for all restoration costs terminate this Lease, Tenant shall remain in excess that portion of the AwardsPremises not so Taken and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion of the Premises as soon as possible to a complete unit of like quality and character as existed prior to such Taking. If Provided the same does not exceed the amount of compensation award Landlord receives for a partial taking of the Premises Landlord agrees to reimburse Tenant for the cost of restoration of the Premises. So long as this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to provided above, there shall be an equitable adjustment of the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number rent payable by Tenant hereunder by reason of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon Tenant hereby waives any statutory rights of termination which may arise by reason of any partial Taking of the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionPremises.
Appears in 1 contract
Sources: Assignment and Assumption of Lease Agreement (Aei Income & Growth Fund 25 LLC)
Partial Taking. If title to less than the whole such a material portion of the Leased Property Premises shall be taken or condemned, as aforesaid, this Lease shall continue and shall remain in full force and effect; provided, however, that the Base Rent hereunder shall thereafter be reduced in an equitable manner in proportion to the reduction in value of the Premises for Tenant's use. The Base Rent shall be reduced to the product obtained when the Base Rent otherwise payable hereunder is condemnedmultiplied by a fraction, the numerator of which shall be the total floor area of the Building (expressed in square feet) remaining following the condemnation and restoration, and the Leased Property is not Unsuitable for its Primary Intended Usedenominator of which shall be the total floor area thereof (expressed in square feet) upon the Commencement Date. Such reduction in Base Rent shall first become effective as of the first day of the month next succeeding the date of vesting of title in the condemning authority, and shall not Uneconomic for its Primary Intended Usein any event diminish, reduce or ▇▇▇▇▇ the Impositions, Additional Rent and other charges payable hereunder by Tenant. In the event of such a partial condemnation, Tenant shall promptly make, or if Lessee cause to be made, all demolition, repairs, reconstruction, restoration, replacement or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3rebuilding and all other work necessary, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under practicable, to restore the circumstances) as Building Elements to the Improvements existing utility and condition immediately prior to such taking (and including any new parking areas and/or demolition of the Condemnationexisting Building, to the extent the same may be reasonably necessary to accommodate Tenant's use of the Premises after the condemnation). Lessor The net proceeds of the award in respect of such partial taking or condemnation, after the payment of all fees and expenses incurred in connection with the collection of such award, shall be paid over to Landlord, and shall be held in good faith seek a fair trust by Landlord or Landlord's designee and equitable allocation shall be made available to Tenant as work progresses (subject to periodic delivery to Landlord of any Award among restoration, taken Improvements and other elements. Lessor will contribute appropriate architect's certifications as to the cost of restoration that part the required work remaining until full completion, and title company certifications as to the absence of its Award specifically allocated any liens, or encumbrances relating to such restoration, together with severance and other damages awarded work) for use in making payments when due for the Improvements; provideddemolition, howeverrepairs, restoration or replacement required under this Article 14, and pursuant to such controls and subject to such approvals as Landlord or Landlord's mortgagee shall reasonably require. If such proceeds shall be insufficient to pay the entire cost of such work, Tenant agrees to pay the deficiency. At any time after the completion of such work, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any balance of the Other Leases in effect, by giving Notice proceeds not theretofore used pursuant to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep foregoing provisions of this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, section shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent paid to Landlord or Landlord's mortgagee as their interests shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionappear.
Appears in 1 contract
Sources: Lease (Pemstar Inc)
Partial Taking. (i) If title to less more than the whole twenty-five percent (25%) of the Leased Property rentable square feet of the Premises is condemnedtaken on a non-temporary basis, or (ii) if access to the Premises, including access to the Office Elevators is materially impaired, or (iii) access to, and use of, the Leased Property Parking Garage, is materially impaired (and Landlord has not Unsuitable for its Primary Intended Usemade reasonably comparable parking available to Tenant in reasonable proximity to the Building), and not Uneconomic for its Primary Intended Usethen in any such event, or if Lessee or Lessor is entitled but neither elects Tenant shall have the option to terminate this Lease effective as provided in Section 15.3, Lessee at its cost and in accordance with of the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only date possession is required to be surrendered to the extent authority. Landlord shall give prompt notice to Tenant of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded order for the Improvements; providedtaking entered by a court of competent jurisdiction, however, and the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee parties shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice delivery of terminationLandlord’s notice to exercise the foregoing termination rights. If a party having the right to terminate this Lease under this Section 13.2 fails to give such notice of termination within such thirty (30) day period, a Notice such right shall be deemed waived and this Lease shall remain in full force and effect. Tenant shall not because of such taking assert any claim against Landlord or the authority for any compensation because of such taking and Landlord shall be entitled to Lessee the entire award or payment in connection therewith, except that Tenant shall have the right to file any separate claim available to Tenant for any taking of Lessor's unconditional, legally binding obligation Tenant’s personal property and fixtures belonging to be responsible for all restoration costs in excess Tenant and removable by Tenant upon expiration of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject Term pursuant to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, and for moving expenses, so long as such claims do not diminish the Base award available to Landlord, its ground lessor with respect to the Building or Project or its mortgagee, and such claim is payable separately to Tenant. All Rent shall be apportioned as of the date of such termination. If any part of the Premises is taken, and this Lease shall not be so terminated, (a) the Rent shall be abated in the manner and proportion to the extent ratio that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of rentable square footagefeet of the Premises which has been taken (or which is not usable for the Permitted Use, without taking extraordinary measures or incurring material expense, as a result of taking bears to the total rentable square feet of the Premises, as a result of the taking) bears to the total rentable square feet of the Premises, and (b) Landlord at its expense, shall restore the remainder of the Base Building, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial TakingPremises, the matter may Tenant Improvements, any Alterations, and the Common Areas in accordance with Section 13.5 below. Tenant hereby affirms that all condemnation proceeds applicable to the Base Building, Premises, Tenant Improvements, any subsequent Alterations and Common Areas shall be submitted by either party to arbitration under Section 22.2 hereof for resolutionthe sole and exclusive property of Landlord.
Appears in 1 contract
Sources: Office Lease (F5 Networks Inc)
Partial Taking. If title to less than a Partial Taking occurs, then the whole Term shall not be reduced or affected in any way, this Lease shall remain in full force and effect for the portion of the Leased Property is condemnedPremises remaining after such Taking, and the Leased Property is not Unsuitable for its Primary Intended Useportion of the Annual Rent payable under Section 3.1 of this Lease shall only be reduced if the Premises and the Improvements thereon are subject to the Taking, and not Uneconomic if so taken, the reduction in Annual Rent shall be determined by appraisal based upon the same or similar method set forth in Article III hereof for its Primary Intended Usedetermining an appraisal rent. Provided, or however, if Lessee or Lessor all of the Premises is entitled but neither elects taken, and CDA receives the condemnation award for the fee title interest of the Premises, then the Annual Rent shall be reduced to terminate this Lease as provided in Section 15.3$ -0 -. The following provisions shall apply to the allocation of any Condemnation Award for such Partial Taking:
(a) All sums, Lessee at its cost including damages and in accordance interest, constituting the Condemnation Award shall be deposited promptly with a mutually agreeable escrow agent, and shall be distributed and disbursed pursuant to the terms of this Lease and any Construction Services Agreement entered into in connection herewith, Subsection 10.4.3;
(b) The Company shall with all reasonable dispatch, but only receive an amount sufficient to restore the Premises to an economically feasible state as close as is practicable to the extent condition set forth in the Construction Agreements originally approved by CDA and shall commence and thereafter proceed to repair, alter, raze or restore the remaining part of the Premises, or otherwise to secure the Premises and render the Premises safe. Notwithstanding anything to the contrary contained herein, if after partial taking, the Premises is not, in YIDA's or the Company's reasonable judgment, economically viable, YIDA can terminate this Lease.
(c) The remainder of the Condemnation Award shall be distributed and disbursed in the following amounts and in the following order of priority:
(1) To CDA a sum equal to the greater of (i) the Purchase Price as adjusted under Article XII hereof or (ii) the fair market value of CDA's fee title interest in the Premises as encumbered by this Lease which sum shall be further adjusted based upon the square footage of the Premises so taken; and then
(2) Subject to the rights of Leasehold Mortgagees, to the Company the balance of the Condemnation Award. If the Condemnation Award received by the Company is insufficient to pay the entire cost of the Restoration Work, then YIDA shall cause the Company to pay the amount of any Award funds made available such deficiency. Under no circumstances shall CDA be obligated to Lessee and make any other sums advanced by Lessor pursuant to this Sectionpayment, restore the untaken portion disbursement or contribution towards or on account of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionRestoration Work.
Appears in 1 contract
Sources: Development Lease Agreement
Partial Taking. If title to less than the whole any portion of the any Leased Property is condemnedtaken by Condemnation, and the this Lease shall remain in effect as to such Leased Property if the Facility(ies) located thereon is not thereby rendered Unsuitable for its For Its Primary Intended Use as reasonably determined by Landlord, but if the Amberleigh Facility(ies) is/are thereby rendered Unsuitable For Its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease shall terminate as provided to such Leased Property on the Date of Taking, in which event the provisions of Section 15.3, Lessee at its cost and in accordance with 17.9 governing the terms deletion of one or more Leased Properties from this Lease and any Construction Services Agreement entered into in connection herewithupon a Condemnation shall apply. If, shall with all reasonable dispatch, but only to the extent as a result of any Award funds made available to Lessee and any other sums advanced such partial taking by Lessor pursuant to this SectionCondemnation, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated as provided above, Tenant's obligation to make payments of Rent and Lessee restores to pay all other charges required under this Lease shall remain unabated during the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of Term notwithstanding such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorCondemnation. In the event of a any partial Taking that does not result in a termination taking by Condemnation of this Leaseany Leased Property, the Base Rent entire Award shall belong to and be paid to Landlord, except that, subject to the rights of any Facility Mortgagees, Tenant shall be abated in entitled to receive from the manner Award, if and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factorssuch Award specifically includes such item, the following: (i) a sum specifically attributable to Tenant's Personal Property and any reasonable removal and relocation costs included in the Award; and (ii) a sum specifically attributable to the cost of restoring the Leased Property in accordance with Section 16.4 hereof; and (iii) a sum specifically attributable to the interruption of business operations, which sum, if and to the extent received by Landlord, shall be credited against payments of Rent and other charges due from Tenant to Landlord under this Lease unless the taking permanently removes from operation a material number of usable roomsunits in the Facility on any Leased Property, in which event, from and after such taking, the amount of square footageFixed Rent hereunder for such Leased Property shall be equitably abated, the revenues affected as determined by such partial Taking and changes Landlord, in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of its reasonable discretion, provided that in no event shall any such abatement within thirty exceed (30on an annual basis) days after an amount in excess of eight percent of the condemnation award retained by Landlord with respect to such partial Taking, the matter may be submitted by either party taking and not applied to arbitration under Section 22.2 hereof for resolutionrepair or restore such Facility.
Appears in 1 contract
Sources: Master Lease Agreement (Capital Senior Living Corp)
Partial Taking. If title In the event of a Partial Taking during the term hereof (1) the rights of Tenant under the Lease and leasehold estate of Tenant in and to less than the whole portion of the Leased Property is condemned, Total Project taken shall cease and terminate as of the Leased Property is not Unsuitable for its Primary Intended Use, Date of Taking; (2) from and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with after the terms Date of this Lease and any Construction Services Agreement entered into in connection herewith, Taking the Monthly Installment of rent shall with all reasonable dispatch, but only be an amount equal to the extent product obtained by multiplying the Monthly Installment of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing rent immediately prior to the Condemnation. Lessor shall Taking by a fraction, the numerator of which is the number of square feet contained in good faith seek a fair the Building after the Taking and equitable allocation the denominator of any Award among restoration, taken Improvements and other elements. Lessor will contribute which is the number of square feet contained in the Building prior to the Taking; (3) Tenant shall receive from the Award the portions of the Award attributable to (a) the unamortized cost of restoration that part of its Award specifically Tenant Improvements constructed or installed in the Building by Tenant, at Tenant's cost (allocated on a per square foot basis to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount portion of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionTenant Improvements taken), each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated unamortized cost of Landlord's deemed contribution to such Tenant Improvements (allocated on a per square foot basis to the portion of such Tenant Improvements taken and Lessee restores which deemed contribution shall be equal to Twenty Dollars ($20.00) per square foot of the HotelBuilding), which amortization shall be calculated on a straight-line basis over a fifteen-year period, (b) the Expansion Building(s) and the leasehold improvements therein paid for by Tenant, (c) movable personal property or trade fixtures of Tenant, and (d) removal costs; and (4) the remainder of the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessorpaid to and be the property of Landlord. In the event of a partial Taking that does not result in a termination of this LeasePartial Taking, the Base Rent Landlord shall be abated in the manner and restore, to the extent that is fair, just and equitable solely of severance damages paid to both Lessee and Lessor, taking into consideration, among other relevant factorsLandlord from the condemnation Award, the number Building to a completed architectural unit, and any amount not so funded by Landlord shall be borne by Tenant. In the event of usable roomsa Partial Taking of the Expansion Project, or applicable portion thereof, Tenant shall have no right to terminate this Lease and there shall be no reduction or abatement of the amount Monthly Installment of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionrent.
Appears in 1 contract
Sources: Sublease (New Focus Inc)
Partial Taking. If title to less than the whole a substantial portion of the Leased Premises or less than a substantial portion of the Building or Real Property is condemnedtaken for any public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain or by purchase in lieu thereof, and such taking would not prevent or materially interfere with the use of the Leased Premises or the Building or Real Property is not Unsuitable for its Primary Intended Use, and not Uneconomic the purpose for its Primary Intended Usewhich it was then being used, or if Lessee all or Lessor a substantial portion of the Leased Premises or all or a substantial portion of the Building or Real Property is entitled but neither elects taken as set forth in Section 8.01 above and this Lease is not terminated as provided in Section 8.01 above, Landlord shall, at Landlord’s sole risk and expense, restore and reconstruct the Building, the Real Property, Leased Premises and Tenant Improvements to the extent necessary to make it reasonably tenantable, provided, if the damages received by Landlord are insufficient to cover the costs of restoration, Landlord or Tenant may terminate this Lease. In the event that Landlord or Tenant does not terminate this Lease as provided in Section 15.3the forgoing sentence and Landlord fails to complete the necessary repairs or rebuilding within one hundred eighty (180) days from the date of the taking, Lessee Tenant may, at its cost and in accordance with the terms of option, terminate this Lease by delivering written notice of termination to Landlord and any Construction Services Agreement entered into in connection herewithall further rights and obligations of the parties under this Lease (including, shall with without limitation, all reasonable dispatch, but only obligations to pay Rent for the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken unexpired portion of any Improvements so that such Improvements constitute a complete architectural unit the Term) shall terminate effective as of the same general character date of the written notification. Landlord shall have no obligation to restore any Tenant Alterations. The Base Rent and condition (Additional Rent payable under this Lease during the period for which the Leased Premises, or portions thereof, are untenantable will be adjusted to such an extent as nearly as may be possible is fair and reasonable under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Partial Taking. If title to less than the whole of the Leased Property is condemneda Partial Taking occurs, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease shall not terminate or be affected in any way, except as provided in this Section 15.324(b). This Lease shall remain in full force and effect as to the remaining portion of the Project Area. If a Partial Taking occurs that involves the NCMC Hospital Property, Lessee Tenant will, at its sole cost and expense, Restore the Improvements as nearly as practicable to the condition, quality and class they were in immediately before such Partial Taking, or with such Alterations as the Tenant shall elect to make in conformity with the provisions of Section 15 hereof. Such Restoration shall be commenced promptly and prosecuted with reasonable diligence. Net Condemnation Proceeds following a Partial Condemnation of the NCMC Hospital Property shall be delivered to the Condemnation Trustee who shall be selected in accordance with Section 24(a) and the Net Condemnation Proceeds shall first be made available by the Condemnation Trustee to pay the costs to Restore the NCMC Hospital Property so taken, except if this Lease is subject to a Leasehold Mortgage insured, reinsured or held by the Federal Housing Commissioner or the premises leased under this Lease are given to the Federal Housing Commissioner in connection with a resale or the premises leased under this Lease are acquired and held by the Federal Housing Commissioner because of a default under such Leasehold Mortgage, then the application of the Comdemnation Proceeds shall be subject to a finding by the Federal Housing Comnmissioner, that such application is feasible or subject to such other FHA rules as may be applicable with respect to the application of Condemnation Proceeds. Following Restoration, the Condemnation Trustee shall distribute any excess Net Condemnation Proceeds resulting from a Partial Taking of the NCMC Hospital Property first to the NCMC Hospital Leasehold Mortgagee in the order of priority of the Liens held by the NCMC Hospital Mortgagee to the extent required by the NCMC Hospital Leasehold Mortgage and then to Tenant. If the Partial Taking involves a Parcel other than the NCMC Hospital Property, the Lien of the NCMC Hospital Leasehold Mortgage shall not extend to such Condemnation Proceeds, neither Tenant nor the NCMC Hospital Leasehold Mortgagee shall be entitled to receive any portion of the Condemnation Proceeds and all of the Condemnation Proceeds shall be applied in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded Basic Sublease for the Improvements; provided, however, the amount Parcel which is subject of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Sources: Lease Agreement
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstancesa) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that which does not result in a termination of this LeaseLease pursuant to Sections 16.1 or 16.3, this Lease shall terminate and expire with respect only to the portion of the Demised Premises so taken, on and as of the date of taking. In all other respects this Lease shall remain in full force and effect except that Tenant shall be entitled, after such date, to a reduction in the Minimum Rent in the proportion which the area of the Demised Premises so taken bears to the total area of the Demised Premises at the time of such Taking.
(b) The award or awards paid as a result of such Taking shall be divided and distributed in the following order of priority:
(i) Landlord and Tenant shall be entitled to all expenses incurred by them in connection with such Taking, including, without limitation, reasonable attorneys' fees and expenses; and
(ii) If the remainder of the proceeds without interest shall be in an amount of $10,000,000.00 or less, such proceeds shall be paid to Tenant, in trust, for application by Tenant to the Restoration of the Improvements, or, if the proceeds are in an amount in excess of $10,000,000.00, the Base Rent entire proceeds shall be abated in paid to and deposited with Landlord. If Landlord shall receive proceeds, it shall upon the manner and request of Tenant deliver to Tenant a certificate stating that such proceeds have been deposited with Landlord pursuant to the extent that is fairrequirements of this Lease.
(c) Tenant, just at its sole cost and equitable to both Lessee expense and Lessorwhether or not the proceeds shall be sufficient for the purpose, taking into considerationshall proceed, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty forty (3040) days after such Taking, with diligence and continuity, to repair, alter (including any necessary demolition and reconstruction) and restore the remaining part of the Building to substantially its former condition, so as to constitute a complete structure suitable for the purposes the Building is being used for as of the date hereof. All repairs, alterations, restorations or demolition conducted by Tenant as a result of a partial Taking, including temporary repairs for the matter protection of the Improvements or other property pending the completion thereof, are referred to in this Lease as the "Partial Restoration".
(d) The conditions under which the Partial Restoration is to be performed and the method of proceeding with and performing the same shall be governed by all of the provisions of Article 9; and the cost of the Restoration shall include the reasonable fees of the Construction Manager.
(e) If the proceeds arc deposited with Landlord, Landlord shall hold, apply, make available and pay over to Tenant the proceeds in the same manner as is provided for Landlord with respect to Casualty Proceeds under the provisions of Article 9 (except that no Voluntary Alterations shall be made with such condemnation proceeds) and upon the completion and payment of the cost of the Partial Restoration, the balance of the proceeds held by Landlord may be submitted retained by either party to arbitration under Section 22.2 hereof for resolutionLandlord.
Appears in 1 contract
Sources: Lease Agreement (Credit Suisse First Boston Usa Inc)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section SECTION 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's ’s Notice of termination, a Notice to Lessee of Lessor's ’s unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements terms of any ground or building lease or Mortgage) lender mortgage, shall be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Sources: Lease Agreement (Capital Lodging)
Partial Taking. If title A. In the event of a Substantial Taking pursuant to which this Lease is not terminated pursuant to the provisions of Section 15.05, then, in the event of any condemnation of less than the whole all to substantially all of the Leased Property is condemnedPremises, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects Tenant shall be obligated to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that Premises not taken by the governmental authority to a condition as good as or better than the condition which prevailed thereon and therein prior to such Improvements constitute a complete architectural unit of the same general character and condition (condemnation as nearly as may be possible is practicable under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, that Tenant shall not be obligated to expend any sums in excess of the condemnation proceeds. In the event of an Insubstantial Taking, the Tenant shall not be obligated to replace any landscaping or facilities taken by the governmental authority but shall only be obligated to repair any damage to the Premises not taken by the governmental authority. Materials used in repair and restoration shall be as nearly like or superior in quality to the original materials as may then be reasonably procured in regular channels of supply, and construction shall be completed in a workmanlike manner free of all liens and encumbrances. All condemnation proceeds payable on account of such condemnation other than proceeds attributable to Tenant's personal property shall be paid to the Insurance Trustee who shall hold said proceeds in trust for the parties in accordance with the provisions of this Section 15.06.
B. Tenant shall commence the restoration of the Premises as soon as practicable not later than the date which is one hundred eighty (180) days after the date upon which the condemnation occurred and thereafter prosecute the restoration with diligence and continuity.
C. Prior to commencing any restoration! work, Tenant, at its sole cost shall (i) obtain the services of a licensed architect to prepare any required plans and specifications for such restoration; and (ii) submit a set of final plans and specifications to Landlord and the Senior Mortgagee for approval (which approval may not be unreasonably withheld, conditioned or delayed), and further, with any restoration that will cost more than One Million Dollars ($1,000,000), (iii) the contractor selected by Tenant to perform the work shall be subject to Landlord's approval, which approval shall not be unreasonably withheld, conditioned, or delayed, or (iv) Tenant shall carry builder's risk insurance in amounts reasonably sufficient to cover the cost of replacement of the work during the course of such construction.
