Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”): i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant; ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises); iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease; iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease; v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant; vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure; vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing; viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property; ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment; x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months. b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease: i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand. ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises. iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein. v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity. vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 13 contracts
Sources: Triple Net Office Lease Agreement, Triple Net Office Lease Agreement (Franklin Financial Network Inc.), Triple Net Office Lease Agreement (Franklin Financial Network Inc.)
Default and Remedies. a. The occurrence of any A. Each of the following shall constitute a be deemed an event of default under and breach of this Lease by Tenant Borrower (each, an “Event of Default”):
i(1) Failure by Tenant to pay If any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice representation or warranty of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants Borrower Parties set forth in any of the Loan Documents is false in any material respect when made, or if any of assignment and subletting of this Lease;the Borrower Parties renders any statement or account which is false in any material respect.
iv(2) Failure by Tenant to cure forthwithIf any principal, immediately after receipt of notice from Landlordinterest or other monetary sum due under the Note, the Mortgage or any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant other Loan Document is not paid within twenty (20) five days after the initial written demand for same date when due; provided, however, notwithstanding the occurrence of such an Event of Default, Lender shall not be entitled to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure exercise its rights and remedies set forth below unless and until Lender shall continue for thirty (30) days after have given Borrower written notice thereof from Landlord to Tenant; provided that such thirty (30) day and a period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) five days from the date delivery of such filing;notice shall have elapsed without such Event of Default being cured.
viii(3) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure If Borrower fails to observe or perform any of the other covenants, terms conditions, or conditions hereof more obligations of this Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is within the reasonable power of Borrower to promptly cure after receipt of notice thereof, all as determined by Lender in its reasonable discretion, then such failure shall not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lender shall have given Borrower notice thereof and a period of 30 days shall have elapsed, during which period Borrower may correct or cure such failure, upon failure of which an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as determined by Lender in its reasonable discretion, and Borrower is diligently pursuing a cure of such failure, then Borrower shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the failure from Lender. If Borrower shall fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required.
(4) If any of the Borrower Parties becomes insolvent within the meaning of the Code, files or notifies Lender that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an “Action”), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due. Notwithstanding the foregoing, the filing of an involuntary bankruptcy proceeding against any of the Borrower Parties shall not be an Event of Default herein provided that such case or proceeding is dismissed with prejudice within 60 days of the filing thereof.
(5) If there is an “Event of Default” or a breach or default, after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements, or any other Loan Document.
(6) If a final, nonappealable judgment is rendered by a court against any of the Borrower Parties which (a) has a Material Adverse Effect on the operation of the Premises as a Permitted Concept, or (b) is in an amount greater than three (3) times$100,000.00 and not covered by insurance, and, in either case, is not discharged or provision made for such discharge within 60 days from the aggregate, in any period date of twelve (12) consecutive monthsentry of such judgment.
b. (7) If there is a breach or default, after the passage of all applicable notice and cure or grace periods, under the Franchise Agreement, or if the Franchise Agreement terminates or expires prior to the payment in full of the Note in accordance with its terms and a substitute agreement for the terminated or expired agreement is not entered into with Franchisor prior to such expiration or termination, which substitute agreement shall be in form and substance reasonably satisfactory to Lender and shall expire after the scheduled maturity date of the Note.
(8) If there is a breach or default, after the passage of all applicable notice and cure or grace periods, under the Management Agreement, or if the Management Agreement terminates or expires prior to the payment in full of the Note in accordance with its terms and a substitute agreement for the terminated or expired agreement is not entered into with Manager prior to such expiration or termination, which substitute agreement shall be in form and substance reasonably satisfactory to Lender and shall expire after the scheduled maturity date of the Note.
