Damages and Remedies. (a) This Lease and the term and estate hereby granted are subject to the limitation that whenever an Event of Default shall occur, regardless of and notwithstanding the fact that Landlord has or may have some other remedy under this Lease or by virtue hereof, or in law or in equity, Landlord may give to Tenant a notice (the "Termination Notice") of intention to end the term of this Lease specifying a day not less than five (5) days thereafter and, upon the giving of the Termination Notice, this Lease and the term and estate hereby granted shall expire and terminate upon the day so specified in the Termination Notice as fully and completely and with the same force and effect as if the day so specified were the date herein set forth the expiration of the term of this Lease, and all rights of Tenant under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. From and after the date upon which Landlord shall be entitled to give a Termination Notice, Landlord, without further notice, may re-enter, possess and repossess itself of the demised premises. (b) It is covenanted and agreed by Tenant that in the event of the expiration or termination of this Lease or re-entry by Landlord, under any of the provisions of this Article or pursuant to law, by reason of any Event of Default hereunder, Tenant will pay to Landlord, as damages with respect to this Lease, at the election of Landlord: (i) a sum which at the time of such termination of this Lease or at the time of any re-entry by Landlord, as the case may be, represents the then present value (employing a discount rate equal to the then current rate of United States Treasury bills having a term that most closely approximates the then remaining term of this Lease) of the excess, if any, of: (A) the aggregate Rent which would have been payable by Tenant for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date hereinabove set for the expiration of the full term hereby granted, had this Lease not so terminated or had Landlord not so reentered the Property (B) the rental value of the demised premises for the same period; or (ii) sums equal to the aggregate Rent and other sums which would have been payable by Tenant had this Lease not so terminated, or had Landlord not so re-entered the demised premises, payable upon the rent days specified herein following such termination or such re-entry and until the date hereinabove set for the expiration of the full term hereby granted; PROVIDED, HOWEVER, that if the demised premises shall be leased or re-let during said period, Landlord shall credit Tenant with the net rents, if any, received by Landlord from such leasing or re-letting, such net rents to be determined by first deducting from the gross rents as and when received by Landlord from such leasing or re-letting the expenses incurred or paid by Landlord in terminating this Lease or of re-entering the demised premises and of securing possession thereof, as well as the expenses of leasing and re-letting, including altering and preparing any portion of the demised premises for new tenant(s), brokers' commissions, any other tenant incentives (including assumption of lease obligations) and all other expenses properly chargeable against the demised premises and the rental therefrom; but in no event shall Tenant be entitled to receive any excess of such net rents over the Rent and other sums payable by Tenant to Landlord hereunder. (c) Suit or suits for the recovery of any and all damages, or any installments thereof, provided for hereunder may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been terminated under the provisions of this Article, or under any provisions of law, or had Landlord not re-entered the demised premises. (d) Nothing herein contained shall be construed as limiting or precluding the exercise by Landlord of any other remedies or the recovery by Landlord against Tenant of any sums or damages to which Landlord may lawfully be entitled in any case other than those particularly provided for in this Lease. (e) Landlord shall be entitled to recover from Tenant each monthly deficiency as the same shall arise and no suit to collect the amount of the deficiency for any month shall prejudice Landlord's right to collect the deficiency for any subsequent month by a similar proceeding. Alternatively, suit or suits for the recovery of such deficiencies may be brought by Landlord from time to time at its election. (f) Tenant, for Tenant, and on behalf of any and all persons or parties claiming through or under Tenant, including creditors of all kinds, does hereby waive and surrender all right and privilege which they or any of them might have under or by reason of any present or future law, to redeem the demised premises or to have a continuance of this Lease for the term hereby demised after being dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as herein provided. (g) In the event of a breach or threatened breach on the part of Tenant with respect to any of the covenants or agreements on the part of or on behalf of Tenant to be kept, observed or performed, Landlord shall also have the right to seek an injunction or other equitable relief. (h) If an order for relief is entered or if any stay of proceeding or other act becomes effective in favor of Tenant or Tenant's interest in this Lease in any proceeding commenced by or against Tenant under the present or any future United States Bankruptcy Code or in a proceeding which is commenced by or against Tenant seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future applicable federal, state or other bankruptcy or insolvency statute or law, Landlord shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy or insolvency code, statute or law of this Lease, including such rights and remedies as may be necessary to adequately protect Landlord's right, title and interest in and to the demised premises or any part thereof and adequately assure the complete and continuous future performance of Tenant's obligations under this Lease. Adequate protection of Landlord's right, title and interest in and to the demised premises, and adequate assurance of the complete and continuous future performance of Tenant's obligations under this Lease, shall include all of the following requirements: (i) that Tenant shall comply with all of its obligations under this Lease; (ii) that Tenant shall continue to use the demised premises only in the manner permitted by this Lease; and (iii) that if Tenant's trustee, Tenant or Tenant as debtor-in- possession assumes this Lease and proposes to assign it (pursuant to Title 11 U.S.C. Section 365, as it may be amended) to any party who has made a bona fide offer therefor, the notice of such proposed assignment, giving (x) the name and address of such party, (y) all of the terms and conditions of such offer, and (z) the adequate assurance to be provided Landlord to assure such party's future performance under this Lease, including the assurances referred to in Title 11 U.S.C. Section 365(b)(3), as it may be amended, and such other assurances as Landlord may reasonably require, shall be given to Landlord by the trustee, Tenant or Tenant as debtor-in-possession of such offer, but in any event no later than ten (10) days before the date that the trustee, Tenant or Tenant as debtor-in-possession shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment, and Landlord or Landlord's designee shall thereupon have the prior right and option, to be exercised by notice to the trustee, Tenant and Tenant as debtor-in-possession, given at any time before the effective date of such proposed assignment, to accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such party, less any brokerage commissions which may be payable out of the consideration to be paid by such party for the assignment of this Lease. Landlord shall have no obligation to pay such brokerage commissions. If Tenant attempts to arrange such an assignment of this Lease, then as an element of the required adequate assurance to Landlord, and as a further condition to Tenant's right to make such an assignment, Tenant's agreement(s) with brokers shall, to Landlord's reasonable satisfaction, provide that Landlord shall have no obligation to pay a brokerage commission if Landlord exercises Landlord's rights under this subparagraph (h). (i) Landlord shall in no event be responsible or liable for any failure to relet the demised premises or any part thereof, or any failure to collect any rent due upon a reletting, or otherwise be obligated to mitigate or minimize damages. (j) Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for and obtain as damages incident to a termination of this Lease, in any bankruptcy, reorganization or other court proceedings, the maximum amount allowed by any statute or rule of law ln effect when such damages are to be proved. (k) No waiver by Landlord of any breach by Tenant or any of Tenant's obligations, agreements or covenants herein shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord or any rights and remedies with respect to such or any subsequent breach. (l) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, including without limitation consequential damages, but each shall be cumulative and in addition to every other right of remedy given herein or now or hereafter existing at law or in equity or by statute.
Appears in 1 contract
Sources: Lease (Dicks Sporting Goods Inc)
Damages and Remedies. (a) This Lease and the term and estate hereby granted are subject to the limitation that whenever The exercise by Landlord of any remedy arising by virtue of an Event of Default shall occurnot be considered exclusive, regardless of but Landlord may exercise any and notwithstanding the fact that Landlord has all other rights or may have some other remedy under remedies provided by this Lease or by virtue hereof, or in law or in equity, . Landlord may give elect to ▇▇▇ Tenant a notice (hereunder without terminating this lease. The termination of the "Termination Notice") Term pursuant to this Section 15 shall not extinguish the right of intention either party to end collect damages arising from the term breach of this Lease specifying a day not less than five (5) days thereafter and, upon by the giving other party. Tenant shall be liable for Rents accruing up to the end of the Termination Notice, Term specified in this Lease notwithstanding the early termination of such Term due to an Event of Default and the term and estate hereby granted shall expire and terminate upon reentry of Landlord before the day so specified in the Termination Notice as fully and completely and with the same force and effect as if the day so specified were the date herein set forth the normal expiration of the Term, except that Landlord shall make commercially reasonable and diligent efforts to rerent the Premises upon such terms as it sees fit in its reasonable discretion and for a term which may expire either before or after the specified termination date of this Leasethe Term herein, and all rights of Tenant under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. From and after the date upon which Landlord shall be entitled to give a Termination Notice, Landlord, without further notice, may re-enter, possess and repossess itself of the demised premises.