D. In proceeding with such restoration work, Tenant shall first expend an amount, if any, equal to the excess of the projected cost of the restoration work over the amount of such contribution will not exceed such costall condemnation proceeds. If the Awards are not adequate Thereafter, Tenant shall be entitled to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice submit to the other; providedInsurance Trustee, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within not more frequently than once every thirty (30) days days, an invoice together with such other documentation (including mechanics lien waivers and title insurance policy endorsements obtained at Tenant's sole cost and expense) as is customarily required by lenders at such time making construction loans. Upon receipt of an invoice in proper form, the Insurance Trustee shall make a disbursement equal to ninety percent (90%) of the amount shown on the invoice, provided, however, that upon final completion of the restoration work, the Insurance Trustee shall disburse to Tenant the final ten percent (10%) due that has been so retained, but only if it has received either final mechanics lien waivers from all parties having rights to mechanics liens against the Premises on account of such restoration work or appropriate endorsements or policies of title insurance protecting Landlord and Mortgagee against mechanics liens arising out of the restoration work. In the event that the amount disbursed in accordance with the previous sentence shall be less than the total condemnation proceeds, such excess shall be distributed to Landlord and Tenant as hereinafter provided in Section 15.06F and Section 15.06G.
E. Any award attributable to personal property owned by Tenant that is not attributable to FF&E shall be paid to Tenant. Any award attributable to FF&E shall be paid to Tenant and applied by Tenant for the purpose of replacing such FF&E in the event and to the extent that the Premises remaining after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation such condemnation requires such replacement FF&E to be responsible for all restoration costs in excess fully operational.
F. In the event of a condemnation that is an Insubstantial Taking, the condemnation proceeds remaining after application thereof to the cost of the Awards. If restoration work shall be paid to Landlord and Tenant in the following proportions: Landlord shall receive that portion of said remaining proceeds equal to a fraction whose numerator is the number of years in the Term of this Lease (including all Effective Extended Terms as of the date Tenant receives notice of such condemnation) that have elapsed as of the effective date of such condemnation and whose denominator is the number of years in the Term of this Lease (including all Effective Extended Terms as of the date Tenant receives notice of such condemnation) and Tenant shall receive the balance of such remaining proceeds. Thus, for examples if such condemnation occurred on the last day of the 21st year of the Term and the only Effective Extended Term was the First Extended Term, Landlord would receive 21/25th of such remaining condemnation proceeds and Tenant would receive 4/25th of such remaining condemnation proceeds.
G. In the event of a condemnation that is a Substantial Taking and in the event that this lease is not terminated and Lessee restores the Hotelpursuant to Section 15.05, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject condemnation proceeds remaining after application thereof to the requirements cost of any ground or building lease or Mortgage) the restoration work shall be held by Lessor allocated between Landlord and paid out by Lessor from time Tenant in proportion to time for the reasonable costs value of their respective interests in the Premises; provided, however, that in no event shall Landlord receive a portion of such restoration upon satisfaction remarketing proceeds that is less than the Leasehold Purchase Price multiplied by the Partial Condemnation Reduction Percentage.
H. In the event of reasonable terms and conditionsa condemnation that is an Insubstantial Taking, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, there shall be retained no reduction in or abatement of the Minimum Rental or Percentage Rental thereafter payable by LessorTenant. In the event of a partial condemnation that is a Substantial Taking and in the event that does this Lease is not result in a termination of this Leaseterminated pursuant to Section 15.05, the Base Rent there shall be abated a reduction in the manner Minimum Rental payable by Tenant effective as of the date of the Substantial Taking in an amount equal to nine percent (9%) of the lesser of (i) the portion of the condemnation award so distributed to Landlord or (ii) eleven and one tenths (11.1) multiplied by the annual Minimum Rental multiplied by the Partial Condemnation Reduction Percentage and there shall be a reduction in the Alternative Rental or Expansion Rental (if then applicable) in an amount equal to the extent Alternative Rental or Expansion Rental payable immediately prior to such condemnation multiplied by the Partial Condemnation Reduction Percentage.
I. In the event that is fairTenant shall fail to prosecute the restoration work with diligence and continuity until completion, just and equitable regardless of whether an Event of Default has occurred, Landlord shall have the right to both Lessee and Lessor, taking into consideration, among other relevant factors, the number use any proceeds held by Insurance Trustee to complete such restoration work. Tenant shall be liable for any sums incurred by Landlord to complete such restoration work in excess of usable rooms, the amount held and disbursed by the Insurance Trustee.
J. In the event that an Event of square footageDefault has occurred Tenant shall not have access to any condemnation proceeds unless and until Tenant shall have cured such Event of Default, and until such time, Tenant shall use its own funds to prosecute the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Takingrestoration work. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.END OF ARTICLE 15
Appears in 1 contract
Partial Taking. (a) If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Use or Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section 15.3, then Lessor or, at Lessor's election, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewithshall, shall with all reasonable dispatch, but only dispatch and to the extent that the Holder permits the application of any the Award funds made available to Lessee therefor and any other sums advanced by Lessor pursuant to this Sectionthe Award is sufficient therefor, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. In the event that Lessor elects to have Lessee restore the Facility, then Lessor shall pay to Lessee a construction fee equal to four percent (4%) of the total hard cost construction budget for such restoration as compensation for such services, which fee shall be payable to Lessee at such time as the Facility is reopened to the public. In the event that such fee is not paid to Lessee at that time, then Lessee shall have the right to setoff such fee from the next installment(s) of Rent due under this Lease, and subsequent installments, if necessary, until such fee is paid in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elementsfull. Lessor will and Lessee shall each contribute to the cost of restoration that part of its Award specifically allocated to such restoration, if any, together with severance and other damages awarded for the taken Leased Improvements; provided, however, that the amount of such contribution will shall not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty .
(30b) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that as described in Section 15.5(a), which does not result in a termination of this LeaseLease by Lessor, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, or the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) 30 days after such partial Taking, the matter may shall be submitted by either party to arbitration under Arbitration as provided for in Section 22.2 hereof for resolution40.2 hereof.
Appears in 1 contract
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel to that conditionFacility as aforesaid, each of the Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases for Other Properties then in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however thathowever, that if such termination is by Lessee, Lessor shall have the right, in its Lessor's sole discretion, to nullify the termination and keep this Lease in full force and effect by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated Lessor shall in good faith seek a fair and Lessee restores the Hotelequitable allocation of any Award among restoration, the Award funds, taken Leasehold Improvements and any other sums made available by elements. Lessor as aforesaid, shall (subject contribute to the requirements cost of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time restoration that part of its Award specifically allocated to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, together with severance and reimbursement other damages awarded for the taken Leased Improvements; provided, however, that the amount of Lessor for any sums advanced by Lessor hereunder, such contribution shall be retained by Lessornot exceed such cost. In the event of a partial Taking that does taking after which this Lease shall not result in a termination of this Leasebe terminated, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, or the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Takingtaking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Takingtaking, the matter may be submitted by either party to arbitration under in accordance with Section 22.2 hereof 40.1 below for resolution.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Prime Hospitality Corp)
Partial Taking. If title to less than the whole there is a Taking of a portion of the Leased Property is condemnedby Condemnation, and this Lease shall remain in effect if the Leased Property Facility is not thereby rendered Unsuitable for its Primary Intended Use. If, and not Uneconomic however, such Taking substantially impairs Lessee's ability to use the Facility for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects shall have the option (a) to terminate this Lease as provided in Section 15.3restore the Facility, Lessee at its cost own expense, to the extent possible, to substantially the same condition as existed immediately before the partial Taking, or (b) so long as Lessee is not in default of any kind, and in accordance no event has occurred which with the giving of notice or the passage of time or both would constitute such a default, under the terms of this Lease, the Other Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only the Tenant Leases to acquire the Leased Property from Lessor for a purchase price equal to the extent Fair Market Value Purchase Price of any Award funds made available the Leased Property immediately prior to such partial Taking, in which event this Lease shall terminate upon payment of the purchase price. Lessee and any other sums advanced shall exercise its option by giving Lessor notice thereof within sixty (60) days after Lessee receives notice of the Taking. In the event Lessee exercises the option to purchase the Leased Property pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, howeverSection 15.4, the amount of such contribution will not exceed such cost. If terms set forth in Article XVIII shall apply and the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, sale/purchase must be closed within thirty (30) days after the date of the written notice from Lessee to Lessor of Lessee's Notice of terminationintent to purchase, unless a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs different closing date is agreed upon in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held writing by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorLessee. In the event of a partial Taking that So long as Lessee does not result exercise its option to purchase as set forth in a termination this Section 15.4, if the Facility cannot be returned to substantially the level of this Lease, the Base Rent shall be abated in the manner and service existing prior to the extent that is fair, just and equitable to both Lessee and Lessor, any partial taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial from the Date of Taking, the matter may Base Rent due hereunder, to the extent not covered by an Award paid to Lessor, shall be submitted by either party suspended until such time as the Facility is returned to arbitration under Section 22.2 hereof substantially the level of service existing prior to such Taking; provided, however, such suspension shall not continue for resolutiona period longer than sixty (60) days from the Date of Taking.
Appears in 1 contract
Partial Taking. Upon the occurrence of any Partial Taking, this Lease shall continue in full effect without abatement or reduction of Basic Rent, Additional Rent or other sums payable by Tenant. In the event Landlord receives a Net Award in connection with any such Partial Taking, Landlord shall make the Net Award available to Tenant to make any repairs required by Section 5.4 hereof so that, thereafter, the Premises shall be, as nearly as possible, in a condition as good as the condition thereof immediately prior to such Partial Taking, but, if such Net Award shall be in excess of One Hundred Thousand Dollars ($100,000), only if there is no default or Event of Default and Tenant delivers to Landlord of (i) certificates of Tenant identifying the repair work for which Tenant is requesting payment and the cost incurred by Tenant in connection therewith and stating that Tenant has not theretofore received payment for such work; and (ii) appropriate lien waivers. Any Net Award remaining after such repairs have been made shall be delivered to Tenant; but only to the extent that the aggregate amount of such Net Award so remaining and all amounts theretofore paid to Tenant pursuant to this sentence do not exceed One Hundred Thousand Dollars ($100,000). If title to less than such amounts exceed One Hundred Thousand Dollars ($100,000), the whole excess may, at Lender's direction and with Lender's written consent at its sole option, be applied in reduction of the Leased Property is condemnedoutstanding principal amount of the Note, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such costLoan Documents. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice excess is applied to the other; provided, however that, if such termination is by Lessee, Lessor shall have remaining principal outstanding under the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the HotelNote, the Award funds, Note shall be reamortized and any other sums made available by Lessor as aforesaid, monthly payment of Basic Rent payable on or after the second Basic Rent Payment Date occurring after such application shall (subject be reduced in an amount equal to the requirements of any ground or building lease or Mortgage) be held amount by Lessor and paid out by Lessor from time to time for which the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In monthly payment under the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionNote has been reduced.
Appears in 1 contract
Partial Taking. If title to less than In the whole event that only a part of the Leased Property Demised Premises shall be condemned or taken, then, effective as of the date of vesting of title, the Base Rent and Additional Rent shall be abated in an amount thereof apportioned according to the area of the Demised Premises so condemned or taken. In the event that only a part of the Building shall be so condemned or taken, whether or not the Demised Premises is condemnedaffected, and the Leased Property is not Unsuitable for its Primary Intended Usethen (a) Landlord may, and not Uneconomic for its Primary Intended Useat Landlord's option, or if Lessee or Lessor is entitled but neither elects to terminate this Lease Term as provided of the date of such vesting of title by notifying Tenant in Section 15.3writing of such termination within sixty (60) days following the date on which Landlord shall have received notice of vesting of title, Lessee or (b) if such condemnation or taking shall be of a substantial part of the Demised Premises or of a substantial part of the means of access thereto, [or restoration will not be completed within ninety (90) days Tenant may, at its cost and Tenant's option, by delivery of notice in accordance with writing to Landlord within sixty (60) days following the terms date on which Tenant shall have received notice of vesting of title, terminate this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit Term as of the same general character and condition date of vesting of title, or (as nearly as may be possible under the circumstancesc) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right if neither Landlord nor Tenant elects to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, this Lease shall (subject be and remain unaffected by such condemnation or taking, except that the Base Rent payable under Article l and Additional Rent payable under Article 3 shall be abated to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessorextent hereinbefore provided in this Article l 5. In the event that only a part of a partial Taking that does not result in a termination of this Lease, the Base Rent Demised Premises shall be abated in the manner so condemned or taken and this Lease Term and estate hereby granted with respect to the extent that is fairremaining portion of the Demised Premises are not terminated as hereinbefore provided, just Landlord will, with reasonable diligence and equitable at Landlord's expense, restore the remaining portion of the Demised Premises, as nearly as practicable, to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by same condition as it was in prior to such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutioncondemnation or taking.
Appears in 1 contract
Sources: Lease Agreement (Bion Environmental Technologies Inc)
Partial Taking. If title to the fee of less than the whole of the Leased Property is Premises shall be so taken or condemned, and which nevertheless renders the Leased Property is not Premises Unsuitable for its Its Primary Intended Use, Tenant and not Uneconomic for its Primary Intended UseLandlord shall each have the option, exercisable by written notice to the other, at any time within thirty (30) days after the taking of possession by, or if Lessee or Lessor is entitled but neither elects the date of vesting of title in, such Condemnor, whichever first occurs, to terminate this Lease as provided in Section 15.3of the Taking. Upon such date so determined, Lessee if such notice has been given, this Lease shall thereupon cease and terminate as to such Leased Premises. All Rent and other charges paid or payable by Tenant hereunder shall be apportioned as of the date the Lease shall have been so terminated. If there is a Taking of a portion of the Leased Premises by Condemnation such that the Leased Premises is not thereby rendered Unsuitable for Its Primary Intended Use, the Landlord at its cost and in accordance with the terms of sole discretion may (a) terminate this Lease, or (b) have this Lease remain in effect and any Construction Services Agreement entered into in connection herewith, Landlord shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements the Building Shell in which the Leased Premises are located so that such Improvements Leased Premises shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements Leased Premises existing immediately prior to such Condemnation or Taking. Landlord shall commence the Condemnationrestoration process for the Leased Premises within ninety (90) days of the partial Taking, if the necessary funds have been received by the Landlord, and shall diligently prosecute the restoration to completion. Lessor shall in good faith seek a fair and equitable allocation of Tenant may elect, at any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated time subsequent to such restorationCondemnation or Taking, together with severance upon Landlord’s prior written consent which shall not be unreasonably withheld, to commence such restoration at Tenant’s own expense, and other damages awarded for shall diligently prosecute the Improvements; provided, however, the amount of such contribution will not exceed such costsame to completion. If Tenant elects to undertake the Awards are not adequate to restoration of the Leased Premises so Condemned or Taken, it shall restore the Hotel untaken portion of the Building Shell in which the Leased Premises are located so that such Leased Premises shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Premises existing immediately prior to that condition, each of Lessor and Lessee such Condemnation or Taking. Tenant shall have the right to terminate this Leasebe reimbursed from the proceeds for such Condemnation or Taking, without in any way affecting any of the Other Leases in effect, by giving Notice for its external expenses related to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Partial Taking. If title to less than (a) Tenant may, at its election, terminate this Lease upon the whole occurrence of any condemnation, or conveyance in lieu of condemnation, which affects:
(i) Twenty percent (20%) or more of the Leased Property is condemnedfloor area of the Premises;
(ii) Twenty percent (20%) or more of the parking areas of the Real Estate shown on EXHIBIT "B" attached hereto; or
(iii) Any portion of the Premises whose condemnation would materially affect ingress to and egress from the Premises, unless Landlord provides satisfactory substitute points of ingress and egress to and from the Leased Property is Premises. Tenant shall give Landlord notice of Tenant's election within thirty (30) days after Tenant; shall receive notice of such pending condemnation. If Tenant fails to give Landlord such written notice within such thirty (30) day period, Tenant shall be conclusively deemed to have elected not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms Lease. Notwithstanding any termination of this Lease and any Construction Services Agreement entered into in connection herewithby Tenant hereunder, shall with all reasonable dispatchTenant, but only at its election, may continue to occupy the Premises, subject to the extent terms and provisions of this Lease, for all or such part, as Tenant may determine, of the period between the date of such taking and the date when possession of the Premises shall be taken by the appropriate authority.
(b) Notwithstanding anything to the contrary set forth herein, if any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that the Premises is condemned or conveyed in lieu of such Improvements constitute a complete architectural unit condemnation during the last two (2) years of the same general character and condition term hereof, then either Tenant or Landlord may terminate this Lease upon thirty (as nearly as may be possible under the circumstances30) as the Improvements existing immediately prior days written notice to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvementsparty; provided, however, the amount that any such notice of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditiontermination by Landlord shall be ineffective, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease shall remain in full force by providingand effect, if Tenant, within thirty (30) days after Lessee's Notice receipt of terminationsuch notice from Landlord, a Notice shall give notice to Lessee Landlord of Lessor's unconditional, legally binding obligation its intention to be responsible extend the term of this Lease for all restoration costs in excess of the Awardsoptions periods in accordance with ARTICLE III above. If Tenant gives Landlord such notice of such renewal, Landlord shall repair and/or restore the Premises in accordance with the terms and conditions of this ARTICLE XVI, to the extent practicable. Notwithstanding any termination of this Lease is not terminated pursuant to the terms and Lessee restores conditions of this Section 16.2(b), Tenant, at its election, may continue to occupy the HotelPremises, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination conditions of this Lease, for the Base Rent period between the date of such taking and the date when possession of the property to be condemned shall be abated in taken by the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionappropriate authority.
Appears in 1 contract
Sources: Lease (Rainbow Rentals Inc)
Partial Taking. If title to less than the whole If, after a taking, enough of the Leased Property is condemnedDemised -------------- Premises remains that can be used for substantially the same purposes for which they were used immediately before the taking, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate as reasonably determined by Tenant:
(1) this Lease will end on the ending date as provided to the part of the Demised Premises which is taken;
(2) beginning on the day after the ending date, Base Rent for so much of the Demised Premises as remains will be reduced in Section 15.3the proportion of the rentable area of the Demised Premises remaining after the taking to the rentable area of the Demised Premises before the taking (both determined according to BOMA Standards as defined on Exhibit "C" hereto) and any prepaid rent will be ----------- appropriately prorated;
(3) Landlord shall, Lessee at its sole cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionexpense, restore the untaken portion of Demised Premises as speedily as practical but in any Improvements so that such Improvements constitute a complete architectural unit of event within two hundred seventy (270) days after the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvementstaking; provided, however, Landlord's obligation shall be limited to the amount work and improvements which were originally performed or installed at Landlord's expense as described in Exhibit "C" attached hereto (if ----------- the cost of performing such repairs exceeds the actual condemnation proceeds paid or payable to Landlord on account of such contribution will not exceed Taking, Landlord may terminate this Lease unless Tenant, within forty five (45) days after demand therefor, deposits with Landlord a sum of money sufficient to pay the difference between the cost of repair and the condemnation proceeds available to Landlord for such costpurpose). If Landlord, subject to Force Majeure and subject to delays caused by Tenant, does not restore the Awards Demised Premises as required in this Paragraph 20(b)(3) within the time period herein set forth, Tenant may terminate this Lease at any time thereafter [and rent shall be abated as of the date of termination (and as of the date of the taking with respect to the affected portion)], prior to the date such restoration is substantially completed, provided (i) Tenant gives Landlord written notice of such termination after the date Landlord was required to have completed such restoration and prior to the date such restoration is substantially completed, and (ii) Landlord does not complete the restoration within thirty (30) days after Tenant's notice subject to Force Majeure and subject to delays caused by Tenant.
(4) Landlord will keep the balance of the award remaining after payment of the costs and expenses of Landlord's restoration pursuant to Paragraph 20(b)(3). In addition, if more than twenty-five percent (25%) of the parking spaces on the Demised Premises are subject to a taking and all such taken parking spaces are not adequate permanently replaced by Landlord with reasonably comparable spaces on or adjacent to restore the Hotel Project within two hundred seventy (270) days from the date of the taking, or if a taking of a portion of the Demised Premises results in access to that conditionthe Demised Premises being materially adversely affected and the Demised Premises cannot be restored, each within two hundred seventy (270) days from the date of Lessor and Lessee the taking, to a condition where access to the Demised Premises is not materially adversely affected, Tenant shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee Tenant or Lessor Landlord is entitled but neither elects not to terminate this Lease as provided in Section 15.3, Lessee Tenant at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatchdispatch , but only to the extent of any Award funds condemnation awards made available to Lessee Tenant and any other sums advanced by Lessor Landlord pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor Landlord and Lessee Tenant shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Landlord and Tenant, by giving Notice to the other; provided, however that, if such termination is by LesseeTenant, Lessor Landlord shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Tenant’s Notice of termination, a Notice to Lessee Tenant of Lessor's Landlord’s unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee Tenant restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor Landlord as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor Landlord and paid out by Lessor Landlord from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Landlord unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Landlord and Tenant in proportion to the manner then fair market values of the respective estates and interests of Landlord and Tenant in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Sources: Lease Agreement (American Realty Capital Hospitality Trust, Inc.)
