In the event the demised premises are totally damaged or rendered wholly unusable, the rent shall be proportionately paid up to the time of the casualty and shall thereafter cease until the date when the premises have been repaired and restored by landlord, according to Article 9(b).
Courts have expressly restricted the Article 9(e) waiver of subrogation clause to claims of destruction to the demised premises, and have further held that the waiver of subrogation did not apply to a claim based on damage to the tenant's property caused by the owner's negligence.
Specifically, the lease provided that landlord was permitted to "make such decorations, repairs, alterations, improvements or additions as [landlord] may deem necessary or desirable either to the Hotel or the demised premises" and that "the rent shall in no way abate while the decorations, repairs, alterations, improvements or additions are being made and [landlord] shall not be liable to [tenant] by reason of loss interruption of the business of [tenant] because of the prosecution of any such work or otherwise.
Nevertheless, standard [paragraph] 13 does not permit landlord to diminish, by such renovations, the actual size of the demised premises.
Whilethere is evidence that the material does not present an immediate hazard unless renovations occur (citations omitted), the issue is not whether the premises are "safe" in the absence of renovations, but whether the building is in a "safe condition" so that Rapid can use the demised
premises in the manner contemplated by the lease (citation omitted).