(b) It is covenanted and agreed by Tenant that in the event of the expiration or termination of this Lease or re-entry by Landlord, under any of the provisions of this Article or pursuant to law, by reason of any Event of Default hereunder, Tenant will pay to Landlord, as damages with respect to this Lease, at the election of Landlord:
(i) a sum which at the time of such termination of this Lease or at the time of any re-entry by Landlord, as the case may be, represents the then present value (employing a discount rate equal to the then current rate of United States Treasury bills having a term that most closely approximates the then remaining term of this Lease) of the excess, if any, of:
(A) the aggregate Rent which would have been payable by Tenant for the period commencing with such earlier termination of this Lease or the date of any such re-entry, as the case may be, and ending with the date hereinabove set for the expiration of the full term hereby granted, had this Lease not so terminated or had Landlord not so reentered the Property
(B) the rental value of the demised premises for the same period; or
(ii) sums equal to the aggregate all Rent and other sums which would have been be payable hereunder by Tenant had this Lease not so terminated, or had Landlord not so re-entered the demised premises, payable upon the rent days specified herein following if no such termination or such re-entry and until the date hereinabove set for the expiration of the full term hereby granted; PROVIDEDreentry had occurred, HOWEVER, that if the demised premises shall be leased or re-let during said period, Landlord shall credit Tenant with less the net rentsproceeds, if any, received by Landlord from such leasing or re-letting, such net rents to be determined by first deducting from the gross rents as and when received by Landlord from such leasing or re-letting the expenses incurred or paid by Landlord in terminating this Lease or of re-entering the demised premises and of securing possession thereof, as well as the expenses of leasing and re-letting, including altering and preparing any portion of the demised premises for new tenant(s), brokers' commissions, any other tenant incentives (including assumption of lease obligations) and all other expenses properly chargeable against the demised premises and the rental therefrom; but in no event shall Tenant be entitled to receive any excess of such net rents over the Rent and other sums payable by Tenant to Landlord hereunder.
(c) Suit or suits for the recovery of any and all damages, or any installments thereof, provided for hereunder may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been terminated under the provisions of this Article, or under any provisions of law, or had Landlord not re-entered the demised premises.
(d) Nothing herein contained shall be construed as limiting or precluding the exercise by Landlord of any other remedies or the recovery by Landlord against Tenant of any sums or damages to which Landlord may lawfully be entitled in any case other than those particularly provided for in this Lease.
(e) Landlord shall be entitled to recover from Tenant each monthly deficiency as the same shall arise and no suit to collect the amount of the deficiency for any month shall prejudice Landlord's right to collect the deficiency for any subsequent month by a similar proceeding. Alternatively, suit or suits for the recovery of such deficiencies may be brought by Landlord from time to time at its election.
(f) Tenant, for Tenant, and on behalf of any and all persons or parties claiming through or under Tenant, including creditors of all kinds, does hereby waive and surrender all right and privilege which they or any of them might have under or by reason of any present or future law, to redeem the demised premises or to have a continuance of this Lease for the term hereby demised reletting after being dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as herein provided.