Partial Taking. If title to less than (a) In the whole event that any part of the Leased Property is condemnedLeaseback Space shall be so condemned or taken, then this Sublease shall be and remain unaffected by such condemnation or taking, except that the Leased Property is Minimum Rent and Additional Rent allocable to the part so taken shall be apportioned (on a per square foot basis) as of the date of taking, provided, however, that (a) Subtenant may elect to cancel this Sublease (i) in the event the area of the Leaseback Space remaining following the condemnation or taking shall not Unsuitable for be sufficient, in the reasonable judgment of Subtenant, to enable Subtenant to continue the operation of its Primary Intended Use, and not Uneconomic for its Primary Intended Usebusiness therein in substantially the manner in which such business was being conducted immediately prior to such taking, or (ii) if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with such taking materially adversely impairs the terms means of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only access to the extent Leaseback Space or the entrances or lobby of the Tower or Building. Upon such partial taking and this Sublease continuing in force as to any Award funds made available part of the Leaseback Space not so taken, the Minimum Rent and Additional Rent shall be adjusted proportionately. If as a result of the partial taking (and this Sublease continuing in force as to Lessee and any other sums advanced by Lessor pursuant the part of the Leaseback Space not so taken) such part is damaged, Sublandlord agrees to this Section, promptly restore the untaken damaged portion of any Improvements so that such Improvements constitute a complete architectural unit of remaining after the same general character and taking, to the condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty taking.
(30b) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that which does not result in a termination of this LeaseSublease pursuant to this Section 16.02, this Sublease shall terminate and expire with respect only to the Base Rent portion of the Leaseback Space so taken, on and as of the date of taking. In all other respects this Sublease shall remain in full force and effect except that Subtenant shall be abated entitled, after such date, to a reduction in the manner Minimum Rent and Additional Rent in the proportion which the area of the Leaseback Space so taken bears to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, total area of the number Leaseback Space at the time of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes Taking.
(c) Nothing hereinabove provided shall (in the Hotelevent the Sublease is terminated as above provided) preclude Subtenant from appearing, claiming, proving and receiving in the condemnation proceeding, Subtenant's projected net operating income following moving expenses, and the value of Subtenant's personal property. In the event that Subtenant is not permitted to make a separate claim for such partial Taking. If Lessor items in such proceeding, Sublandlord shall prosecute all claims in such proceeding on behalf of both Sublandlord and Lessee are unable to agree upon Subtenant, in which event Subtenant may, if it so elects and at its expense, join with Sublandlord in such proceeding, retain co-counsel, attend hearings, present arguments and generally participate in the amount conduct of the proceeding; provided, however, that, if Sublandlord incurs any additional expense because of Subtenant's exercising its fights under this sentence, Subtenant will bear such abatement additional expense.
(d) Sublandlord, at its sole cost and expense and whether or not the proceeds shall be sufficient for the purpose, shall proceed, within thirty forty (3040) days after such Taking, with diligence and continuity, to repair, alter (including any necessary demolition and reconstruction) and restore the remaining part of the Leaseback Space to substantially their former condition, so as to constitute a complete structure suitable for the purposes the Leaseback Space are being used for as of the date hereof. All repairs, alterations, restorations or demolition conducted by Sublandlord as a result of a partial Taking, including temporary repairs for the matter may protection of the Improvements or other property pending the completion thereof, are referred to in this Article as the "Partial Restoration."
(e) The conditions under which the Partial Restoration is to be submitted performed and the method of proceeding with and performing the same shall be governed by either party to arbitration under Section 22.2 hereof for resolutionall of the provisions of Article 9 of the ▇▇▇▇▇▇▇▇▇; and the cost of the Partial Restoration shall include the reasonable fees of the Construction Manager.
Appears in 1 contract
Partial Taking. If title to less than a Partial Taking occurs, then the whole Term shall not be reduced or affected in any way, this Lease shall remain in full force and effect for the portion of the Leased Property is condemnedremaining after such Taking and the Tenant's obligation to pay Rent shall continue without abatement or diminution. All sums, including damages and interest constituting the Condemnation Award shall be deposited promptly with a Depositary, and shall be distributed and disbursed in the Leased following amounts and in the following order of priority:
(a) First, to be used for restoration of the Land and Improvements to an economically feasible state, in the good faith judgment of Tenant; and
(b) The balance, pro rata between Landlord and Tenant (or Leasehold Mortgagee) in accordance with (i) as to Landlord, the value of Landlord’s fee simple title in the portion of the Property is so taken, taking into account the effect on such value of this Lease and all other matters affecting such interest (had the Taking not Unsuitable for its Primary Intended Useoccurred), and not Uneconomic for (ii) as to Tenant (or Leasehold Mortgagee), the value of the Leasehold and Improvements to Tenant considering the number of years left in the Term. Tenant, at its Primary Intended Usesole cost and expense, shall commence and thereafter proceed to repair, alter, raze or restore the remaining part of the Land, or if Lessee or Lessor is entitled but neither elects otherwise to terminate this Lease as provided secure the Improvements and render the Improvements safe (the "Work"), all in Section 15.3, Lessee at its cost Tenant's reasonable discretion and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such costArticle IX above. If the Awards are not adequate Condemnation Award received by Tenant is insufficient to restore pay the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any entire cost of the Other Leases in effectwork, then Tenant shall pay the full amount of any such deficiency. If the Condemnation Award received by giving Notice Tenant shall exceed the entire cost of the Work, then Tenant shall assign its interest and any such excess portion of the Condemnation Award to the other; provided, however thatDepositary if any and, if none, may use such termination is by Lessee, Lessor shall have the rightexcess for such purposes as Tenant, in its sole discretion, deems appropriate. Under no circumstances shall Landlord be obligated to nullify the termination and keep this Lease in full force by providingmake any payment, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess disbursement or contribution towards or on account of the Awards. If this Lease is not terminated and Lessee restores cost of the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionWork.
Appears in 1 contract
Sources: Ground Lease
Partial Taking. If title to less than the whole part of the Leased Property Building or the Premises is condemnedtaken by Eminent Domain (but not substantially all of the Premises), this Lease shall be unaffected by such taking, except that: (a) if more than twenty-five percent (25%) of the Rentable Area of the Building shall be taken, whether or not any portion of the Premises shall be affected thereby, or if so much of the Building shall be taken that Landlord determines that the Building cannot be restored, reconstructed or replaced in a suitable manner so that the Building may continue to be used for the purposes intended or that it would be economically or operationally impractical to operate the portion of the Building remaining after the taking, Landlord may, at its option, terminate this Lease by giving Tenant notice to that effect within one hundred twenty (120) days after the Date of the Taking; and (b) if thirty percent (30%) or more of the Rentable Area of the Premises shall be so taken and the remaining Rentable Area shall not, in the reasonable option of Tenant, be sufficient for Tenant to continue the operation of its business at the Premises, Tenant may, at its option, terminate this Lease by giving Landlord notice to that effect within ninety (90) days after the Date of the Taking. This Lease shall terminate on the thirtieth (30th) day after the date that any such termination notice is given, and the Leased Property is not Unsuitable for its Primary Intended UseRents shall be prorated and adjusted as of such termination date. Upon a partial taking, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate where this Lease continues in force as provided in Section 15.3to any part of the Premises, Lessee at its cost and in accordance with (i) the terms Base Rent shall be reduced by the percentage that the Rentable Area of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only the portion of the Premises taken bears to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit Rentable Area of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately Premises prior to the Condemnation. Lessor taking, and Tenant's Share shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute be reduced to the cost percentage that the Rentable Area of restoration that part the portion of its Award specifically allocated the Premises left to such restorationTenant bears to the Rentable Area of the Building after the taking and (ii) Landlord shall repair or restore the remaining portions of the Premises or the Building, together as the case may be, with severance and other damages awarded for reasonable dispatch after collection of substantially all of the Improvementsaward attributable to the taking by Eminent Domain; provided, however, the amount of that Landlord shall not be required to expend on such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all repair or restoration costs amounts in excess of the Awards. If this Lease is not terminated and Lessee restores total awards (net of the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction collection) collected by it on account of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutiontaking.
Appears in 1 contract
Partial Taking. If title to less than the whole only part of the Leased Property Parking Area is condemnedpermanently taken (i.e. for a period greater than nine (9) months) by Eminent Domain, this Lease shall be unaffected by such taking, except that (a) Tenant shall be entitled to a proportionate adjustment in the Rents (including Tenant's Share), and (b) if one hundred (100) or more spaces are permanently taken, Tenant may terminate this Lease as of the Date of Taking by giving Landlord notice to that effect within 90 days following the date on which Landlord delivers to Tenant a copy of the official notice of such Taking unless Landlord offers to provide replacement parking on the Mall Lot within ninety (90) days of the Date of Taking or valet parking on the terms set forth in Section 25.9 hereof with respect to the taken spaces. This Lease shall terminate as of the date that such termination notice from Tenant is given, and the Leased Property is Rents shall be prorated and adjusted as of such termination date. If Tenant does terminate this Lease due to such condemnation, Tenant shall be entitled to claim an award or payment in connection with the taking in accordance with Section 14.3 hereof. If Tenant does not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided above, Tenant shall be entitled to claim an award or payment in Section 15.3, Lessee at its cost and in accordance connection with any permanent taking of the terms Parking Area or any part thereof from the condemning authority expressly granted for the taking of such Parking Area or portion thereof related to Tenant's right to use the Parking Area for the remaining term of this Lease Lease, interruption of Tenant's business or Tenant's moving expenses. If ▇▇▇▇▇▇ intervenes in a condemnation proceeding in which Landlord is a party, Landlord and any Construction Services Agreement entered into in connection herewith, ▇▇▇▇▇▇▇▇'s counsel shall with all reasonable dispatch, but only to manage and control the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded proceeding for the Improvements; claimants, provided, however, the amount of Tenant may manage and control its own claim and litigation so long as such contribution action will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases materially diminish, interfere with or otherwise affect Landlord's claims or proceedings. Attorneys' fees and costs incurred by Landlord in effect, by giving Notice connection with Eminent Domain proceedings shall not be charged to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and Tenant except to the extent that is fair, just and equitable related to both Lessee and Lessor, taking into consideration, among other relevant factors, the number pursuing a claim or obtaining recovery on behalf of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the HotelTenant at Tenant's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionrequest.
Appears in 1 contract
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstancesa) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that which does not result in a termination of this LeaseLease pursuant to Sections 16.1 or 16.3, this Lease shall terminate and expire with respect only to the portion of the Demised Premises so taken, on and as of the date of taking. In all other respects this Lease shall remain in full force and effect except that Tenant shall be entitled, after such date, to a reduction in the Minimum Rent in the proportion which the area of the Demised Premises so taken bears to the total area of the Demised Premises at the time of such Taking.
(b) The award or awards paid as a result of such Taking shall be divided and distributed in the following order of priority:
(i) Landlord and Tenant shall be entitled to all expenses incurred by them in connection with such Taking, including, without limitation, reasonable attorneys' fees and expenses; and
(ii) If the remainder of the proceeds without interest shall be in an amount of $10,000,000.00 or less, such proceeds shall be paid to Tenant, in trust, for application by Tenant to the Restoration of the Improvements, or, if the proceeds are in an amount in excess of $10,000,000.00, the Base Rent entire proceeds shall be abated in paid to and deposited with Landlord. If Landlord shall receive proceeds, it shall upon the manner and request of Tenant deliver to Tenant a certificate stating that such proceeds have been deposited with Landlord pursuant to the extent that is fairrequirements of this Lease.
(c) Tenant, just at its sole cost and equitable to both Lessee expense and Lessorwhether or not the proceeds shall be sufficient for the purpose, taking into considerationshall proceed, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty forty (3040) days after such Taking, with diligence and continuity, to repair, alter (including any necessary demolition and reconstruction) and restore the remaining part of the Demised Premises to substantially their former condition, so as to constitute a complete structure suitable for the purposes the Demised Premises are being used for as of the date hereof. All repairs, alterations, restorations or demolition conducted by Tenant as a result of a partial Taking, including temporary repairs for the matter protection of the Improvements or other property pending the completion thereof, are referred to in this Lease as the "Partial Restoration".
(d) The conditions under which the Partial Restoration is to be performed and the method of proceeding with and performing the same shall be governed by all of the provisions of Article 9; and the cost of the Restoration shall include the reasonable fees of the Construction Manager.
(e) If the proceeds are deposited with Landlord, Landlord shall hold, apply, make available and pay over to Tenant the proceeds in the same manner as is provided for Landlord with respect to Casualty Proceeds under the provisions of Article 9 (except that no Voluntary Alterations shall be made with such condemnation proceeds) and upon the completion and payment of the cost of the Partial Restoration, the balance of the proceeds held by Landlord may be submitted retained by either party to arbitration under Section 22.2 hereof for resolutionLandlord.
Appears in 1 contract
Partial Taking. If title to less than the whole a portion of the Leased Property is condemnedleased premises shall be taken for any public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain or by purchase in lieu thereof, and the Leased Property this Lease is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease terminated as provided in Section 15.3section 8.1 above, Lessee at its cost Lessor shall restore and in accordance with reconstruct the terms of building and other improvements on the leased premises to the extent necessary to make it reasonably tenantable. The rent payable under this Lease during the unexpired portion of the term shall be adjusted to such an extent as may be fair and any Construction Services Agreement entered into reasonable under the circumstances. Lessee shall have no claim to the condemnation award or proceeds in connection herewithlieu thereof. Notwithstanding anything set forth herein to the contrary, Lessor's obligation to restore and/or reconstruct the building and other improvements under this section 8.02 shall with all reasonable dispatchbe limited to the extent, but and only to the extent of any Award funds made available to Lessee and any other sums advanced extent, that condemnation proceeds are actually received by Lessor pursuant in connection with any such taking after payment of all of Lessor's reasonable costs and expenses in obtaining such condemnation proceeds. In the event that Lessor fails to this Section, restore or reconstruct the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements building and other elements. Lessor will contribute to improvements on the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for leased premises within one hundred twenty (120) working days from the Improvements; provided, however, the amount date of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditiontaking, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any Lease by delivering written notice of the Other Leases in effect, by giving Notice such termination to Lessor. Notwithstanding anything to the other; providedcontrary contained hereinabove, however that, if such termination is by Lessee, Lessor Lessee shall have the rightright to recover from the condemning authority, in its sole discretionbut not Lessor, any compensation as may be separately awarded to nullify the termination Lessee on account of moving and keep this Lease in full force by providing, within thirty (30) days after relocation expenses and depreciation to and removal of Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for physical property and all restoration costs other interest and property (but expressly excluding any improvements constructed and installed in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, leased premises and any other sums made available by Lessor as aforesaid, shall (subject to property which would otherwise be or become the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement property of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In upon the event of a partial Taking that does not result in a termination or expiration of this Lease) for which Lessee is entitled to compensation from such condemning authority under common law or applicable statutes, so long as and conditioned upon any award to Lessee not having the Base Rent shall effect of reducing the award which Lessor would otherwise be abated in the manner and entitled to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration receive under Section 22.2 hereof for resolutioncommon law or applicable statutes.
Appears in 1 contract
Partial Taking. If title to less (a) If, during the Lease Term, more than five percent (5%) of the whole floor area of the Building is taken by Condemnation, or the number of full-sized automobile parking spaces within the parking lot of the Leased Property Premises is condemnedreduced by thirty percent (30%) or more as a result of such Condemnation, this Lease shall, at the option of Lessee, cease and terminate as of the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects Date of Taking. Such option to terminate this Lease as provided in Section 15.3, shall be exercisable by Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice written notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) calendar days after Lessee's Notice the Date of terminationTaking, which notice shall provide for a Notice termination date (the "Termination Date") no sooner than the Date of Taking and not later than ninety (90) calendar days after the Date of Taking. In such a case, Lessee shall pay rent up to Lessee of Lessor's unconditional, legally binding obligation the Termination Date and Lessor shall refund any rent payments as shall have been paid in advance which cover a period subsequent to be responsible for all restoration costs in excess the Termination Date.
(b) In the event that any portion of the Awards. If Leased Premises shall be taken by Condemnation, and this Lease is not terminated and Lessee restores thereby, then
(i) the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, Leased Premises shall be retained reduced by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable roomssquare feet taken, and the amount Minimum Monthly Rent shall thereafter be reduced proportionately; and (ii) Lessor shall be entitled to receive the condemnation proceeds attributable to the improvements taken, together with any damages paid by the condemning authority for the cost of square footagerepairs, alterations and reconstruction of the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If remaining improvements.
(c) Nothing herein contained shall prevent Lessor and Lessee are unable from prosecuting claims in any condemnation proceedings for the value of their respective interests. Subject to agree upon the amount provisions of such abatement within thirty Subsection (30) days after such partial Takingb), above, Lessor shall be entitled to the matter may be submitted by either party condemnation award attributable to arbitration under Section 22.2 hereof the real property and Lessee for resolutionthe taking of its Furnishings, Alterations, leasehold estate, loss of business or other award not related to the interests of Lessor.
Appears in 1 contract
Sources: Lease (Fp Bancorp Inc)
Partial Taking. If title to less than the whole a part of the Leased Property is condemnedPremises shall be so taken, then Landlord shall give Tenant prompt written notice thereof and the Leased Property is not Unsuitable for its Primary Intended Usepart so taken shall no longer constitute part of the Premises, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease shall continue in force and effect as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements part not so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvementstaken; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right Tenant may elect to terminate this Lease, without in any way affecting any Lease (a) if a partial taking of the Other Leases Premises occurs and Landlord is not able to provide alternate premises in effect, by giving Notice the Building reasonably acceptable to Tenant for the other; provided, however that, if such termination is by Lessee, Lessor shall have normal conduct of Tenant's business for the rightportion of the Premises taken or if, in the good faith, reasonable judgment of Tenant, the remaining portion of the Premises cannot be economically and practicably used by Tenant for the conduct of its sole discretionbusiness or (b) if a partial taking has a material and adverse effect upon (i) the normal conduct by Tenant of its business in the Premises, or (ii) the parking for Tenant and its visitors and Landlord does not relocate such parking pursuant to nullify the termination and keep Section 6.01(d) of this Lease in full force by providing, within thirty Lease. Tenant shall give notice of any election to terminate to Landlord not later than sixty (3060) days after Lesseenotice of such taking is given by Landlord to Tenant. Upon the date specified in Tenant's Notice notice (which shall be a date as soon thereafter as is practical for Tenant to relocate from the Building, but in no event more than one hundred eighty (180) days thereafter), the Term of this Lease shall terminate and, subject to a proration and apportionment of Annual Rental and proration, apportionment and reconciliation of Additional Rental and other sums due hereunder as of the date of the termination, no further rent shall be due hereunder. Upon a Notice partial taking and the Term of this Lease continuing in force as to Lessee any part of Lessorthe Premises, the Annual Rental or any Additional Rental shall be reduced proportionately based upon the part or parts of the Premises and/or other parts of the Building so taken. If a part of the Building is taken, and either (i) Landlord's unconditionalarchitect or contractor reasonably estimates that reconstruction would require more than one hundred eighty (180) days; (ii) in Landlord's good faith, legally binding obligation reasonable judgment the remaining portion of the Building cannot be restored to a functional whole or cannot be restored so as to be responsible for all efficient and economically viable to own, operate and maintain as a commercial office building or (iii) the cost of restoration costs in excess will require more than the condemnation proceeds paid to Landlord, then Landlord may elect to terminate this Lease by delivering written notice of such election to Tenant not later than sixty (60) days following the Date of the Awards. If Taking, and this Lease is not terminated shall terminate as of a date mutually acceptable to Landlord and Lessee restores the HotelTenant, the Award fundsbut in no event more than one hundred eighty (180) days following such notice, subject to a proration and any apportionment of Annual Rental and proration, apportionment and reconciliation of Additional Rental and other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor due hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Sources: Office Lease (Helmerich & Payne Inc)
Partial Taking. If title In the event of a Partial Taking of a Facility, Tenant shall commence and diligently proceed to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any the Leased Improvements on the applicable Leased Property so that such Leased Improvements shall constitute a complete architectural unit (if applicable) of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the ImprovementsPartial Taking; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionif a Partial Taking renders a Facility Unsuitable for Its Primary Intended Use, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor Tenant shall have the right, in its sole discretion, exercisable by written notice to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement Landlord within thirty (30) days after such partial Partial Taking is final without appeal permitted, and before the Condemnor takes possession, to purchase the affected Facility for the Facility Purchase Price, which purchase shall be completed within ninety (90) days of such notice. Landlord shall contribute to the cost of restoration, or if Tenant elects to purchase the affected Facility, Landlord shall pay over to Tenant, any Award payable to Landlord for such Partial Taking; provided, however, that the amount of such contribution shall not exceed the cost of restoration. If (a) Tenant elects to restore the Facility, (b) no Event of Default is then continuing and (c) the Award is equal to or less than the Approval Threshold, then Landlord's contribution shall be made to Tenant prior to the commencement of the restoration. If (a) Tenant elects to restore the Facility, (b) no Event of Default is then continuing and (c) the Award is more than the Approval Threshold, then Landlord shall make the Award available to Tenant in the manner provided in Section 14.10 hereof for insurance proceeds in excess of the Approval Threshold. The Base Rent shall be reduced by reason of such Partial Taking to an amount agreed upon by Landlord and Tenant, and if Landlord and Tenant cannot agree upon a new Base Rent, the new Base Rent amount shall be equal to the Base Rent prior to the Partial Taking, reduced in proportion to the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionreduction in the Fair Rental Value of the affected Facility or Leased Property resulting from the Partial Taking.
Appears in 1 contract
Partial Taking. If title to less than the whole only part of the Leased Property Premises shall be so taken and a -------------- part thereof remains which is condemnedreasonably susceptible for occupation by Sublessee hereunder for the purposes for which Sublessee has entered into this Sublease, this Sublease shall, as to the part so taken, terminate as of the date when the possession so taken shall be required, and the Leased Property rent and all other sums payable by Sublessee on account of the Premises hereunder, shall be adjusted as provided below. If, after the taking of a portion of the Premises, there does not remain a portion reasonably susceptible for Sublessee's occupation hereunder, this Sublease shall thereupon automatically terminate in the manner is not Unsuitable for its Primary Intended Useif the whole Premises had been taken. Whether all or part of the Premises be taken, all compensation awarded upon such taking with respect to the real property and improvements shall go to Lessor, and not Uneconomic Sublessee shall have no claim thereto, nor shall Sublessee have claim against Lessor for its Primary Intended Useany loss, damage, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and for any other sums advanced by Lessor pursuant reason alleged to this Sectionresult therefrom, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, that Sublessee shall in no event be precluded hereby from perfecting its own claim against the amount authority or taker for damages for the taking of such contribution will not exceed such costits leasehold interest, personal property; fixtures; or expenses incurred in, or as a result of, any eminent domain action. If In the Awards are not adequate event of a partial termination of this Sublease under this Paragraph 13 or under Paragraph 22 of the Lease, Rents shall be reduced, based on the ratio that the number of square feet of the Premises so taken bears to restore the Hotel total square feet comprising the Premises. In the event any taking of the Premises under power of eminent domain results in Substantial and material interference with Sublessee's ability to that conditionconduct its business from the Premises, each of Lessor and Lessee Sublessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, Sublease by giving Notice delivering written notice thereof to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionSublessor.
Appears in 1 contract
Sources: Sublease (Power Integrations Inc)
Partial Taking. If title to less than 14.3.1 In the whole event any portion or portions of the Leased Property is condemned, and Premises shall be taken under the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit exercise of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall power of eminent domain or by agreement with any condemnor in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount lieu of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate taking (herein called a “Partial Taking”) then this Lease, without in any way affecting any only as to the portion or portions so taken, shall terminate as of the Other Leases in effect, by giving Notice date possession thereof shall be delivered to the other; providedcondemnor, however thatand Rent shall be abated from that date with respect to the portion or portions so taken, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep but otherwise this Lease shall remain in full force by providingand effect. Notwithstanding the foregoing, within if as a result of such Partial Taking, Tenant determines in the exercise of Tenant’s reasonable business judgment that the remainder of the Premises is unsuitable for Tenant’s use thereof, or it is economically unfeasible to reconstruct or operate Tenant’s business in the remaining portion of the Premises because of the insufficiency in size of the remaining portion of the Premises, or access to the Premises is materially impaired and no reasonable alternate access is available, and Tenant gives written notice thereof to Landlord, then (a) this Lease shall terminate thirty (30) days after Lessee's Notice from the date possession of terminationthe part taken shall be delivered to the condemnor, a Notice to Lessee of Lessor's unconditional, legally binding obligation (b) such Partial Taking shall be deemed to be responsible for all restoration costs in excess and treated as a Total Taking, and (c) Tenant shall comply with the provisions of Section 17 hereof as to the portion of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds Premises remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. said Taking.
14.3.2 In the event case of a partial Partial Taking that which does not result in a termination of this Lease, the Base annual Minimum Rent payable under this Lease after possession of the portion so taken shall be abated delivered to the condemnor shall be reduced in the manner and same proportion as the value of the Premises reduced by such Taking; but any such Partial Taking shall not otherwise relieve Tenant from any of Tenant’s other obligations hereunder, and, except as herein expressly provided, Tenant waives any right now or hereafter conferred upon Tenant by statute or otherwise to any suspension, diminution, abatement or reduction of Rent or to surrender this Lease or the Premises by reason of such Partial Taking.
14.3.3 The entire award in any Partial Taking payable with respect to the extent that is fairPremises and this Lease shall be paid to Landlord. Tenant shall be entitled to any award which the condemnor may make, just and equitable which shall be provided for by law, specifically for the Improvements and Excluded Fixtures for which Title remains vested in Tenant, provided the same are not deducted from the award otherwise payable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionLandlord.
Appears in 1 contract
Sources: Lease Agreement (Wells Real Estate Investment Trust Inc)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section 15.3SECTION 14.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's ’s Notice of termination, a Notice to Lessee of Lessor's ’s unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements terms of any ground or building lease or Mortgage) lender mortgage, shall be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Partial Taking.
15.3.1 If title to less than during the whole Term the Arena Facility is the subject of the Leased Property is condemned, and the Leased Property a Taking that is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Usea Substantial Taking, or if Lessee or Lessor a Substantial Taking occurs but this Agreement and the Noncompetition/Non-Relocation Agreement are not terminated and the Condemnation Award is, in the reasonable estimation of the Arena Manager (which estimation is entitled but neither elects reasonably approved by the City), sufficient to terminate this Lease as provided restore the remainder of the Arena Facility to the Condemnation Restoration Standard, such Condemnation Award shall be deposited in Section 15.3an account specified by Arena Manager. In such event, Lessee at its cost and the Condemnation Award shall be disbursed from said account to pay the costs of such restoration in accordance with the terms Condemnation Restoration Standard, as soon as is reasonably possible and this Agreement and the Noncompetition/Non-Relocation Agreement shall continue in full force and effect.
15.3.2 If during the Term (a) the Arena Facility is the subject of this Lease and any Construction Services Agreement entered into a Taking that is not a Substantial Taking; (b) the Condemnation Award is, in connection herewiththe reasonable estimation of the Arena Manager (which estimation is reasonably approved by the City), shall with all reasonable dispatch, but only insufficient to pay the costs of restoration of the Arena Facility to the extent Condemnation Restoration Standard; and (c) monies received under Sections 15.3.4 and 15.3.5 below (together with the Condemnation Award), are sufficient in the reasonable estimation of any the Arena Manager (which estimation is reasonably approved by the City) to pay the amount by which the costs of such restoration exceed the Condemnation Award, the Condemnation Award funds made available and such monies shall be disbursed from the account into the foregoing account to Lessee pay the costs of such restoration in accordance with the Condemnation Restoration Standard as soon as is reasonably possible. In such event, this Agreement and any the Noncompetition/Non-Relocation Agreement shall continue in full force and effect.
15.3.3 If the monies in the account specified by Arena Manager (after the deposit of the Condemnation Award therein), are insufficient to pay the costs of such restoration, then, within 90 days after the date of the Taking, the Arena Manager shall give the Team Owner and the City notice of the Condemnation Deficiency, and the Arena Manager shall elect to either (i) provide, within 30 days after providing such notice, additional monies in the amount of the Condemnation Deficiency, or (ii) terminate this Agreement and the Noncompetition/Non-Relocation Agreement by notice of termination to the other sums advanced parties.
15.3.4 If the Arena Manager elects to provide the amount of the Condemnation Deficiency, the Arena Manager shall deposit such amount in the account specified by Lessor Arena Manager, and monies shall be disbursed from said account to pay the costs of such restoration in accordance with the Condemnation Restoration Standard as soon as is reasonably possible. In such event, this Agreement and the Noncompetition/Non-Relocation Agreement shall continue in full force and effect. The Arena Manager shall be reimbursed for the amount provided to the Arena Manager pursuant to this SectionSection (plus interest at the Interest Rate from the date of provision to the date of reimbursement) from the specified account, restore as monies become available from such account.
15.3.5 If the untaken portion Arena Manager is entitled to and does elect to so terminate this Agreement and the Noncompetition/Non-Relocation Agreement, the City shall have the right (within 30 days after the City’s receipt of any Improvements so that such Improvements constitute a complete architectural unit notice of the same general character and condition (as nearly as may be possible under the circumstancesArena Manager’s election to so terminate) as the Improvements existing immediately prior to give notice to the Condemnation. Lessor other parties of the City’s intent to pay the amount of the Condemnation Deficiency, in which event the City shall in good faith seek a fair and equitable allocation deliver, within 30 days after the date of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, howeverCity’s notice, the amount of the Condemnation Deficiency to the Arena Manager for deposit into the Arena Manager’s specified account. Upon such contribution will not exceed such cost. If deposit, the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right Arena Manager’s election to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination be deemed rescinded and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award fundsvoid, and any other sums made available by Lessor as aforesaid, monies shall (subject be disbursed from such account to pay the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction in accordance with the Condemnation Restoration Standard as soon as is reasonably possible. In such event, this Agreement and the Noncompetition/Non-Relocation Agreement shall continue in full force and effect.
15.3.6 If the City does not give such notice to the City’s intent to pay the Condemnation Deficiency amount within 30 days after the City’s receipt of reasonable terms the Arena Manager’s notice of election to terminate, or does not deliver the Condemnation Deficiency amount to the Arena Manager within the thirty-day period for delivery described above, this Agreement and conditionsthe Noncompetition/Non-Relocation Agreement shall be terminated at the expiration of the applicable thirty-day period, and any excess the Condemnation Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and paid to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter parties as their interests may be submitted by either party to arbitration under Section 22.2 hereof for resolutionappear.
Appears in 1 contract
Sources: Arena Lease and Management Agreement
Partial Taking. If title to less than 14.2.1 Tenant may, at its election, terminate this Lease upon the whole occurrence of any condemnation, or conveyance in lieu of condemnation, which affects:
(i) Twenty percent (20%) or more of the Leased floor area of the Premises;
(ii) Twenty percent (20%) or more of the parking areas of the Property is condemnedshown on EXHIBIT "B" annexed hereto; or
(iii) Any portion of the Common Areas whose condemnation would materially affect ingress to and egress from the Premises. Tenant shall give Landlord notice of Tenant's election within thirty (30) days after Tenant shall receive notice of such pending condemnation. If Tenant fails to give Landlord such written notice within such thirty (30) day period, and the Leased Property is Tenant shall be conclusively deemed to have elected not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms Lease. Notwithstanding any termination of this Lease and any Construction Services Agreement entered into in connection herewithby Tenant hereunder, shall with all reasonable dispatchTenant, but only at its election, may continue to occupy the Premises, subject to the extent terms and provisions of this Lease, for all or such part, as Tenant may determine, for the period between the date of such taking and the date when possession of the Premises shall be taken by the appropriate authority.
14.2.2 Notwithstanding anything to the contrary set forth herein, if any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that the Premises is condemned or conveyed in lieu of such Improvements constitute a complete architectural unit condemnation during the last two (2) years of the same general character and condition term hereof, then either Tenant or Landlord may terminate this Lease upon thirty (as nearly as may be possible under the circumstances30) as the Improvements existing immediately prior days written notice to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvementsparty; provided, however, the amount that any such notice of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditiontermination by Landlord shall be ineffective, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease shall remain in full force by providingand effect, if Tenant, within thirty (30) days after Lessee's Notice receipt of terminationsuch notice from Landlord, a Notice shall give notice to Lessee Landlord of Lessor's unconditional, legally binding obligation its intention to be responsible for all restoration costs extend the term of this Lease in excess of the Awardsaccordance with ARTICLE III above. If Tenant gives Landlord such notice of such renewal, Landlord shall repair and/or restore the Premises in accordance with the terms and conditions of this ARTICLE XIV. Notwithstanding any termination of this Lease is not terminated pursuant to the terms and Lessee restores conditions of this Section 14.2.2, Tenant, at its election, may continue to occupy the HotelPremises, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination conditions of this Lease, for the Base Rent period between the date of such taking and the date when possession of the property to be condemned shall be abated in taken by the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionappropriate authority.
Appears in 1 contract
Sources: Facility Lease (Mazel Stores Inc)
Partial Taking. If title to less than the whole there is a Taking of a portion of the Leased Property is condemned, and by Condemnation such that the Leased Property Facility is not thereby rendered Unsuitable for its Its Primary Intended Use, this Lease shall remain in effect, and to the extent required by the last sentence of Section 14.5 Lessor shall make available to Lessee the proceeds of any such Taking for the restoration of the Leased Property to substantially the same condition as existed immediately before such Taking or such other condition consistent with the Primary Intended Use as may be approved by Lessor in writing, which consent shall not Uneconomic be unreasonably withheld if such other condition would not, in Lessor's good faith judgment, result in a reduction in the value of the Leased Property or negatively affect the ability of Lessee to pay Rent hereunder as and when due. If, however, the Facility is thereby rendered Unsuitable for its Its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects shall have the right (a) to terminate this Lease take such proceeds of any Award as provided in Section 15.3shall be necessary and restore the Facility, Lessee at its cost own expense, to the extent possible, to substantially the same condition as existed immediately before the partial Taking or such other condition consistent with the Primary Intended Use as may be approved by Lessor in writing, which consent shall not be unreasonably withheld if such other condition would not, in Lessor's good faith judgment, result in a reduction in the value of the Leased Property or negatively affect the ability of Lessee to pay Rent hereunder as and when due, or (b) to offer to substitute a new property pursuant to and in accordance with the terms provisions of this Lease and any Construction Services Agreement entered into in connection herewith, Article XX. Lessee shall with all reasonable dispatch, but only to the extent of any Award funds made available to exercise its option by giving Lessor notice thereof within 60 days after Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit receives notice of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorTaking. In the event Lessee does not make an offer or Lessor does not accept Lessee's offer to substitute for the Leased Property within 30 days after receipt of a the notice described in the preceding sentence, Lessee shall either (a) withdraw its offer to substitute for the Leased Property and within 30 days after the end of such 30-day period (or, if no offer is made, within 60 days following the date of such Taking) proceed to restore the Facility, to the extent possible, to substantially the same condition as existed immediately before the partial Taking that does or such other condition consistent with the Primary Intended Use as may be approved by Lessor in writing, which consent shall not be unreasonably withheld if such other condition would not, in Lessor's good faith judgment, result in a termination of this Lease, the Base Rent shall be abated reduction in the manner value of the Leased Property or negatively affect the ability of Lessee to pay Rent hereunder as and when due, or (b) within 60 days after the end of such 30-day period (or, if no offer is made, within 60 days following the date of such Taking), acquire the Leased Property from Lessor for a purchase price equal to the extent that is fair, just and equitable Minimum Repurchase Price of the Leased Property immediately prior to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Partial Taking. If title to less than the whole any part of the Leased Property Premises is condemnedtaken for any public or quasi-public use under any statute or by right of eminent domain and in Sublessor's and Sublessee's reasonable opinion, the remaining part is reasonably suitable for Sublessee's continued occupancy for the uses permitted by this Sublease and the conduct of its business therein, this Sublease shall, as to the part so taken, terminate as of the date that possession of such part of the Premises is taken and the Monthly Rent shall be reduced in the same proportion that the RSF of the portion of the Premises so taken (less any addition thereto by reason of any reconstruction) bears to the original Premises Square Footage (including, without limitation, the Must Take Space, if the same has been added to the Premises pursuant to Exhibit "M"), as reasonably determined by Sublessor's Architect pursuant to Section 12.7. Sublessor shall, at its own cost and expense, make all necessary repairs or Alterations to restore the Premises so as to make the portion of the Premises not taken a complete architectural unit. Sublessor shall not be required, however, to exceed the scope of the work done by Sublessor in originally constructing the Premises to the condition existing on the Commencement Date (together with any other improvements required to be made by Sublessor under this Sublease) and to the extent severance damages from the condemning authority are sufficient therefore, and subject to any requirements under the Leased Property is Master Lease or of any Mortgagee, to restore Sublessee's Improvements, Sublessee's Special Systems and any Alterations made by or on behalf of Sublessee. If severance damages from the condemning authority are not Unsuitable available to Sublessor in sufficient amounts to permit such restoration, Sublessee shall have the option to pay the shortfall. whereupon Sublessor shall complete such restoration; otherwise Sublessor may terminate this Sublease upon Notice to Sublessee. If Sublessor does not restore Sublessee's Improvements, Sublessee's Special Systems or such Alterations for its Primary Intended Useany reason, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects Sublessee shall have the option to terminate this Lease Sublease upon Notice to Sublessor. Monthly Rent due and payable hereunder shall be temporarily abated during such restoration period in proportion to the degree Sublessee is reasonably unable to use the Premises for the normal conduct of its business therein. as provided in reasonably determined by Sublessor's Architect pursuant to Section 15.3, Lessee at its cost and in accordance with 12.7. Each party hereby waives the terms provisions of this Lease Section 1265 of the California Code of Civil Procedures and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only present or future law allowing either party to petition the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right Superior Court to terminate this Lease, without Sublease in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination taking of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionBuilding or Premises.
Appears in 1 contract
Sources: Sublease (Inflow Inc)
Partial Taking. If title to the fee of a substantial part but less than the whole all of the Leased Property ▇▇▇▇▇▇ Complex, other improvements or real property of which the Premises are a part and the land underlying the same is condemnedso condemned or appropr!ated, and if the Leased Property is not Unsuitable remainder of the Premises can reasonably be used for substantially the same purposes and in substantially the same manner, except for the amount of floor space, as the Premises prior to such condemnation or appropriation, then this Lease shall continue in full force and effect without change, with respect to the remaining portion of the Premises, except that Minimum Rent shall be equitably adjusted. The foregoing notwithstanding, the Landlord at its Primary Intended Useoption, and not Uneconomic for may notify Tenant of its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects desire to terminate this Lease, such termination to be effective on date set by Landlord. If this Lease as provided in Section 15.3shall so continue, Lessee the Landlord shall, at its own cost and in accordance expense, with reasonable promptness, repair and/or rebuild the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken remaining portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the ImprovementsPremises; provided, however, that the Landlord shall in no event be required to expend for such work an amount in excess of the amount of money received by said Landlord for the taking of the portion of the Premises condemned. The amount of money received by Landlord shall mean that part of the award in condemnation which is free and clear to Landlord of any demand by mortgage, mortgages or other secured parties for the value of the diminished fee. If, during the performance of any such contribution will not exceed work, the business of the Tenant is substantially interrupted, Minimum Rent shall be equitably adjusted until such costwork is completed. If the Awards are part of the Premises not adequate condemned cannot be used for substantially the same purposes and in substantially the same manner, except for the amount of space, as the Premises prior to restore such condemnation, the Hotel to that condition, Landlord and the Tenant shall each of Lessor and Lessee shall have the right option to terminate this Lease by written notice to the other within ninety (90) days after the date of taking. If any such notice be given, the Lease shall terminate at the end of the month in which occurs the thirtieth (30th) day after the giving of such notice. The foregoing notwithstanding, the Landlord, at its option, may notify Tenant of its desire to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available effective on date set by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionLandlord.
Appears in 1 contract
Sources: Office Lease (X Ramp Com Inc)
Partial Taking. If title to less than the whole any portion of the Leased Property Premises is condemnedtaken by condemnation this Lease shall remain in effect, except that TENANT can elect to terminate this Lease if the remaining portion of the Premises is rendered unsuitable for TENANT'S continued use of the Premises. If TENANT elects to terminate this Lease, TENANT must exercise its right to terminate pursuant to this paragraph by giving notice to LANDLORD within twenty (20) days after the nature and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither extent of the taking have been finally determined. If TENANT elects to terminate this Lease as provided in Section 15.3this paragraph, Lessee at TENANT also shall notify LANDLORD of the date of termination, which date shall not be earlier than (30) days nor later than sixty (60) days after TENANT has notified LANDLORD of its cost election to terminate; except that this Lease shall terminate on the date of taking if the date of taking falls on a date before the date of termination as designated by TENANT. If TENANT does not terminate this Lease within the twenty (20) day period, this Lease shall continue in full force and effect, except that minimum monthly Rent shall be reduced pursuant to paragraph 18(D). D. EFFECT ON RENT: If any portion of the Premises is taken by condemnation and this Lease remains in full force and effect, on the date of taking the minimum monthly Rent shall be reduced by an amount that is in the same ratio to minimum monthly Rent as the value of the area or the portion of the Premises taken bears to the total value of the Premises immediately before the date of taking. E. AWARD-DISTRIBUTION: The award shall belong to and be paid to LANDLORD, except that TENANT shall receive from the award a sum attributable to TENANT'S improvements or alterations made to the Premises by TENANT in accordance with this Lease, which TENANT'S improvements or alterations TENANT has the terms right to remove from the Premises pursuant to the provisions of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only elects not to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnationremove. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee TENANT shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, independently pursue a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the AwardsTENANT award. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution19.
Appears in 1 contract
Sources: Lease Agreement (Eip Microwave Inc)
Partial Taking. If title to less than a Partial Taking occurs, then the whole Term shall not be reduced or affected in any way, this Lease shall remain in full force and effect for the portion of the Leased Property is condemnedremaining after such Taking and the Tenant's obligation to pay Rent shall continue without abatement or diminution. All sums, including damages and interest constituting the Condemnation Award shall be deposited promptly with a Depositary, and shall be distributed and disbursed in the Leased following amounts and in the following order of priority:
(a) First, to be used for restoration of the Land and Improvements to an economically feasible state, in the good faith judgment of Tenant; and
(b) The balance, pro rata between Landlord and Tenant (or Leasehold Mortgagee) in accordance with (i) as to Landlord, the value of Landlord’s fee simple title in the portion of the Property is so taken, taking into account the effect on such value of this Lease and all other matters affecting such interest (had the Taking not Unsuitable for its Primary Intended Useoccurred), and not Uneconomic for (ii) as to Tenant (or Leasehold Mortgagee), the value of the Leasehold and Improvements to Tenant considering the number of years left in the Term. Tenant, at its Primary Intended Usesole cost and expense, shall commence and thereafter proceed to repair, alter, raze or restore the remaining part of the Land, or if Lessee or Lessor is entitled but neither elects otherwise to terminate this Lease as provided secure the Improvements and render the Improvements safe (the "Work"), all in Section 15.3, Lessee at its cost Tenant's reasonable discretion and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such costArticle IX above. If the Awards are not adequate Condemnation Award received by ▇▇▇▇▇▇ is insufficient to restore pay the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any entire cost of the Other Leases in effectwork, then Tenant shall pay the full amount of any such deficiency. If the Condemnation Award received by giving Notice ▇▇▇▇▇▇ shall exceed the entire cost of the Work, then Tenant shall assign its interest and any such excess portion of the Condemnation Award to the other; provided, however thatDepositary if any and, if none, may use such termination is by Lessee, Lessor shall have the rightexcess for such purposes as Tenant, in its sole discretion, deems appropriate. Under no circumstances shall Landlord be obligated to nullify the termination and keep this Lease in full force by providingmake any payment, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess disbursement or contribution towards or on account of the Awards. If this Lease is not terminated and Lessee restores cost of the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionWork.