(g) In the event of a breach or threatened breach on the part of Tenant with respect to any of the covenants or agreements on the part of or on behalf of Tenant to be kept, observed or performed, Landlord shall also have the right to seek an injunction or other equitable relief.
(h) If an order for relief is entered or if any stay of proceeding or other act becomes effective in favor of Tenant or Tenant's interest in this Lease in any proceeding commenced by or against Tenant under the present or any future United States Bankruptcy Code or in a proceeding which is commenced by or against Tenant seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future applicable federal, state or other bankruptcy or insolvency statute or law, Landlord shall be entitled to invoke any and all rights and remedies available to it under such bankruptcy or insolvency code, statute or law of this Lease, including such rights and remedies as may be necessary to adequately protect Landlord's right, title and interest in and to the demised premises or any part thereof and adequately assure the complete and continuous future performance of Tenant's obligations under this Lease. Adequate protection of Landlord's right, title and interest in and to the demised premises, and adequate assurance of the complete and continuous future performance of Tenant's obligations under this Lease, shall include all of the following requirements:
(i) that Tenant shall comply with all of its obligations under this Lease;
(ii) that Tenant shall continue to use the demised premises only in the manner permitted by this Lease; and
(iii) that if Tenant's trustee, Tenant or Tenant as debtor-in- possession assumes this Lease and proposes to assign it (pursuant to Title 11 U.S.C. Section 365, as it may be amended) to any party who has made a bona fide offer therefor, the notice of such proposed assignment, giving (x) the name and address of such party, (y) all of the terms and conditions of such offer, and (z) the adequate assurance to be provided Landlord to assure such party's future performance under this Lease, including the assurances referred to in Title 11 U.S.C. Section 365(b)(3), as it may be amended, and such other assurances as Landlord may reasonably require, shall be given to Landlord by the trustee, Tenant or Tenant as debtor-in-possession of such offer, but in any event no later than ten (10) days before the date that the trustee, Tenant or Tenant as debtor-in-possession shall make application to a court of competent jurisdiction for authority and approval to enter into such assignment, and Landlord or Landlord's designee shall thereupon have the prior right and option, to be exercised by notice to the trustee, Tenant and Tenant as debtor-in-possession, given at any time before the effective date of such proposed assignment, to accept an assignment of this Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such party, less any brokerage commissions which may be payable out of the consideration to be paid by such party for the assignment of this Lease. Landlord shall have no obligation to pay such brokerage commissions. If Tenant attempts to arrange such an assignment of this Lease, then as an element of the required adequate assurance to Landlord, and as a further condition to Tenant's right to make such an assignment, Tenant's agreement(s) with brokers shall, to deducting Landlord's reasonable satisfaction, provide that Landlord shall have no obligation to pay a brokerage commission if Landlord exercises Landlord's rights under this subparagraph (h).
(i) Landlord shall expenses in no event be responsible or liable for any failure to relet the demised premises or any part thereof, or any failure to collect any rent due upon a connection with such reletting, or otherwise be obligated including but not limited to mitigate or minimize damages.
(j) Nothing contained in this Lease repossession costs, brokerage commissions, legal fees and expenses, employee expenses, alteration costs and other such reletting preparation expenses, and operating expenses, and Tenant shall limit or prejudice the right of Landlord to prove for and obtain as pay such current damages incident to a termination of this Lease, in any bankruptcy, reorganization or other court proceedings, the maximum amount allowed by any statute or rule of law ln effect when such damages are to be proved.
(k) No waiver by Landlord of any breach by Tenant or any of Tenant's obligations, agreements or covenants herein shall be a waiver of any subsequent breach or of any obligation, agreement or covenant, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord or any rights and remedies with respect to such or any subsequent breach.
(l) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, including without limitation consequential damages, but each shall be cumulative on the days on which such Rent would have been payable hereunder if no such termination and in addition to every other right of remedy given herein or now or hereafter existing at law or in equity or by statuterepossession and reentry had occurred.
Appears in 1 contract
Sources: Ground Lease