Appears in 1 contract
Sources: Ground Lease
Partial Taking. If title In case of a Taking other than a Total Taking (a "Partial Taking")
(a) this Lease shall remain in full force and effect; provided, that on the date of such Taking this Lease shall terminate as to less than the whole portion of the Leased Property Premises taken (which portion shall be deemed excluded from the Leased Premises) and if the portion of the Leased Premises that was taken shall include any area designed for tenant occupancy, the Basic Rent shall be reduced by multiplying the same by a fraction, the numerator of which is condemned, the rentable square footage of the portion of the Leased Premises that was taken and the denominator of which is the rentable square footage of the Leased Property is Premises prior to the Taking (the "Taking Fraction") and (b) Tenant, whether or not Unsuitable the awards or payments, if any, on account of such Taking shall be sufficient for its Primary Intended Use, the purpose shall promptly commence Restoration of the Leased Premises (exclusive of the taken portion) and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects thereafter diligently prosecute the same to terminate this Lease as provided in Section 15.3, Lessee at its cost and completion in accordance with the terms of this Lease Plans and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only Specifications therefor (as approved by Landlord or as determined by the Appropriate Engineer to the extent of any Award funds made available be required to Lessee and any other sums advanced have been approved by Lessor Landlord pursuant to this SectionLease). Notwithstanding any Partial Taking, restore the untaken portion of any Improvements so that such Improvements constitute Supplemental Rent shall not be reduced or otherwise abated. Any claim for compensation resulting from a complete architectural unit of the same general character and condition (as nearly as Partial Taking may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvementssettled by Landlord without Tenant's consent; provided, however, that if the amount portion thereof awarded for Restoration is less than the estimated cost of such contribution will Restoration then Tenant shall have a right to approve any such settlement, such approval not exceed such cost. If to be unreasonably withheld, and if the Awards are not adequate to restore portion of the Hotel to Leased Premises that conditionwas taken shall include any Fit-Out Work, each of Lessor and Lessee then Tenant shall have the right to terminate this Leaseparticipate, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the rightat Tenant's expense, in its sole discretionthe prosecution of such claim and the right to approve any such settlement, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation such approval not to be responsible for all restoration costs in excess of unreasonably withheld. Any dispute under the Awards. If this Lease is not terminated and Lessee restores preceding sentence should be resolved by the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionAppropriate Engineer.
Appears in 1 contract
Sources: Lease (Goldman Sachs Group Inc)
Partial Taking. If title to less In the event that (i) more than the whole 25% of the Leased Property Gross Leasable Area of the Premises, including the parking area serving he Premises, is condemnedtaken under the power of eminent domain by any public or quasi-public authority, and (ii) by reason of any appropriation or taking, regardless of the Leased Property amount so taken, the remainder of the Premises is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Useone undivided parcel of property, or if Lessee or Lessor is entitled but neither elects to terminate this Lease (iii) as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent a result of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Sectiontaking, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit regardless of the same general character and condition (as nearly as may be possible under amount so taken, the circumstances) as remainder of the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded premises is rendered unsuitable for the Improvements; providedcontinued operation of Tenant's business, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee either Landlord or Tenant shall have the right to terminate this Lease, without in any way affecting any Lease as of the Other Leases in effectdate Tenant is required to vacate a portion of the Premise, by giving Notice to the other; provided, however that, if other notice of such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, election within thirty (30) days after Lessee's Notice receipt by Tenant from Landlord of written notice that the Premises have been so appropriated or taken. Landlord agrees immediately after learning of any appropriation or taking to give to Tenant notice in writing thereof. In the event of such termination, upon tenant's payment to Landlord of all rents accruing through such date, both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder. If both parties elect not to terminate this lease, Tenant shall remain in that portion of the Premises not s taken and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion f the Premises as soon as possible to a Notice complete unit of like quality and character as existed prior to Lessee such taking. Landlord agrees to reimburse Tenant for the cost of Lessorrestoration, but in o event shall Landlord's unconditional, legally binding obligation to be responsible reimburse Tenant for all restoration costs in excess the cost of restoring the remaining portion of the AwardsPremises exceed the amount of award of compensation that Landlord receives for a partial taking of that portion of the Premises resulting in the need for restoration. If So long as this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to provided above, there shall be an equitable adjustment of the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number rent payable by Tenant hereunder by reason of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in taking. Tenant hereby waives any statutory rights of termination which may arise by reason of any partial taking of the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon premises under the amount power of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutioneminent domain.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Aei Income & Growth Fund Xxii LTD Partnership)
Partial Taking. If title to less than In the whole event any part of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended UseDemised Premises, or if Lessee all or Lessor is entitled but neither elects part of rights-of-way adjoining or approaches to the Demised Premises, are taken in Condemnation Proceedings (other than widening of adjacent highways that do not affect access to the Demised Premises or loss of any merchandise display area or a taking of a portion of the parking lot that leaves a sufficient number of parking spaces remaining for the operation of Tenant’s business and to meet governmental requirements, which shall be considered a “de minimus” taking) so that in the reasonable business judgment of Tenant the Demised Premises remaining would be unsatisfactory for Tenant’s business operation, Tenant may terminate this Lease as provided in Section 15.3upon written notice to Landlord without further liability under this Lease, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that except for such Improvements constitute a complete architectural unit of the same general character and condition (as nearly obligations as may be possible under due as of the circumstances) date of termination, and Landlord shall refund any unearned rent to Tenant. Should Tenant elect to retain that portion of the Demised Premises not taken, Landlord shall promptly and with due diligence restore the remaining Demised Premises to as the Improvements existing immediately close to their condition as existed prior to the Condemnationtaking as is feasible. Lessor Commencing on the date Tenant relinquishes possession of that portion of the Demised Premises taken and during the remainder of the Term, rent shall be reduced (i) in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute proportion to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate Demised Premises lost, except that there shall be no reduction for a de minimus taking, or (ii) if Tenant shall elect, in proportion to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any effect of the Other Leases in effectloss of such area on Tenant’s business. Notwithstanding the foregoing, by giving Notice should Tenant be required to relinquish possession of the other; providedentire Demised Premises during the period of restoration, however that, if such termination is by Lessee, Lessor Rent shall have ▇▇▇▇▇ completely from the right, in its sole discretion, time Tenant relinquishes possession of the entire Demised Premises until the first to nullify the termination and keep this Lease in full force by providing, within thirty occur of (30i) sixty (60) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all the restoration costs in excess is Complete and exclusive possession of the Awards. If this Lease Demised Premises is not terminated and Lessee restores delivered to Tenant, or (ii) the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject date on which Tenant reopens its business to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionpublic.
Appears in 1 contract
Sources: Lease Agreement (Maravai Lifesciences Holdings, Inc.)
Partial Taking. If title to less than In the whole event of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3a Partial Taking of a Parcel, Lessee at its cost shall commence and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only diligently proceed to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any the Leased Improvements on the applicable Leased Property so that such Leased Improvements shall constitute a complete architectural unit (if applicable) of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the ImprovementsPartial Taking; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionif a Partial Taking renders a Parcel Unsuitable for Its Primary Intended Use, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, exercisable by written notice to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Partial Taking is final without appeal permitted, and before the Condemnor takes possession, to purchase the affected Parcel for the Parcel Purchase Price, which purchase shall be completed within sixty (60) days of such notice. Lessor shall contribute to the cost of restoration, or if Lessee elects to purchase the affected Parcel, Lessor shall pay over to Lessee, any Award payable to Lessor for such Partial Taking; provided, however, that the amount of such contribution shall not exceed the cost of restoration. If
(a) Lessee elects to restore the Parcel, (b) no Event of Default is then continuing and (c) the Award is equal to or less than the Approval Threshold, then Lessor's contribution shall be made to Lessee prior to the commencement of the restoration. If
(a) Lessee elects to restore the Parcel, (b) no Event of Default is then continuing and (c) the Award is more than the Approval Threshold, then Lessor shall make the Award available to Lessee in the manner provided in Section 14.10 for insurance proceeds in excess of the Approval Threshold. The Base Rent shall be reduced by reason of such Partial Taking to an amount agreed upon by Lessor and Lessee, and if Lessor and Lessee cannot agree upon a new Base Rent, the new Base Rent amount shall be equal to the Base Rent prior to the Partial Taking, reduced in proportion to the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionreduction in the Fair Rental Value of the affected Parcel of Leased Property resulting from the Partial Taking.
Appears in 1 contract
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatchdispatch , but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe 30 36 next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 41.2 hereof for resolution.
Appears in 1 contract
Partial Taking. (i) If title to less than there is a Condemnation of a portion of a Facility, this Master Lease shall remain in effect if the whole of the Leased Property is condemned, and the Leased Property affected Facility is not thereby rendered, in the reasonable determination of Tenant, Unsuitable for its Its Primary Intended Use, and not Uneconomic but if such Facility is thereby rendered Unsuitable for its Its Primary Intended Use, or if Lessee or Lessor this Master Lease shall at Tenant’s option terminate with respect to such Facility as of the date on which Notice of such determination is entitled but neither elects delivered to terminate this Lease as provided in Section 15.3, Lessee at its cost Landlord and Rent will ▇▇▇▇▇ in accordance with Section 14.6.
(ii) Notwithstanding the terms foregoing, in the event of a Condemnation of a portion of a Facility representing fifty (50%) or more of the fair market value of such Facility, Tenant may terminate this Master Lease and as to such Facility (but not as to any Construction Services Agreement entered into other Facility) as of the date on which Notice of such termination is delivered to Landlord in connection herewithwhich event, shall Rent will ▇▇▇▇▇ in accordance with all reasonable dispatch, but only Section 14.6.
(iii) In the event of a Condemnation of a portion of a Facility representing ten percent (10%) or more of the fair market value of such Facility during the final two years of the then-current Term (after giving effect to any Renewal Notice that has been delivered or is delivered pursuant to the extent of any Award funds made available proviso below), either Landlord or Tenant may terminate this Master Lease as to Lessee and such Facility (but not as to any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit Facility) as of the same general character day before the Date of Taking and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor Rent will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded continue unabated for the Improvementsremainder of the Term; provided, however, such termination by Landlord shall not be effective in the amount event that Tenant elects, within sixty (60) days of such contribution Landlord’s election to terminate, to exercise Tenant’s next arising option for a Renewal Term. Any dispute between Landlord and Tenant with respect to the extent of a Condemnation will not exceed such costbe determined by Experts pursuant to Section 34.1. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right Tenant elects to terminate this Lease, without in any way affecting any Master Lease with respect to a Facility during the final two years of the Other Leases then-current Term in effectaccordance with this Section 15.1, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, Tenant shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and deemed to the extent that is fair, just and equitable have forfeited Tenant’s right to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionexercise any further Renewal Terms.
Appears in 1 contract
Partial Taking. If title to less than the whole of the Leased -------------- Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel to that conditionFacility as aforesaid, each of the Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases for Other Properties then in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however thathowever, that if such termination is by Lessee, Lessor shall have the right, in its Lessor's sole discretion, to nullify the termination and keep this Lease in full force and effect by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated Lessor shall in good faith seek a fair and Lessee restores the Hotelequitable allocation of any Award among restoration, the Award funds, taken Leasehold Improvements and any other sums made available by elements. Lessor as aforesaid, shall (subject contribute to the requirements cost of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time restoration that part of its Award specifically allocated to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, together with severance and reimbursement other damages awarded for the taken Leased Improvements; provided, however, that the amount of Lessor for any sums advanced by Lessor hereunder, such contribution shall be retained by Lessornot exceed such cost. In the event of a partial Taking that does taking after which this Lease shall not result in a termination of this Leasebe terminated, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, or the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Takingtaking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Takingtaking, the matter may be submitted by either party to arbitration under in accordance with Section 22.2 hereof 40.1 below for resolution.
Appears in 1 contract
Sources: Lease Agreement (American General Hospitality Corp)
Partial Taking. If title to any portion of the demised premises shall be so taken which shall be less than a complete taking (a "partial taking"), Landlord shall be entitled to and shall receive the whole of the Leased Property is condemnedtotal award made in such proceeding, including interest thereon, if any, and the Leased Property is not Unsuitable for its Primary Intended Use, rent and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the other terms of this Lease and shall not be reduced or affected in any Construction Services Agreement entered into in connection herewithway. Subject to the rights of Mortgagee, Tenant, at its sole expense, shall with all reasonable dispatchproceed to restore, but only repair, replace or rebuild the remaining part of the demised premises as nearly as possible to the condition they were in immediately prior to such taking, to the extent that the same shall be feasible. The obligation of any Award funds made available Tenant to Lessee and any other sums advanced by Lessor pursuant make such restoration, repairs, ----------------------------------------------------------------------------------------------------------------------- replacements, or rebuilding shall be conditioned upon the payment to this Section, restore Tenant (or agreement to pay subject to conditions referred to in the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit next sentence) of the same general character net amount of such award including interest thereon, if any, after deducting (a) the fair value of the land so taken, and condition (as nearly as b) all expenses incurred by Landlord in connection with such proceeding. Such payment may be possible under the circumstances) as the Improvements existing immediately prior made in installments subject to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute customary applications with respect to the cost of restoration that part the work as said cost shall be certified to Landlord or Mortgagee(s), and/or by the architect or contractor in charge of its Award specifically allocated to the work who shall be approved in writing by the Landlord and such Mortgagee(s), which approval shall not be unreasonably withheld. The excess of any such award over the cost of such restoration, together with severance repairs, replacements or rebuilding shall belong to Landlord, and other damages awarded for the Improvements; provided, however, the amount cost of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionrestoration, each of Lessor and Lessee shall have the right to terminate this Leaserepairs, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs replacements or rebuilding in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, award shall be retained borne by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionTenant.
Appears in 1 contract
Partial Taking. If title to the fee of less than the whole of the Leased Property is Premises shall be so taken or condemned, and which nevertheless renders the Leased Property is not Premises Unsuitable for its Its Primary Intended Use, Tenant and not Uneconomic for its Primary Intended UseLandlord shall each have the option, exercisable by written notice to the other, at any time within thirty (30) days after the taking of possession by, or if Lessee or Lessor is entitled but neither elects the date of vesting of title in, such Condemnor, whichever first occurs, to terminate this Lease as provided in Section 15.3of the Taking. Upon such date so determined, Lessee if such notice has been given, this Lease shall thereupon cease and terminate as to such Leased Premises. All Rent and other charges paid or payable by Tenant hereunder shall be apportioned as of the date the Lease shall have been so terminated. If there is a Taking of a portion of the Leased Premises by Condemnation such that the Leased Premises is not thereby rendered Unsuitable for Its Primary Intended Use, the Landlord at its cost and in accordance with the terms of sole discretion may (a) terminate this Lease, or (b) have this Lease remain in effect and any Construction Services Agreement entered into in connection herewith, Landlord shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements the Building shell in which the Leased Premises are located so that such Improvements Leased Premises shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements Leased Premises existing immediately prior to such Condemnation or Taking. Landlord shall commence the Condemnationrestoration process for the Leased Premises within ninety (90) days of the partial Taking, if the necessary funds have been received by the Landlord, and shall diligently prosecute the restoration to completion. Lessor shall in good faith seek a fair and equitable allocation of Tenant may elect, at any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated time subsequent to such restorationCondemnation or Taking, together with severance upon Landlord’s prior written consent which shall not be unreasonably withheld, to commence such restoration at Tenant’s own expense, and other damages awarded for shall diligently prosecute the Improvements; provided, however, the amount of such contribution will not exceed such costsame to completion. If Tenant elects to undertake the Awards are not adequate to restoration of the Leased Premises so Condemned or Taken, it shall restore the Hotel untaken portion of the Building shell in which the Leased Premises are located so that such Leased Premises shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Premises existing immediately prior to that condition, each of Lessor and Lessee such Condemnation or Taking. Tenant shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, reimbursed from the Award fundsfor such Condemnation or Taking, and any other sums made available by Lessor as aforesaid, shall (subject for its external expenses related to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Partial Taking. If title to less than the whole substantially all of the Leased Property office building component or the warehouse component of the Improvements or the related Land shall be taken or either component is condemnedtemporarily taken for public or quasi-public purposes on or after Substantial Completion of any component of the Improvements, and the Leased Property is not Unsuitable for its Primary Intended UseTenant will promptly, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its sole cost and expense, restore, repair, replace or rebuild the affected component(s) so taken in accordance conformity with the terms requirements of this Lease paragraphs 8 and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (22 as nearly as may be possible under practicable to the circumstances) as the Improvements existing condition, size, quality of workmanship and market value thereof immediately prior to such taking, without regard to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation adequacy of any Award among condemnation award for such purpose. There shall be no abatement of Rent during such period of restoration. Tenant may, taken Improvements at its sole cost and other elements. Lessor expense, participate with Landlord in the negotiation of the amount of the award with the condemning authority, but Tenant shall have no right to prevent Landlord from agreeing to a settlement so long as the settlement will contribute provide sufficient funds to pay the cost of the restoration that part of work required by this paragraph. In performing its Award specifically allocated obligations, Tenant shall be entitled to such restorationall condemnation proceeds available to Landlord under the same terms and conditions for disbursement set forth for casualty proceeds in paragraph 9 hereof. Tenant shall, together with severance at its sole cost and other damages awarded for the Improvements; providedexpense, howevernegotiate and, if necessary, litigate, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionaward, each of Lessor and Lessee Landlord shall have the right to terminate this Leaseparticipate in such process, without in any way affecting any and if Tenant fails to diligently prosecute such efforts, Landlord may take control of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs process. Any condemnation proceeds in excess of the Awardsamounts as are made available to Tenant for restoration or repair of the Premises and the cost of collection thereof, shall be the sole and exclusive property of Landlord. If this Lease is not terminated Tenant shall have the right to participate in condemnation proceedings with Landlord, and Lessee restores shall be entitled to receive any award made by the Hotelcondemning authority in respect of business loss or, the Award fundsif available, business relocation and any other sums made available claim permitted by Lessor as aforesaidlaw which does not, shall (subject to the requirements in any such case, diminish Landlord's recovery. After receipt of Landlord of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time condemnation proceeds not required for the reasonable costs restoration of such restoration upon satisfaction the Premises or the cost of reasonable terms and conditionscollection thereof, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Fixed Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, reduced dollar-for-dollar by the amount of square footageany reduction in debt service on the First Mortgage occasioned by the prepayment resulting from such condemnation proceeds. Landlord agrees to use commercially reasonable efforts to cause its lenders to agree to reamortize their loans after application of condemnation awards, the revenues affected by rather than apply such partial Taking and changes awards in the Hotel's projected net operating income following such partial Takinginverse order of loan payments. If Lessor and Lessee are unable there is no reduction in debt service as a result of such application by Mortgagee, Tenant shall receive an amount equal to agree the amount so applied by Mortgage upon the amount earlier to occur of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionrefinancing of the Mortgage or the sale of the Premises.
Appears in 1 contract
Sources: Lease Agreement (Holmes Group Inc)
Partial Taking. If title Upon the occurrence of any Partial Taking, this Lease shall continue in full effect without abatement or reduction of Basic Rent, Additional Rent or other sums payable by Tenant. In the event Landlord receives a Net Award in connection with any such Partial Taking Landlord shall, provided there is no Event of Default hereunder, make the Net Award available to less than the whole Tenant, and Tenant shall, regardless of the Leased Property is condemnedadequacy of the award, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and make repairs in accordance with the terms requirements of this Lease and any Construction Services Agreement entered into in connection herewithSection 5.4(a) hereof so that, thereafter, the Premises shall with all reasonable dispatchbe, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) possible, in a condition as good as the Improvements existing condition thereof immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationsuch Taking, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however thatbut, if such termination is by Lessee, Lessor Net Award shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the HotelOne Hundred Thousand Dollars ($100,000), the Award funds, and any other sums made available by Lessor as aforesaid, proceeds shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor Landlord or a proceeds trustee (which may be Lender or Lender's designee, or a bank or trust company designated by Landlord), and paid out only upon delivery to Landlord of (i) certificates of Tenant identifying the repair work for which Tenant is requesting payment and the cost incurred by Lessor from time to time for Tenant in connection therewith
(a) if such Partial Taking occurs during the reasonable costs last 49th through 60th months of such restoration upon satisfaction the Primary Term or any Extended Term, 20% of reasonable terms and conditions, and any the excess Net Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In delivered to Landlord and the event of a partial Taking that does not result in a termination of this Lease, the Base Rent balance shall be abated in delivered to Tenant; (b) if such Partial Taking occurs during the manner last 37th through 48th months of the Primary Term or any Extended Term, 40% of the excess Net Award shall be delivered to Landlord and the balance shall be delivered to Tenant; (c) if such Partial Taking occurs during the extent that is fairlast 25th through 36th months of the Primary Term or any Extended Term, just 60% of the excess Net Award shall be delivered to Landlord and equitable the balance shall be delivered to both Lessee Tenant; (d) if such Partial Taking occurs during the last 13th through 24th months of the Primary Term or any Extended Term, 80% of the excess Net Award shall be delivered to Landlord and Lessorthe balance shall be delivered to Tenant; and (e) if such Partial Taking occurs during the last 12 months of the Primary Term or any Extended Term, taking into consideration, among other relevant factors, 100% of the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable excess Net Award shall be delivered to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionLandlord.
Appears in 1 contract
Sources: Purchase and Sale Leaseback Agreement (Ugly Duckling Corp)
Partial Taking. If title to less than (a) If, during the whole Term of this Lease, a portion of the Leased Premises shall be taken or conveyed, this Lease shall terminate and come to an end as to the part of the Property which is condemnedtaken, upon the date title is vested in the condemning authority as a result of such Taking, but shall not terminate as to the Award for the part of the Premises which is taken, and otherwise this Lease shall continue in full force and effect as to the Leased Property remainder of the Premises, subject to the provisions of Section 12.4(b) hereof. If there is a Taking of the type provided for in this Section 12.4, then, as to the part of the Premises not Unsuitable so taken, the Tenant covenants and agrees, for itself and its Primary Intended Usesuccessors in interest, that the Tenant shall, at its sole cost and expense (subject to reimbursement to the extent hereinafter provided), promptly restore that portion of the Premises not Uneconomic so taken to a complete architectural unit for the use and occupancy of the Tenant (and those claiming under Tenant) as expressed in this Lease. The provisions and conditions in Article 11 hereof applicable shall apply to the work required to be done under this Section 12.4. As to any such Taking, the Net Award shall be distributed as follows:
(i) First to the Tenant, to the extent of and as a first charge against the Net Award, an amount not exceeding the actual cost reasonably incurred by the Tenant of performing its Primary Intended Useobligations under this Lease imposed upon Tenant as the result of the Taking.
(ii) Second, to Permitted Leasehold Mortgagees to the extent required under their respective loan documents.
(iii) The balance of the Net Award, if any, shall be apportioned between the City and the Tenant in the same manner as the balance of a Net Award apportioned under Subsection 12.2(b)(iv) and (v).
(b) In the event a Taking provided for in this Section 12.4 so diminishes or if Lessee or Lessor impairs the use of the Tenant's Improvements that, notwithstanding restoration, the Tenant would be unable to make economic use of the remainder thereof for the purposes permitted by this Lease, the Tenant, at its option exercisable by notice to the City given not later than one hundred and eighty (180) days after title is entitled but neither elects vested in the condemning authority pursuant to such Taking, may terminate this Lease as of such date. The Base Rent, Additional Rent, Impositions and/or other charges herein provided in Section 15.3, Lessee at its cost and in accordance with to be paid by the terms of this Lease Tenant shall be apportioned to said date and any Construction Services Agreement entered into amounts prepaid by Tenant in connection herewith, excess of its liability based on such apportionment shall with all reasonable dispatch, but only be refunded by the City to the extent of any Award funds made available Tenant. In the event Tenant elects to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without the Net Award shall be allocated and distributed in any way affecting any the manner provided in Section 12.2, except that the value of the Other Leases City's Interest in effect, the Net Award determined under Subsection 12.2(a)(i) shall be reduced by giving Notice the value of the portion of the Premises and the Tenant's Improvements not taken and the amount to be paid to the other; provided, however that, if such termination is City under Subsection 12.2(b) shall be reduced by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess discounted fair rental value of the Awards. If this Lease is portion of the Premises not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time taken for the reasonable costs unexpired portion of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination Term of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Sources: Ground Lease
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's ’s Notice of termination, a Notice to Lessee of Lessor's ’s unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Partial Taking. If title to less In the event that (i) more than the whole 25% of the Leased Property Gross Leasable Area of the Premises, including the parking area serving the Premises, is condemnedtaken under the power of eminent domain by any public or quasi-public authority, and (ii) by reason of any appropriation or taking, regardless of the Leased Property amount so taken, the remainder of the Premises is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Useone undivided parcel of property, or if Lessee or Lessor is entitled but neither elects to terminate this Lease (iii) as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent a result of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Sectiontaking, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit regardless of the same general character and condition (as nearly as may be possible under amount so taken, the circumstances) as remainder of the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded Premises is rendered unsuitable for the Improvements; providedcontinued operation of Tenant's business, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee either Landlord or Tenant shall have the right to terminate this Lease, without in any way affecting any Lease as of the Other Leases in effectdate Tenant is required to vacate a portion of the Premises, by giving Notice to the other; provided, however that, if other notice of such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, election within thirty (30) days after Lessee's Notice receipt by Tenant from Landlord of written notice that the Premises have been so appropriated or taken. Landlord agrees immediately after learning of any appropriation or taking to give to Tenant notice in writing thereof. In the event of such termination, upon Tenant's payment to Landlord of all rents accruing through such date, both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder. If both parties elect not to terminate this Lease, Tenant shall remain in that portion of the Premises not so taken and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion of the Premises as soon as possible to a Notice complete unit of like quality and character as existed prior to Lessee such taking. Landlord agrees to reimburse Tenant for the cost of Lessorrestoration, but in no event shall Landlord's unconditional, legally binding obligation to be responsible reimburse Tenant for all restoration costs in excess the cost of restoring the remaining portion of the AwardsPremises exceed the amount of award of compensation that Landlord receives for a partial taking of that portion of the Premises resulting in the need for restoration. If So long as this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to provided above, there shall be an equitable adjustment of the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number rent payable by Tenant hereunder by reason of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in taking. Tenant hereby waives any statutory rights of termination which may arise by reason of any partial taking of the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon Premises under the amount power of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutioneminent domain.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Aei Income & Growth Fund 25 LLC)
Partial Taking. If title to less than the whole there is a Taking of a portion of the Leased Property is condemned, and by Condemnation such that the Leased Property Facility is not thereby rendered Unsuitable for its Its Primary Intended Use, this Lease shall remain in effect, and to the extent required by the last sentence of Section 14.5 Lessor shall make available to Lessee the proceeds of any such Taking for the restoration of the Leased Property to substantially the same condition as existed immediately before such Taking or such other condition consistent with the Primary Intended Use as may be approved by Lessor in writing, which consent shall not Uneconomic be unreasonably withheld if such other condition would not, in Lessor's good faith judgment, result in a reduction in the value of the Leased Property or negatively affect the ability of Lessee to pay Rent hereunder as and when due. If, however, the Facility is thereby rendered Unsuitable for its Its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects shall have the right (a) to terminate this Lease take such proceeds of any Award as provided in Section 15.3shall be necessary and restore the Facility, Lessee at its cost own expense, to the extent possible, to substantially the same condition as existed immediately before the partial Taking or such other condition consistent with the Primary Intended Use as may be approved by Lessor in writing, which consent shall not be unreasonably 21 withheld if such other condition would not, in Lessor's good faith judgment, result in a reduction in the value of the Leased Property or negatively affect the ability of Lessee to pay Rent hereunder as and when due, or (b) to offer to substitute a new property pursuant to and in accordance with the terms provisions of this Lease and any Construction Services Agreement entered into in connection herewith, Article XX. Lessee shall with all reasonable dispatch, but only to the extent of any Award funds made available to exercise its option by giving Lessor notice thereof within 60 days after Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit receives notice of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorTaking. In the event Lessee does not make an offer or Lessor does not accept Lessee's offer to substitute for the Leased Property within 30 days after receipt of a the notice described in the preceding sentence, Lessee shall either (a) withdraw its offer to substitute for the Leased Property and within 30 days after the end of such 30-day period (or, if no offer is made, within 60 days following the date of such Taking) proceed to restore the Facility, to the extent possible, to substantially the same condition as existed immediately before the partial Taking that does or such other condition consistent with the Primary Intended Use as may be approved by Lessor in writing, which consent shall not be unreasonably withheld if such other condition would not, in Lessor's good faith judgment, result in a termination of this Lease, the Base Rent shall be abated reduction in the manner value of the Leased Property or negatively affect the ability of Lessee to pay Rent hereunder as and when due, or (b) within 60 days after the end of such 30-day period (or, if no offer is made, within 60 days following the date of such Taking), acquire the Leased Property from Lessor for a purchase price equal to the extent that is fair, just and equitable Minimum Repurchase Price of the Leased Property immediately prior to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.
Appears in 1 contract
Partial Taking. If title to the fee of less than the whole of the Leased Property is a Facility shall be so taken or condemned, and Lessees shall give Lessor Notice of such partial Taking or Condemnation within five (5) Business Days of the Leased Property occurrence thereof. If such Facility is not Unsuitable for its Primary Intended Use, and not Uneconomic still suitable for its Primary Intended Use, or if Lessee Lessees or Lessor is entitled shall be entitled, but neither elects shall not elect, to terminate this Lease as provided in Section 15.315.3 hereof, Lessee Lessees, at its their own cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewithexpense, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, dispatch restore the untaken portion of any Leased Improvements so that such Leased Improvements shall constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to such Condemnation or Taking. Lessees shall commence the Condemnationrestoration of the Facility within sixty (60) days of the partial Taking, and shall complete the restoration within one hundred eighty (180) days of such partial Taking. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part such portion of its the Award specifically allocated to such restorationas is made therefor, if any, together with severance and other damages awarded for the taken Leased Improvements; provided, however, the amount of such contribution will shall not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each As long as no Event of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however thatDefault has occurred hereunder, if such termination the Award is by Lesseein an amount less than Two Hundred Fifty Thousand Dollars ($250,000.00), Lessor shall have pay the rightsame to Lessees upon completion of such restoration. As long as no Event of Default has occurred hereunder, if the Award is in its sole discretionan amount more than Two Hundred Fifty Thousand Dollars ($250,000.00), Lessor shall make the Award available to nullify Lessees in the termination and keep this Lease same manner as is provided in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible Section 14.9 for all restoration costs Net Proceeds in excess of the AwardsTwo Hundred Fifty Thousand Dollars ($250,000.00). If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base The Minimum Rent shall not be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number reduced by reason of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable Lessees fail to agree upon make the amount of such abatement election or if Lessees elect not to restore, or if Lessees fail to commence or complete the restoration within thirty the time limits specified in this Section 15.5, then Lessees 60 62 shall be deemed to have elected to purchase the Leased Property for the Minimum Repurchase Price. Lessees shall complete the purchase within one hundred eighty (30180) days after of the such partial Taking. In any such purchase, Lessees shall receive a credit for the matter may portion of any Award retained by Lessor and Minimum Rent shall be submitted by either party reduced as set forth in Section 15.3 hereof and the Additional Charges attributable to arbitration under Section 22.2 hereof for resolution.such Facility shall cease..
Appears in 1 contract
Partial Taking. If title to less than the whole a portion of the Leased Property Premises is condemnedcondemned and Section 9.2 does not apply, the Lease shall continue on the following terms:
(1) Except as otherwise provided, Landlord shall be entitled to all of the proceeds of condemnation, and Tenant shall have no claim against Landlord as a result of the Leased Property condemnation.
(2) Landlord shall proceed as soon as reasonably possible to make such repairs and alterations to the Premises as are necessary to restore the remaining Premises to a condition as comparable as reasonably practicable to that existing at the time of the condemnation. If condemnation occurs and this Lease is not Unsuitable terminated, restoration work shall be commenced as soon as reasonably possible and thereafter shall proceed without interruption except for its Primary Intended Usework stoppages on account of labor disputes and matters beyond Landlord’s reasonable control, and not Uneconomic for its Primary Intended Usebe completed within ninety (90) days thereafter. If the Landlord fails to complete restoration within the time provided, or if Lessee or Lessor is entitled but neither elects Tenant may elect to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within after thirty (30) days after Lessee's Notice of terminationTenant’s notice to terminate is delivered to Landlord. Nevertheless, a Notice this Lease shall not terminate if Landlord substantially completes the restoration and delivers occupancy to Lessee of Lessor's unconditional, legally binding obligation tenant within the thirty (30) day notice period.
(3) After the date on which title vests in the condemning authority or an earlier date on which alterations or repairs are commenced by Landlord to be responsible for all restoration costs in excess restore the balance of the AwardsPremises in anticipation of taking, the rent shall be reduced in proportion to the reduction in value of the Premises as an economic unit on account of the partial taking. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee parties are unable to agree upon on the amount of such abatement within thirty the reduction of rent, each shall appoint one appraiser, and each appraiser shall appoint a third appraiser, and the appraisers shall determine the rental value.
(304) days after such If a portion of Landlord’s property not included in the Premises is taken, and severance damages are awarded on account of the Premises, or an award is made for detriment to the Premises as a result of activity by a public body not involving a physical taking of any portion of the Premises, this shall be regarded as a partial Takingcondemnation to which Section 9.1(1) and 9.1(3)apply, and the matter may rent shall be submitted by either party reduced to arbitration under Section 22.2 hereof for resolutionthe extent of reduction in rental value, if any, of the Premises as though a portion had been physically taken.
Appears in 1 contract
Partial Taking. If title to less than the whole substantially all of the Leased Property is Premises be so taken or condemned, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and the term hereof shall continue without abatement of the Rental or diminution of any Construction Services Agreement entered into in connection herewithof Tenant's obligations hereunder. Tenant, at its own cost and expense, whether or not the award or awards, if any, shall with all reasonable dispatchbe sufficient for the purpose, but only shall proceed diligently to repair and restore any remaining part of the Improvements on the Premises not so taken so that the latter shall be a complete, rentable, self-contained architectural unit in good condition and repair and reasonably comparable to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing it existed immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessorcondemnation. In the event of a partial Taking that does not result any taking or condemnation as in a termination of this LeaseSection provided, the Base Rent entire award or the aggregate of the separate awards to Landlord and Tenant, as the case may be, shall belong to and be the sole property of Landlord without any claim on the part of Tenant (Tenant hereby waiving all claims for any value for its leasehold or its interest in this Lease or in the Improvements or otherwise). Subject to the provisions and limitations in this Article, Landlord agrees to make available so much of that portion of the awards actually received and held by Landlord, if any, less all necessary and proper expenses paid or incurred by Landlord or the holder of any Mortgage in the condemnation proceedings, as may be necessary to pay the cost of repairing and restoring for use and occupancy the part of the Improvements not so taken. Such repairs and restoration shall be abated done in accordance with and subject to the provisions of Articles 7, 8 and 13 hereof. Payments to Tenant as aforesaid shall be disbursed in the manner set forth in Articles 7 and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking8 hereof. If Lessor the portion of the award made available by Landlord, as aforesaid, is insufficient for the purpose of paying for the repair and Lessee are unable restoration, Tenant shall nevertheless be required to agree upon repair and restore as aforesaid at its own cost and expense without any claim on the amount part of such Tenant. Any balance of the award remaining after repair and restoration is completed and paid for shall be paid to Landlord. In no event shall there be any abatement within thirty (30) days after such partial Taking, or reduction of Rental by reason of any taking or condemnation of the matter may be submitted by either party kind referred to arbitration under Section 22.2 hereof for resolutionin this Section.
Appears in 1 contract
Sources: Lease Agreement (Empire Resorts Inc)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section SECTION 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lease Agreement Ashford TRS Corporation Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements terms of any ground or building lease or Mortgage) lender mortgage, shall be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Partial Taking. If title a part of the leased premises is taken by condemnation but there is no substantial taking of the premises, Tenant shall continue to be bound by the terms, covenants, and conditions of this Lease. However, if the fair rental value of the remainder will be less than the whole rent required by this Lease, the minimum monthly rent and adjusted minimum monthly rent shall be reduced to an amount equal to the fair rental value as of the Leased Property date possession of the part is condemnedtaken by the public entity. If the part taken by condemnation constitutes a substantial taking of the leased premises, Tenant may elect to:
(a) Terminate this Lease and be absolved of obligations hereunder which have not accrued at the date possession is taken by the public entity; or
(b) Continue to occupy the remainder of the premises and remain bound by the terms, covenants and conditions of this Lease. If Tenant elects to continue to occupy the remainder, and if the Leased Property fair rental value of the remainder will be less than the rent required by this Lease, the minimum monthly rent and adjusted minimum monthly rent shall be reduced to the fair rental value as of the date possession of the part is not Unsuitable for taken by the public entity. Tenant shall give notice in writing of its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects election to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, hereunder within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardsdate possession of the part is taken by the public entity. If Tenant fails to give Landlord its written notice of termination within the time specified, this Lease shall remain in full force and effect except that the minimum monthly rental shall be reduced as provided in this section. If it continues to occupy the remainder, Tenant, whether or not the award upon the taking by condemnation is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time sufficient for the purpose, shall, at its expense, within a reasonable costs period of time, commence and complete restoration of the remainder of the leased premises as nearly as possible to its value, condition and character immediately prior to such restoration upon satisfaction of reasonable terms and conditionstaking; provided, and any excess Award funds remaining after such restorationhowever, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In that in the event case of a partial Taking that does taking for temporary use, Tenant shall not result in a termination be required to effect restoration until such taking is terminated. Tenant shall submit to Landlord its plans for the restoration of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement remainder within thirty ninety (3090) days after such partial Taking, of the matter may be submitted date possession of the part is taken by either party to arbitration under Section 22.2 hereof for resolutionthe public entity.
Appears in 1 contract
Sources: Lease Agreement
Partial Taking. If title Unless this Lease shall be terminated as aforesaid, Tenant shall, with reasonable promptness (subject to less than delays covered by matters beyond Tenant’s reasonable control), cause the whole remainder of the Leased Property is condemnedPremises to be repaired and restored to a complete architectural unit as nearly as commercially reasonably possible to their value, condition and character immediately prior to such taking, provided that Tenant shall comply with the provisions of Section 7.2 above. For such purposes, in the event that Tenant encumbers its interest in the Premises, the full amount of the Tenant’s Interest in the Award will be deposited with the Leasehold Mortgagee, and Leasehold Mortgagee shall disburse such Award to be applied towards the Leased Property is not Unsuitable for its Primary Intended Use, cost of such repairs and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided restorations in accordance with the procedures set forth in Section 15.37.3 above. Any portion of the Tenant’s Interest in the Award that shall not have been expended for such repairs or restorations shall be paid to Landlord in respect of Landlord’s Interest and to Tenant in respect of Tenant’s Interest. Notwithstanding the foregoing to the contrary, Lessee at in the event Tenant encumbers its cost and interest in the Premises, the Tenant’s Interest in the Award shall be disbursed in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount provisions of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that conditionleasehold mortgage, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the rightLeasehold Mortgagee may, in its sole reasonable discretion, to nullify direct that the termination and keep this Lease Tenant’s Interest in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject be applied to the requirements repayment of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time Tenant’s indebtedness to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution.Leasehold Mortgagee,
Appears in 1 contract
Sources: Ground Lease Agreement (CNL Healthcare Properties, Inc.)
Partial Taking. If title to less than the whole entire Leased Premises or any right appurtenant thereto shall be taken in any such Proceeding, this Lease shall terminate as to the portion of the Leased Property is condemnedPremises so taken upon the vesting of title in the taking authority pursuant to such Proceeding. If such partial taking should make it no longer economic, and in Lessee’s good faith judgment, to use the remainder of the Leased Property is Premises not Unsuitable so taken for the Permitted Uses, then, Lessee may, in its Primary Intended Usediscretion, and not Uneconomic for its Primary Intended Useby written notice to the Commission within sixty (60) days after the vesting of title of the portion of the Leased Premises so taken, or if Lessee or Lessor is entitled but neither elects subject to the consent of any Mortgagee, terminate this Lease effective as provided of a date not later than sixty (60) days after the date of the notice of termination. In the event there is no Mortgage in Section 15.3effect at the time of the Proceeding, Lessee at its cost and in accordance shall consult with the terms of this Lease Commission and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall consider in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute the Commission’s views as to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will whether or not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease. Upon such termination of this Lease, without in any way affecting any all Basic Rent, Impositions, Minimum Guaranteed Wharfage and other charges hereunder of all types shall be adjusted and prorated to the date of such termination and all other rights and obligations of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor parties hereunder (except under Sections 14.03 and 3.04) thereafter accruing shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess terminated as of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs date of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessortermination. In the event of a partial Taking that taking of a portion of the Leased Premises, if Lessee does not result in a termination terminate this Lease as to the remainder of this Leasethe Leased Premises, the Base Basic Rent and Impositions, shall be abated equitably reduced in the manner and proportion to the extent that is fairreduction in acreage resulting from such taking. Lessee shall be responsible for any necessary Restoration of the Leased Premises as required for Lessee’s use thereof, just and equitable the provisions and conditions in Article IV shall similarly apply to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionRestoration work.
Appears in 1 contract
Sources: Lease Agreement (Aventine Renewable Energy Holdings Inc)
Partial Taking. (a) If title to less than the whole of the Leased Property is condemned, and the Leased Property Taking is not Unsuitable for its Primary Intended Usea Substantial Taking or a Temporary Taking (a “Partial Taking”), and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided shall remain in Section 15.3, Lessee at its cost full force and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvementseffect; provided, however, that on the amount date of such contribution will not exceed such cost. If Partial Taking this Lease shall terminate as to the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any portion of the Other Leases in effectPrivate Facilities taken, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor which portion shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to no longer be responsible for all restoration costs in excess deemed part of the AwardsPremises. If this Lease is not terminated From and Lessee restores after the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs date of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this LeasePartial Taking, the Base Rent shall be abated reduced in an amount or proportionate to the manner and area of the Private Facilities Taken. Tenant shall promptly restore the Private Facilities to the extent that is fairreasonably practicable given the nature and scope of the Partial Taking and the requirements of applicable Law, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factorsa condition consistent with the Building Standards (the “Condemnation Restoration Work”).
(b) The Award for the Partial Taking shall be allocated as follows:
(i) If the Partial Taking includes any of the Private Facilities, the number Award shall first be applied to effectuate the Condemnation Restoration Work.
(ii) The balance of usable roomsthe Award (if any) shall be allocated between Tenant and Landlord as follows:
(A) Landlord shall be entitled to an amount equal to the Value of the Landlord’s Estate subject to the Partial Taking;
(B) Tenant shall be entitled to an amount equal to the Value of the Leasehold Interest subject to the Partial Taking; and
(C) except as otherwise set forth herein, the amount balance of square footagethe Award, if any, paid on a pari passu (i.e., share and share alike) basis to Landlord and Tenant.
(c) If there is a Leasehold Mortgagee, the revenues affected by such partial Taking and changes portion of the condemnation award to be applied to Condemnation Restoration Work shall be paid, reserved or disbursed in accordance with the procedures established in the Hotel's projected net operating income following such partial TakingLeasehold Mortgage, and ▇▇▇▇▇▇’s portion of the Award shall be paid in accordance with the provisions of the Leasehold Mortgage. If Lessor and Lessee are unable to agree upon no Leasehold Mortgage encumbers the amount Private Facilities at the time of such abatement within thirty (30) days after such partial the Partial Taking, then (i) if the matter may cost of the Condemnation Restoration Work, as reasonably estimated, is less than $1,000,000.00, the portion of the award needed to effect the Condemnation Restoration Work shall be submitted paid to Tenant, who shall effect the Condemnation Restoration Work, and (ii) if the cost of effecting the Condemnation restoration work is equal to or greater than $1,000,000.00, the portion of the Award needed for restoration of the Improvements shall be paid to a Depository, who shall hold and distribute such portion of the Award to Tenant as the restoration work progresses in the same manner as provided in Section 11.2 with respect to insurance proceeds and subject to the same conditions. The dollar amount threshold set forth in this provision shall be increased every tenth (10th) Calendar Year by either party application of the CPI.
(d) If the Partial Taking does not include any portion of the Private Facilities, the entire Award shall be paid to arbitration under Section 22.2 hereof the Landlord, except any Award payable to Tenant for resolutionloss or deprivation of Tenant’s Leasehold Interest and/or the Value of the Leasehold Estate.
Appears in 1 contract
Sources: Ground Lease Agreement
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects not to terminate this Lease as provided in Section SECTION 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements terms of any ground or building lease or Mortgage) lender mortgage, shall be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Partial Taking. Tenant’s Obligation to Restore. If title to less than the whole substantially all of the Leased Property is condemnedPremises shall be so taken, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and the Term shall continue as to the portion of the Premises remaining without abatement of Base Rent or Additional Costs or Impositions or diminution of any Construction Services Agreement entered into in connection herewithof Tenant’s obligations hereunder. Tenant, whether or not the award or awards, if any, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded sufficient for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, purpose shall (subject to Unavoidable Delays) proceed diligently to Restore any remaining part of the Project not so taken so that the latter shall be complete, operable and in good condition and repair in conformity with the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorSection 8.01. In the event of a partial Taking that does not result in a termination of taking pursuant to this LeaseSection, the Base Rent entire award attributable to such taking shall be abated deposited with the Depository for application to the cost of Restoration of the part of the Project not so taken. Subject to the provisions and limitations in this Article 9, Depository shall make available to Tenant as much of that portion of the award actually received and held by Depository, if any, less all necessary and proper expenses paid or incurred by Depository, the Mortgagee most senior in lien and the FCRHA in the condemnation proceedings, as may be necessary to pay the cost of Restoration of the part of the Project remaining. Such Restoration shall be done in accordance with and subject to the provisions of Article 8. Payments to Tenant as aforesaid shall be disbursed in the manner and subject to the extent conditions set forth in Article 8. Any balance of the award held by Depository and any cash and the proceeds of any security deposited with Depository pursuant to Section 9.04 remaining after completion of the Restoration shall be paid to Tenant or its Mortgagee, if any. Each of the parties shall execute any and all documents that is fair, just and equitable may be reasonably required in order to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected facilitate collection by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount them of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionawards.
Appears in 1 contract
Sources: Lease Agreement
Partial Taking. If title Subject to any Loan Documents, in case of a Taking of less than the whole all of the Leased Property is condemnedProperty, and Lessor shall receive the entire award for the Taking and, except as specifically set forth in this Section, no claim or demand of any kind shall be made by Master Tenant against Lessor or any other party who could, by virtue of a claim against it, make a claim against Lessor by reason of such Taking.
(a) In the case of a Taking of a portion, but less than all, of the Leased Property, Lessee shall determine, in Lessee’s reasonable discretion, whether the remaining Project (after Restoration referred to in (c), below (i) can be used for the Primary Intended Use and (ii) will allow Lessee to complete the Restoration for an amount not to exceed the proceeds from the Taking. If it is determined by Lessee that the remaining Leased Property is cannot Unsuitable be used for its the Primary Intended Use, then and in such event this Lease shall terminate as of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination. If it is determined that Lessee cannot Uneconomic complete the Restoration for its Primary Intended Use, an amount that is less than or if equal to the proceeds from the Taking then and in such event Lessee or Lessor is entitled but neither elects can elect to terminate this Lease as provided of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination; provided, however, that if there is at least 24 months remaining in Section 15.3the Term, Lessor may agree to pay the excess Restoration expenses in which case this Lease shall not terminate and Lessee at its cost and shall undertake the Restoration of the Project in accordance with the terms of this Lease and any Construction Services Agreement entered into (c), below.
(b) If, in connection herewith, shall with the case of a Taking of less than all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationLeased Property, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated in accordance with the provisions of (a) above, this Lease shall continue in full force and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor effect as aforesaid, shall (subject to the requirements remaining portion of the Leased Property without any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result reduction in a termination of this Lease, the Base Rent and Percentage Rent, except as expressly provided in Section 15.2. No such partial taking shall operate as or be abated in deemed an eviction of Lessee from that portion of the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues Leased Property not affected by such partial Taking or in any way terminate, diminish, suspend, ▇▇▇▇▇ or impair the obligation of Lessee to observe and changes in perform fully all the Hotel's projected net operating income following such partial Taking. If Lessor and covenants of this Lease on the part of Lessee are unable to agree upon be performed with respect to the amount remainder of such abatement within thirty (30) days after such the Leased property unaffected by the partial Taking, except as to any reduction (if any) in the matter may Base Rent and Percentage Rent as expressly provided in Section 15.3.
(c) If, in the case of a Taking of less than all of the Leased Property, this Lease is not terminated in accordance with the provisions of (a) above, Lessee shall, prior to the expiration of the Term of this Lease, commence and proceed with reasonable diligence to complete the Restoration provided, however, that Lessor shall, in this case, make the award in the Condemnation Proceeds and, in the case of (a) above, such award plus any excess funds due from Lessor, available to Lessee to be submitted by either party utilized for Restoration of the Leased Property in the following manner, and subject to arbitration under Section 22.2 hereof for resolution.the following conditions and provisions. Lessor shall be entitled to receive and retain the remainder of the award not needed to complete the Restoration (the “Surplus”)
Appears in 1 contract
Sources: Hotel Lease Agreement (Moody National REIT I, Inc.)
Partial Taking. If title to there is less than the whole a constructive total taking of the Leased Property is condemnedProject and the Retrofit Equipment, this Lease shall terminate as to the portion of the Project and the Retrofit Equipment so taken, and from and after the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with date of such taking the terms of this Lease and any Construction Services Agreement entered into in connection herewith, Annual Rent shall with all reasonable dispatch, but only to be reduced by just proportion. Until the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit amount of the same general character and condition (as nearly as may be possible under reduction in Annual Rent shall have been determined, Tenant shall continue to pay to Landlord the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationAnnual Rent provided herein, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; providedit being understood, however, that when the amount of the abatement is determined, Landlord shall refund to Tenant the amount of Annual Rent paid from the date of the taking which is in excess of the amount to which the Annual Rent has been reduced by such contribution will not exceed abatement. Subject to the provisions of the of any such costtaking, Tenant shall promptly restore, repair, replace and rebuild the remaining portion of the Project and the Retrofit Equipment to substantially the former condition, and shall restore Tenant's Plant and the Retrofit Equipment, if affected by the taking in order to perform the function originally intended. If In the Awards are not adequate event the amount of proceeds obtained from such taking is insufficient to restore Tenant's Plant and the Hotel Retrofit Equipment as above provided, then Tenant shall not be required to restore and a total taking shall be deemed to have occurred, provided that condition, each of Lessor Tenant shall be required to clear the Premises and Lessee shall have restore the right to terminate this Lease, without in any way affecting any of Premises (or the Other Leases in effect, by giving Notice remainder thereof) to the other; providedcondition in which it existed on the Commencement Date within a reasonable period after such taking, however that, if such termination is by Lessee, Lessor but not to exceed nine (9) months thereafter. Tenant shall have the right, in provide written notice to Landlord of its sole discretion, to nullify the termination and keep this Lease in full force by providing, election within thirty (30) days after Lessee's Notice final determination that the proceeds of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to such taking will be responsible for all restoration costs in excess of less than the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for and, in any sums advanced by Lessor hereunderevent, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty ninety (3090) days after such partial Takingtaking, otherwise it will be deemed that Tenant has elected to restore as provided herein. The award or awards payable for any taking of the matter type described in this Section 9.02, less than reasonable costs of determination of the amount thereof (such net amount being hereinafter called the "Condemnation Proceeds"), shall be paid to Tenant and Landlord as their interests may be submitted by either party to arbitration under Section 22.2 hereof for resolutionappear.
Appears in 1 contract
Partial Taking. If title to less than the whole any portion of the any Leased Property is condemnedtaken by Condemnation, and the this Lease shall remain in effect as to such Leased Property if the Facility(ies) located thereon is not thereby rendered Unsuitable for its For Its Primary Intended Use as reasonably determined by Landlord, but if the Facility(ies) is/are thereby rendered Unsuitable For Its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease shall terminate as provided to such Leased Property on the Date of Taking, in which event the provisions of Section 15.3, Lessee at its cost and in accordance with 17.9 governing the terms deletion of one or more Leased Properties from this Lease and any Construction Services Agreement entered into in connection herewithupon a Condemnation shall apply. If, shall with all reasonable dispatch, but only to the extent as a result of any Award funds made available to Lessee and any other sums advanced such partial taking by Lessor pursuant to this SectionCondemnation, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated as provided above, Tenant’s obligation to make payments of Rent and Lessee restores to pay all other charges required under this Lease shall remain unabated during the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of Term notwithstanding such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by LessorCondemnation. In the event of a any partial Taking that does not result in a termination taking by Condemnation of this Leaseany Leased Property, the Base Rent entire Award shall belong to and be paid to Landlord, except that, subject to the rights of any Facility Mortgagees, Tenant shall be abated in entitled to receive from the manner Award, if and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factorssuch Award specifically includes such item, the following: (i) a sum specifically attributable to Tenant’s Personal Property and any reasonable removal and relocation costs included in the Award; and (ii) a sum specifically attributable to the cost of restoring the Leased Property in accordance with Section 16.4 hereof; and (iii) a sum specifically attributable to the interruption of business operations, which sum, if and to the extent received by Landlord, shall be credited against payments of Rent and other charges due from Tenant to Landlord under this Lease unless the taking permanently removes from operation a material number of usable roomsunits in the Facility on any Leased Property, in which event, from and after such taking, the amount of square footageFixed Rent hereunder for such Leased Property shall be equitably abated, the revenues affected as determined by such partial Taking and changes Landlord, in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of its reasonable discretion, provided that in no event shall any such abatement within thirty exceed (30on an annual basis) days after an amount in excess of eight percent of the condemnation award retained by Landlord with respect to such partial Taking, the matter may be submitted by either party taking and not applied to arbitration under Section 22.2 hereof for resolutionrepair or restore such Facility.
Appears in 1 contract
Sources: Master Lease Agreement (Capital Senior Living Corp)
Partial Taking. If title to less than the whole any portion of the Leased Property Premises is condemnedtaken by condemnation, this Lease shall remain in effect, except Tenant can elect to terminate this Lease if the taking is substantial; that is, if the remaining portion of the Premises is rendered unsuitable for Tenant's continued use of the Premises. Landlord shall notify Tenant that there is going to be a taking within a reasonable time after receipt of service of summons and complaint. If Tenant elects to terminate this Lease, Tenant must exercise its right to terminate pursuant to this paragraph by giving written notice to Landlord within thirty (30) days after receipt of notice of the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither taking. If Tenant elects to terminate this Lease as provided in Section 15.3this paragraph, Lessee at its cost Tenant shall also notify Landlord of the date of termination, which date shall not be earlier than thirty (30) days following receipt of written If any portion of the Premises is taken by condemnation, and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease remains in full force and effect, on the date of taking, monthly rent shall be reduced by providing, an amount that is in the same ratio to rent as the value of the area of the portion of the Premises taken bears to the total value of the Premises immediately before the date of the taking. If within thirty (30) days after Lesseethe date that the nature and extent of the taking are finally determined Landlord notifies Tenant that Landlord, at its cost, will add on to the remaining Premises so that the area and the approximate layout of the Premises will be substantially the same after the date of taking as they were before the date of taking, and Landlord commences the restoration immediately and completes the restoration within one hundred twenty (120) days after Landlord notifies Tenant, then the Lease shall not be subject to termination by Tenant and shall continue in full force and effect. Rent shall be abated or reduced during the period from the date of taking until the completion of restoration based upon the extent to which the restoration interferes with Tenant's Notice use of terminationthe Premises; and, a Notice after completion of restoration, rent shall be restored to Lessee of Lessor's unconditionalprecondemnation levels. Notwithstanding any other provision contained in this paragraph, legally binding obligation to Landlord shall not be responsible for all or obligated to, in the course of any restoration costs in excess work hereunder, replace or repair any Tenant improvements, fixtures and/or equipment of Tenant or any subtenant. Both Landlord and Tenant hereby waive the Awards. If provisions of Code of Civil Procedure Section 1265.130, which allow either party to petition the Superior Court to terminate this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In in the event of a partial Taking that does not result in a termination taking of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionPremises.
Appears in 1 contract
Sources: Assignment Agreement (Lease) (Valley National Corp /De/)
Partial Taking. If title to less than the whole of the Leased Property is condemned, and the Leased Property is not Unsuitable still suitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.315.3 above, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds condemnation awards made available to Lessee and any other sums advanced by Lessor pursuant to this Sectionthe next sentence, restore the untaken portion of any Leased Improvements so that such Leased Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards condemnation awards are not adequate to restore the Hotel Facility to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases other leases in effecteffect between Lessor and Lessee, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awardscondemnation awards. If this Lease is not terminated and Lessee restores the HotelFacility, the Award fundscondemnation awards, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held in trust by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds awards remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, restoration shall be retained by Lessor. In Lessor unless the partial condemnation materially impairs the operations or financial performance of the Facility, in which latter event of a partial Taking that does not result in a termination of this Lease, the Base Rent award shall be abated equitably apportioned between Lessor and Lessee in proportion to the manner then fair market values of the respective estates and interests of Lessor and Lessee in and to the extent that is fair, just Leased Property and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionthis Lease.
Appears in 1 contract
Sources: Lease Agreement (Equity Inns Inc)
Partial Taking. (a) If title to less than the whole only a part of the Leased Property is Premises shall be so taken or condemned, and the Leased Property Lease is not Unsuitable for terminated pursuant to Section 8.1 hereof, Tenant, at its Primary Intended Usesole cost and expense, shall repair and restore the Leased Premises and all Improvements thereon, and not Uneconomic Landlord shall make the Award available to Tenant for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and restoration in accordance with the terms disbursement conditions of Section 7.3, provided, however, that Tenant shall have no obligation to repair or restore the Leased Premises or any Improvements located thereon if Landlord or its lender fails to make any Award available for restoration of the Leased Premises (and in such event the Lease shall terminate). If the Leased Premises is rendered untenantable in whole or in part, an equitable abatement in Rent shall be allowed from the date of the taking or condemnation. If the Lease is not terminated as provided in the first sentence of this Lease Section 8.2, Tenant shall promptly and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only diligently proceed to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute make a complete architectural unit of the same general character and condition (as nearly as may be possible under remainder of the circumstances) as Improvements, complying with the disbursement conditions set forth in Section 7.3. For such purpose, to the extent the amount of the Award relating to the Improvements existing is less than Twenty Five Million Dollars ($25,000,000), Landlord shall immediately prior pay the full amount of the Award to Tenant for such restoration. To the Condemnation. Lessor shall in good faith seek a fair and equitable allocation extent the amount of any the Award among restoration, taken Improvements and other elements. Lessor will contribute to exceeds the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of Tenant shall return such contribution will not exceed such cost. If the Awards are not adequate excess to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any Landlord upon full completion of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty restoration work.
(30b) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination taking, this Lease shall terminate as to the portion of the Leased Premises so taken and the Base Rent payable for the balance of the term of this LeaseLease shall be equitably reduced by a sum equivalent to the portion of the Facility taken, such reduction to be effective as of the date of Landlord’s receipt of such Award. Until the amount of the reduction of the Base Rent shall be abated have been determined, Tenant shall continue to pay to Landlord the Base Rent provided for in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolution4.1.
Appears in 1 contract
Sources: Industrial Facility Lease (FreightCar America, Inc.)
Partial Taking. If title to less than the whole a portion of the Leased Property Premises is condemnedcondemned and Section 9.2 does not apply, the lease shall continue on the following terms:
(1) Except as otherwise provided, Landlord shall be entitled to all of the proceeds of condemnation, and Tenant shall have no claim against Landlord as a result of the Leased Property condemnation.
(2) Landlord shall proceed as soon as reasonably possible to make such repairs and alterations to the Premises as are necessary to restore the remaining Premises to a condition as comparable as reasonably practicable to that existing at the time of the condemnation. If condemnation occurs and this Lease is not Unsuitable terminated, restoration work shall be commenced as soon as reasonably possible and thereafter shall proceed without interruption except for its Primary Intended Usework stoppages on account of labor disputes and matters beyond Landlord's reasonable control, and not Uneconomic for its Primary Intended Usebe completed within ninety (90) days thereafter. If the Landlord fails to complete restoration within the time provided, or if Lessee or Lessor is entitled but neither elects Tenant may elect to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within after thirty (30) days after LesseeTenant's Notice of terminationnotice to terminate is delivered to Landlord. Nevertheless, a Notice this Lease shall not terminate if Landlord substantially completes the restoration and delivers occupancy to Lessee of Lessor's unconditionalTenant within the thirty (30) day notice period. ▇▇▇▇▇▇▇▇▇, legally binding obligation ▇▇▇▇▇▇, TWEET, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(3) After the date on which title vests in the condemning authority or an earlier date on which alterations or repairs are commenced by Landlord to be responsible for all restoration costs in excess restore the balance of the AwardsPremises in anticipation of taking, the rent shall be reduced in proportion to the reduction in value of the Premises as an economic unit on account of the partial taking. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee parties are unable to agree upon on the amount of such abatement within thirty the reduction of rent, each shall appoint one appraiser, and each appraiser shall appoint a third appraiser, and the appraisers shall determine the rental value.
(304) days after such If a portion of Landlord's property not included in the Premises is taken, and severance damages are awarded on account of the Premises, or an award is made for detriment to the Premises as a result of activity by a public body not involving a physical taking of any portion of the Premises, this shall be regarded as a partial Takingcondemnation to which Sections 9.1
(1) and 9.1(3) apply, and the matter may rent shall be submitted by either party reduced to arbitration under Section 22.2 hereof for resolutionthe extent of reduction in rental value, if any, of the Premises as though a portion had been physically taken.
Appears in 1 contract
Partial Taking. (a) If title the Taking is not a Substantial Taking or a Temporary Taking (a “Partial Taking”), this Lease shall remain in full force and effect, provided, however, that on the date of such Partial Taking this Lease shall terminate as to the portion of the Private Facilities taken, which portion shall no longer be deemed part of the Premises. Tenant shall promptly restore the Private Facilities to the extent reasonably practicable given the nature and scope of the Partial Taking and the requirements of applicable Law, to a condition consistent with the Building Standards (the “Condemnation Restoration Work”).
(b) The Award for the Partial Taking shall be allocated as follows:
(i) If the Partial Taking includes any of the Private Facilities, the Award shall first be applied to effectuate the Condemnation Restoration Work.
(ii) The balance of the Award (if any) shall be allocated between Tenant and Landlord as follows:
(A) Landlord shall be entitled to an amount equal to the Value of the Landlord’s Estate subject to the Partial Taking;
(B) Tenant shall be entitled to an amount equal to the Value of the Leasehold Interest subject to the Partial Taking; and
(C) except as otherwise set forth herein, the balance of the Award, if any, paid on a pari passu (i.e., share and share alike) basis to Landlord and Tenant.
(c) If there is a Leasehold Mortgagee, the portion of the condemnation award to be applied to Condemnation Restoration Work shall be paid, reserved or disbursed in accordance with the procedures established in the Leasehold Mortgage, and ▇▇▇▇▇▇’s portion of the Award shall be paid in accordance with the provisions of the Leasehold Mortgage. If no Leasehold Mortgage encumbers the Private Facilities at the time of the Partial Taking, then (i) if the cost of the Condemnation Restoration Work, as reasonably estimated, is less than $1,000,000.00, the whole portion of the Leased Property is condemnedaward needed to effect the Condemnation Restoration Work shall be paid to Tenant, who shall effect the Condemnation Restoration Work, and (ii) if the Leased Property cost of effecting the Condemnation Restoration Work is not Unsuitable equal to or greater than $1,000,000.00, the portion of the Award needed for its Primary Intended Userestoration of the Improvements shall be paid to a Depository, who shall hold and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects distribute such portion of the Award to terminate this Lease Tenant as the restoration work progresses in the same manner as provided in Section 15.3, Lessee at its cost 10.2 with respect to insurance proceeds and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and same conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, . The dollar amount threshold set forth in this provision shall be retained increased every tenth Calendar Year by Lessor. In application of the event of a partial preceding ten-year cumulative compound change in the CPI.
(d) If the Partial Taking that does not result in a termination include any portion of this Leasethe Private Facilities, the Base Rent entire Award shall be abated in the manner and paid to the extent that is fairLandlord, just and equitable except any Award payable to both Lessee and Lessor, taking into consideration, among other relevant factors, Tenant for loss or deprivation of Tenant’s Leasehold Interest and/or the number Value of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionLeasehold Estate.
Appears in 1 contract
Sources: Ground Lease Agreement
Partial Taking. If title to less than the whole such a material portion of the Leased Property Premises shall be taken or condemned, as aforesaid, this Lease shall continue and shall remain in full force and effect; provided, however, that the Base Rent hereunder shall thereafter be reduced in an equitable manner in proportion to the reduction in value of the Premises for Tenant's use. The Base Rent shall be reduced to the product obtained when the Base Rent otherwise payable hereunder is condemnedmultiplied by a fraction, the numerator of which shall be the total floor area of the Building (expressed in square feet) remaining following the condemnation and restoration, and the Leased Property is not Unsuitable for its Primary Intended Usedenominator of which shall be the total floor area thereof (expressed in square feet) upon the Commencement Date. Such reduction in Base Rent shall first become effective as of the first day of the month next succeeding the date of vesting of title in the condemning authority, and shall not Uneconomic for its Primary Intended Usein any event diminish, reduce or ▇▇▇▇▇ the Impositions, Additional Rent and other charges payable hereunder by Tenant. In the event of such a partial condemnation, Landlord shall promptly make, or if Lessee cause to be made, all demolition, repairs, reconstruction, restoration, replacement or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3rebuilding and all other work necessary, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under practicable, to restore the circumstances) as Building Elements to the Improvements existing utility and condition immediately prior to such taking (and including any new parking areas and/or demolition of the Condemnationexisting Building, to the extent the same may be reasonably necessary to accommodate Tenant's use of the Premises after the condemnation). Lessor The net proceeds of the award in respect of such partial taking or condemnation, after the payment of all fees and expenses incurred in connection with the collection of such award, shall be paid over to Landlord, and shall be held in good faith seek a fair trust and equitable allocation shall be made available to Landlord as work progresses (subject to periodic delivery of any Award among restoration, taken Improvements and other elements. Lessor will contribute appropriate architect's certifications as to the cost of restoration that part the required work remaining until full completion, and title company certifications as to the absence of its Award specifically allocated any liens, or encumbrances relating to such restoration, together with severance and other damages awarded work) for use in making payments when due for the Improvements; provideddemolition, howeverrepairs, restoration or replacement required under this Article 14, and pursuant to such controls and subject to such approvals as Landlord or Landlord's mortgagee shall reasonably require. If such proceeds shall be insufficient to pay the entire cost of such work, Tenant agrees to pay the deficiency. At any time after the completion of such work, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any balance of the Other Leases in effect, by giving Notice proceeds not theretofore used pursuant to the other; provided, however that, if such termination is by Lessee, Lessor foregoing provisions of this section shall have be paid to Landlord or Landlord's mortgagee as their interests shall appear. During any period in which the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess Premises or any portion of the Awards. If this Lease Premises is not terminated and Lessee restores made untenantable as a result of the HotelCondemnation or the work being performed by Landlord, all Rent will be abated for the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject period of time untenantable in proportion to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionfoot area untenantable.
Appears in 1 contract
Sources: Lease (Pemstar Inc)
Partial Taking. If title to less than the whole a portion of the Leased Property Premises is condemnedcondemned and Section 9.2 does not apply, the lease shall continue on the following terms:
(1) Except as otherwise provided, Landlord shall be entitled to all of the proceeds of condemnation, and Tenant shall have no claim against Landlord as a result of the Leased Property condemnation.
(2) Landlord shall proceed as soon as reasonably possible to make such repairs and alterations to the Premises as are necessary to restore the remaining Premises to a condition as comparable as reasonably practicable to that existing at the time of the condemnation. If condemnation occurs and this Lease is not Unsuitable terminated, restoration work shall be commenced as soon as reasonably possible and thereafter shall proceed without interruption except for its Primary Intended Usework stoppages on account of labor disputes and matters beyond Landlord's reasonable control, and not Uneconomic for its Primary Intended Usebe completed within ninety (90) days thereafter. If the Landlord fails to complete restoration within the time provided, or if Lessee or Lessor is entitled but neither elects Tenant may elect to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within after thirty (30) days after LesseeTenant's Notice of terminationnotice to terminate is delivered to Landlord. Nevertheless, a Notice this Lease shall not terminate if Landlord substantially completes the restoration and delivers occupancy to Lessee of Lessor's unconditional, legally binding obligation Tenant within the thirty (30) day notice period.
(3) After the date on which title vests in the condemning authority or an earlier date on which alterations or repairs are commenced by Landlord to be responsible for all restoration costs in excess restore the balance of the AwardsPremises in anticipation of taking, the rent shall be reduced in proportion to the reduction in value of the Premises as an economic unit on account of the partial taking. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee parties are unable to agree upon on the amount of such abatement within thirty the reduction of rent, each shall appoint one appraiser, and each appraiser shall appoint a third appraiser, and the appraisers shall determine the rental value.
(304) days after such If a portion of Landlord's property not included in the Premises is taken, and severance damages are awarded on account of the Premises, or an award is made for detriment to the Premises as a result of activity by a public body not involving a physical taking of any portion of the Premises, this shall be regarded as a partial Takingcondemnation to which Sections 9.1
(1) and 9.1(3) apply, and the matter may rent shall be submitted by either party reduced to arbitration under Section 22.2 hereof for resolutionthe extent of reduction in rental value, if any, of the Premises as though a portion had been physically taken.
Appears in 1 contract
Partial Taking. If title to less In the event that (i) more than the whole 25% of the Leased Property Gross Leasable Area of the Premises, including the parking area serving the Premises, is condemnedtaken under the power of eminent domain by any public or quasi-public authority, and (ii) by reason of any appropriation or taking, regardless of the Leased Property amount so taken, the remainder of the Premises is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Useone undivided parcel of property, or if Lessee or Lessor is entitled but neither elects to terminate this Lease (iii) as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent a result of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Sectiontaking, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit regardless of the same general character and condition (as nearly as may be possible under amount so taken, the circumstances) as remainder of the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded Premises is rendered unsuitable for the Improvements; providedcontinued operation of Tenant's business, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee either Landlord or Tenant shall have the right to terminate this Lease, without in any way affecting any Lease as of the Other Leases in effectdate Tenant is required to vacate a portion of the Premises, by giving Notice to the other; provided, however that, if other notice of such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within election witnin thirty (30) days after Lessee's Notice receipt by Tenant from Landlord of written notice that the Premises have been so appropriated or taken. Landlord agrees immediately after learning of any appropriation or taking to give to Tenant notice in writing thereof. In the event of such termination, upon Tenant's payment to Landlord of all rents accruing through such date, both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder. If both parties elect not to terminate this Lease, Tenant shall remain in that portion of the Premises not so taken and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion of the Premises as soon ?S possible to a Notice complete unit of like quality and character as existed prior to Lessee such taking. Landlord agrees to reimburse Tenant for the cost of Lessorrestoration, but in no event shall Landlord's unconditional, legally binding obligation to be responsible reimburse Tenant for all restoration costs in excess the cost of restoring the remaining portion of the AwardsPremises exceed the amount of award of compensation that Landlord receives for a partial taking of that portion of the Premises resulting in the need for restoration. If So long as this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to provided above, there shall be an equitable adjustment of the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number rent payable by Tenant hereunder by reason of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in taking. Tenant hereby waives any statutory rights of termination which may arise by reason of any pal1ial taking of the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon Premises under the amount power of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutioneminent domain.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Aei Income & Growth Fund 23 LLC)
Partial Taking. If title to less in the event that (i) more than the whole 25% of the Leased Property Gross Leasable Area of the Premises, including the parking area serving the Premises, is condemnedtaken under the power of eminent domain by any public or quasi-public authority, and (ii) by reason of any appropriation or taking, regardless of the Leased Property amount so taken, the remainder of the Premises is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Useone undivided parcel of property, or if Lessee or Lessor is entitled but neither elects to terminate this Lease (iii) as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent a result of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Sectiontaking, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit regardless of the same general character and condition (as nearly as may be possible under amount so taken, the circumstances) as remainder of the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded Premises is rendered unsuitable for the Improvements; providedcontinued operation of Tenant's business, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee either Landlord or Tenant shall have the right to terminate this Lease, without in any way affecting any Lease as of the Other Leases in effectdate Tenant is required to vacate a portion of the Premises, by giving Notice to the other; provided, however that, if other notice of such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, election within thirty (30) days after Lessee's Notice receipt by Tenant from Landlord of written notice that the Premises have been so appropriated or taken. Landlord agrees immediately after learning of any appropriation or taking to give to Tenant notice in writing thereof. In the event of such termination, upon Tenant's payment to Landlord of all rents accruing through such date, both Landlord and Tenant shall thereupon be released from any liability thereafter accruing hereunder. If both parties elect not to terminate this Lease, Tenant shall remain in that portion of the Premises not so taken and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion of the Premises as soon as possible to a Notice complete unit of like quality and character as existed prior to Lessee such taking. Landlord agrees to reimburse Tenant for the cost of Lessorrestoration, but in no event shall Landlord's unconditional, legally binding obligation to be responsible reimburse Tenant for all restoration costs in excess the cost of restoring the remaining portion of the AwardsPremises exceed the amount of award of compensation that Landlord receives for a partial taking of that portion of the Premises resulting in the need for restoration. If So long as this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to provided above, there shall be an equitable adjustment of the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number rent payable by Tenant hereunder by reason of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in taking. Tenant hereby waives any statutory rights of termination which may arise by reason of any partial taking of the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon Premises under the amount power of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutioneminent domain.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Aei Net Lease Income & Growth Fund Xx Limited Partnership)
Partial Taking. If title to less than the whole such a material portion of the Leased Property Premises shall be taken or condemned, as aforesaid, this Lease shall continue and shall remain in full force and effect; provided, however, that the Base Rent hereunder shall thereafter be reduced to the product obtained when the Base Rent otherwise payable hereunder is condemnedmultiplied by a fraction, the numerator of which shall be the total floor area of the Building (expressed in square feet) remaining following the condemnation, and the Leased Property is not Unsuitable for its Primary Intended Usedenominator of which shall be the total floor area thereof (expressed in square feet) upon the Commencement Date. Such reduction in Base Rent shall first become effective as of the first day of the month next succeeding the date of vesting of title in the condemning authority, and shall not Uneconomic for its Primary Intended Usein any event diminish, reduce or ▇▇▇▇▇ the Impositions, [Percentage Rent,] Additional Rent and other charges payable hereunder by Tenant. In the event of such a partial condemnation, Tenant shall promptly make, or cause to be made, all demolition, repairs, reconstruction, restoration, replacement or rebuilding and all other work necessary, as nearly as may be practicable, to restore the Premises to the value, rentability, utility and condition immediately prior to such taking (with such alterations, additions and improvements, if Lessee or Lessor is entitled but neither elects to terminate this Lease any, as provided in Section 15.3, Lessee at its cost may be constructed under and in accordance with the terms provisions of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but Article 10). Subject only to the extent provisions of any Award funds mortgage to which this Lease is or shall be subordinate, the net proceeds of the award in respect of such partial taking or condemnation, after the payment of all fees and expenses incurred in connection with the collection of such award, shall be paid over to Landlord, and shall be held in trust by Landlord or Landlord's designee and shall be made available to Lessee and any other sums advanced by Lessor pursuant Tenant as work progresses (subject to this Section, restore the untaken portion periodic delivery to Landlord of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (appropriate architect's certifications as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part the required work remaining until full completion, and title company certifications as to the absence of its Award specifically allocated any liens, or encumbrances relating to such restoration, together with severance and other damages awarded work) for use in making payments when due for the Improvements; provideddemolition, howeverrepairs, restoration or replacement required under this Article 14, and pursuant to such controls and subject to such approvals as Landlord or Landlord's mortgagee shall require. If such proceeds shall be insufficient to pay the entire cost of such work, Tenant agrees to pay the deficiency. At any time after the completion of such work, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any balance of the Other Leases in effect, by giving Notice proceeds not theretofore used pursuant to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep foregoing provisions of this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, section shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent paid to Landlord or Landlord's mortgagee as their interests shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionappear.
Appears in 1 contract
Sources: Lease (Dotronix Inc)
Partial Taking. If title to In the event of a permanent Taking of less than the whole all of the Leased Property is condemnedPremises (a “Partial Taking”), if Tenant reasonably determines that the continued development, use or occupancy of the remainder of the Premises by Tenant cannot reasonably be made to be economically viable, structurally sound, then Tenant may terminate this Lease, and the Leased Property is not Unsuitable for its Primary Intended Use, and not Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease as provided in Section 15.3, Lessee at its cost and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken Tenant’s portion of the Award shall be paid to Tenant, provided that any Improvements so that such Improvements constitute a complete architectural unit and all obligations of Tenant have been fully and completely complied with by ▇▇▇▇▇▇ as of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation date of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such costsaid Partial Taking. If the Awards are Tenant shall not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right elect to terminate this Lease, without in any way affecting any Tenant shall be entitled to a reduction of rent of such amount as shall be just and equitable. Subject to the terms of the Other Leases in effect, by giving Notice to the other; provided, however thatPermitted Leasehold Mortgages, if such termination there is by Lessee, Lessor shall have a Partial Taking and the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that Tenant does not result in a termination of terminate this Lease, the Base Rent Tenant shall be abated in entitled to receive and retain an equitable portion of the manner Award and shall apply such portion of the Award necessary to repair or restore the Premises or the Improvements as nearly as possible to the extent that condition the Premises or the Improvements were in immediately prior to such Partial Taking. Subject to the terms of the Permitted Leasehold Mortgages, if there is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factorsa Partial Taking which affects the use of the Premises after the term hereof, the number Award shall be apportioned between the Tenant and the Landlord based on the ratio of usable roomsthe remaining term hereof and the remaining expected useful life of the Premises following the term hereof. Subject to the terms of the Permitted Leasehold Mortgages, notwithstanding any provision herein to the contrary, the amount Landlord shall be entitled to receive and retain any portion of square footagethe Award apportioned to the land upon which the Improvements are located. Should such award be insufficient to accomplish the restoration, such additional costs shall be paid by ▇▇▇▇▇▇. Notwithstanding any provision of the Lease or by operation of law that leasehold improvements may be or shall become the property of Landlord at the termination of the Lease, the revenues affected loss of the building and other improvements paid for by ▇▇▇▇▇▇ and such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter additional relief as may be submitted provided by either party law shall be the basis of Tenant's damages against the condemning authority if a separate claim therefore is allowable under applicable law, or the basis of Tenant's damages to arbitration under Section 22.2 hereof for resolutiona portion of the total award if only one award is made.
Appears in 1 contract
Sources: Ground Lease
Partial Taking. If title Subject to any Loan Documents, in case of a Taking of less than the whole all of the Leased Property is condemnedProperty, and Lessor shall receive the entire award for the Taking and, except as specifically set forth in this Section, no claim or demand of any kind shall be made by Master Tenant against Lessor or any other party who could, by virtue of a claim against it, make a claim against Lessor by reason of such Taking.
(a) In the case of a Taking of a portion, but less than all, of the Leased Property, Lessee shall determine, in Lessee’s reasonable discretion, whether the remaining Project (after Restoration referred to in (c), below (i) can be used for the Primary Intended Use and (ii) will allow Lessee to complete the Restoration for an amount not to exceed the proceeds from the Taking. If it is determined by Lessee that the remaining Leased Property is cannot Unsuitable be used for its the Primary Intended Use, then and in such event this Lease shall terminate as of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination. If it is determined that Lessee cannot Uneconomic complete the Restoration for its Primary Intended Use, an amount that is less than or if equal to the proceeds from the Taking then and in such event Lessee or Lessor is entitled but neither elects can elect to terminate this Lease as provided of the Vesting Date and the Base Rent, Percentage Rent and Additional Charges shall be apportioned and paid to the date of termination and no other claim or demand of any kind shall be made by Lessor against Lessee by reason of such termination; provided, however, that if there is at least 24 months remaining in Section 15.3the Term, Lessor may agree to pay the excess Restoration expenses in which case this Lease shall not terminate and Lessee at its cost and shall undertake the Restoration of the Project in accordance with the terms of this Lease and any Construction Services Agreement entered into (c), below.
(b) If, in connection herewith, shall with the case of a Taking of less than all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restorationLeased Property, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such cost. If the Awards are not adequate to restore the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any of the Other Leases in effect, by giving Notice to the other; provided, however that, if such termination is by Lessee, Lessor shall have the right, in its sole discretion, to nullify the termination and keep this Lease in full force by providing, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess of the Awards. If this Lease is not terminated in accordance with the provisions of (a) above, this Lease shall continue in full force and Lessee restores the Hotel, the Award funds, and any other sums made available by Lessor effect as aforesaid, shall (subject to the requirements remaining portion of the Leased Property without any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result reduction in a termination of this Lease, the Base Rent and Percentage Rent, except as expressly provided in Section 15.2. No such partial taking shall operate as or be abated in deemed an eviction of Lessee from that portion of the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues Leased Property not affected by such partial Taking or in any way terminate, diminish, suspend, a▇▇▇▇ or impair the obligation of Lessee to observe and changes in perform fully all the Hotel's projected net operating income following such partial Taking. If Lessor and covenants of this Lease on the part of Lessee are unable to agree upon be performed with respect to the amount remainder of such abatement within thirty (30) days after such the Leased property unaffected by the partial Taking, except as to any reduction (if any) in the matter may Base Rent and Percentage Rent as expressly provided in Section 15.3.
(c) If, in the case of a Taking of less than all of the Leased Property, this Lease is not terminated in accordance with the provisions of (a) above, Lessee shall, prior to the expiration of the Term of this Lease, commence and proceed with reasonable diligence to complete the Restoration provided, however, that Lessor shall, in this case, make the award in the Condemnation Proceeds and, in the case of (a) above, such award plus any excess funds due from Lessor, available to Lessee to be submitted by either party utilized for Restoration of the Leased Property in the following manner, and subject to arbitration under Section 22.2 hereof for resolution.the following conditions and provisions. Lessor shall be entitled to receive and retain the remainder of the award not needed to complete the Restoration (the “Surplus”)
Appears in 1 contract
Sources: Hotel Lease Agreement (Moody National REIT I, Inc.)
Partial Taking. If title to less than a Partial Taking occurs, then the whole Term shall not be reduced or affected in any way, this Lease shall remain in full force and effect for the portion of the Leased Property is condemnedremaining after such Taking and the Tenant's obligation to pay Rent shall continue without abatement or diminution. All sums, including damages and interest constituting the Condemnation Award shall be deposited promptly with a Depositary, and shall be distributed and disbursed in the Leased following amounts and in the following order of priority:
(a) First, to be used for restoration of the Land and Improvements to an economically feasible state, in the good faith judgment of Tenant; and
(b) The balance, pro rata between Landlord and Tenant (or Leasehold Mortgagee) in accordance with (i) as to Landlord, the value of Landlord’s fee simple title in the portion of the Property is so taken, taking into account the effect on such value of this Lease and all other matters affecting such interest (had the Taking not Unsuitable for its Primary Intended Useoccurred), and not Uneconomic for (ii) as to Tenant (or Leasehold Mortgagee), the value of the Leasehold and Improvements to Tenant considering the number of years left in the Term. Tenant, at its Primary Intended Usesole cost and expense, shall commence and thereafter proceed to repair, alter, raze or restore the remaining part of the Land, or if Lessee or Lessor is entitled but neither elects otherwise to terminate this Lease as provided secure the Improvements and render the Improvements safe (the "Work"), all in Section 15.3, Lessee at its cost Tenant's reasonable discretion and in accordance with the terms of this Lease and any Construction Services Agreement entered into in connection herewith, shall with all reasonable dispatch, but only to the extent of any Award funds made available to Lessee and any other sums advanced by Lessor pursuant to this Section, restore the untaken portion of any Improvements so that such Improvements constitute a complete architectural unit of the same general character and condition (as nearly as may be possible under the circumstances) as the Improvements existing immediately prior to the Condemnation. Lessor shall in good faith seek a fair and equitable allocation of any Award among restoration, taken Improvements and other elements. Lessor will contribute to the cost of restoration that part of its Award specifically allocated to such restoration, together with severance and other damages awarded for the Improvements; provided, however, the amount of such contribution will not exceed such costArticle IX above. If the Awards are not adequate Condemnation Award received by ▇▇▇▇▇▇ is insufficient to restore pay the Hotel to that condition, each of Lessor and Lessee shall have the right to terminate this Lease, without in any way affecting any entire cost of the Other Leases in effectwork, then Tenant shall pay the full amount of any such deficiency. If the Condemnation Award received by giving Notice Tenant shall exceed the entire cost of the Work, then Tenant shall assign its interest and any such excess portion of the Condemnation Award to the other; provided, however thatDepositary if any and, if none, may use such termination is by Lessee, Lessor shall have the rightexcess for such purposes as Tenant, in its sole discretion, deems appropriate. Under no circumstances shall Landlord be obligated to nullify the termination and keep this Lease in full force by providingmake any payment, within thirty (30) days after Lessee's Notice of termination, a Notice to Lessee of Lessor's unconditional, legally binding obligation to be responsible for all restoration costs in excess disbursement or contribution towards or on account of the Awards. If this Lease is not terminated and Lessee restores cost of the Hotel, the Award funds, and any other sums made available by Lessor as aforesaid, shall (subject to the requirements of any ground or building lease or Mortgage) be held by Lessor and paid out by Lessor from time to time for the reasonable costs of such restoration upon satisfaction of reasonable terms and conditions, and any excess Award funds remaining after such restoration, and reimbursement of Lessor for any sums advanced by Lessor hereunder, shall be retained by Lessor. In the event of a partial Taking that does not result in a termination of this Lease, the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, the revenues affected by such partial Taking and changes in the Hotel's projected net operating income following such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within thirty (30) days after such partial Taking, the matter may be submitted by either party to arbitration under Section 22.2 hereof for resolutionWork.
Appears in 1 contract
Sources: Ground Lease