B. Upon the occurrence and during the continuance of an Event of Default, Landlord agrees subject to use reasonable efforts the limitations set forth in subsection A, Lender may declare all or any part of the obligations of Borrower under the Note, this Agreement and any other Loan Document to mitigate be due and payable, and the same shall thereupon become due and payable without any presentment, demand, protest or notice of any kind except as otherwise expressly provided herein, and Borrower hereby waives notice of intent to accelerate the obligations secured by the Mortgage and notice of acceleration. Thereafter, Lender may exercise, at its damagesoption, but shall have the option to do and perform concurrently, successively or in any combination, all remedies available at law or in equity, including without limitation any one or more of the following remedies available under the Note, the Mortgage or any other Loan Document. Neither the acceptance of this Agreement nor its enforcement shall prejudice or in addition toany manner affect Lender’s right to realize upon or enforce any other security now or hereafter held by Lender, it being agreed that Lender shall be entitled to enforce this Agreement and not any other security now or hereafter held by Lender in limitation of, such order and manner as it may in its absolute discretion determine. No remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other remedy given hereunder or right permitted it by now or hereafter existing at law or in equity or by this Lease:
i) Landlordstatute. Every power or remedy given by any of the Loan Documents to Lender, with or without terminating this Leaseto which Lender may be otherwise entitled, may immediately be exercised, concurrently or at any independently, from time thereafter re-enter the Premises to time and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, as often as may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt expedient by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationLender.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 7 contracts
Sources: Loan Agreement (Summit Hotel OP, LP), Loan Agreement (Summit Hotel OP, LP), Loan Agreement (Summit Hotel OP, LP)
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach an Event of this Lease by Tenant Default (an “Event of Default”):) under this Lease on the part of Tenant:
(i) Failure by Tenant to pay any monetary amounts payment of Rent when due (including Base Rental Annual Basic Rent, Excess Basic Rent, if any, Tenant’s Operating Expense Share, Tenant’s Tax Share and Additional RentalAbove Standard Services Rent) due hereunder within and such failure to pay continues for a period of ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that Landlord shall not be obligated to send written notice of a failure to pay more than two (2) times in any consecutive twelve (12) month period, or
(ii) At any time that Tenant does not satisfy the Net Worth Test, failure of Tenant to maintain any policy of insurance that Tenant is required by the terms of this Lease to maintain and such failure continues for a period of ten (10) business days after written notice from Landlord to Tenant of such failure, which notice shall (A) specify the insurance policy which Tenant has failed to maintain and the provision of this Lease which requires Tenant to maintain such insurance, and (B) state, in all capital letters and in a prominent place, that the continuance of such failure to maintain insurance for ten (10) business days after Tenant’s receipt of such written notice will constitute an Event of Default under Section 7.1(a) of the Lease, or
(iii) Tenant breaches or fails to comply with any term, provision, condition or covenant of this Lease, other than as described in Section 7.1(a)(i) and (ii), and such breach or failure continues for thirty (30) days after written notice from Landlord to Tenant of such breach or failure to comply (or, if such breach or failure is curable but reasonably cannot be cured within thirty (30) days, Tenant does not commence to cure such breach or failure promptly within such thirty (30) day period and continuously and diligently thereafter pursue such cure and remedy until such breach or failure is remedied; provided that there shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty a maximum period of one hundred eighty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60180) days after Landlord’s written notice to cure or remedy such appointment;
x) Any bankruptcydefault, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding except that such maximum cure period shall extended as appropriate for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) delays caused by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsForce Majeure Events.
b. (b) Upon the occurrence of an Event of Default, subject to Section 7.1(e) below, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord may immediately or at any time thereafter, collect all overdue Rent and other charges payable to Landlord, together with or without terminating this LeaseLandlord’s legal fees and costs of enforcement, with interest at the Applicable Rate from the date such sums were originally due until the date paid in full.
(ii) Landlord may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Building Rules now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
ii(iii) Subject to the limitations expressed in Section 7.1(e), Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall immediately vacate the Leased Premises and remove therefrom all property thereon (other than Non-Removable Improvements) belonging to or placed on in the Leased Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from LandlordTenant, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises. Any such demand, re-entry and taking possession of the Leased Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iii(iv) LandlordSubject to the limitations expressed in Section 7.1(e), with or without terminating this Lease, Landlord may immediately or at any time thereafter, re-enter the Premises Leased Premises, and if persons or any of Tenant’s property are then in the Leased Premises, then, upon prior written notice to Tenant, Landlord may remove therefrom Tenant and all property belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant, all at Tenant’s expense. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv(v) Subject to the limitations expressed in Section 7.1(e), Landlord, with or without terminating this Lease, may immediately or at any time anytime thereafter relet the Leased Premises or any part thereof thereof, for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisabledeems reasonable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem that are necessary or proper to facilitate such relettingreletting as office space; and Tenant shall pay all reasonable costs of such reletting, including the cost of any such alterations and repairs to the Leased Premises and reasonable attorneys’ fees actually incurred; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges Rent due under this lease Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease Term the differenceamount, if any, between by which the Rent and other charges reserved in this Lease exceed the rent and other charges collected from any such subsequent tenant or tenants (net of the costs Landlord incurred to re-enter and relet the rent and other charges reserved in this LeaseLeased Premises), but Tenant shall not be entitled to receive any excess of any such rents collected over the rents Rent reserved herein. Landlord hereby agrees to use its commercially reasonable efforts to relet the Leased Premises to mitigate or otherwise reduce the damages for which Tenant may be liable hereunder, but only to the extent required under applicable law in the state in which the Building is located; provided that in no event shall Landlord’s leasing or attempted leasing of other space in the Building instead of the Leased Premises, in and of itself, violate the provisions of the preceding sentence. Any such reletting may be for such rent, for such time, and upon such terms as the Landlord, in the Landlord’s good faith discretion, shall determine to be commercially reasonable. Landlord shall be deemed to have exercised commercially reasonable efforts to relet the Leased Premises so long as Landlord or Landlord’s agents employ marketing methods and procedures substantially similar to marketing methods and procedures used by Landlord or Landlord’s agents to market and lease vacant space in other buildings, which are similar in nature and quality to the Building, owned by Landlord or an affiliate of Landlord.
v(vi) Subject to the limitations expressed in Section 7.1(e), Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by notice to Tenant of written notice of such termination; upon such termination Landlord shall elect to either recover from Tenant (A) all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, including all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and reasonable attorneys’ fees) of recovering possession of the Leased Premises, the actual or estimated (as reasonably estimated by Landlord) cost of any alteration of or repair to of the Leased Premises which that is necessary or proper to prepare the same for reletting andas office space, or (B) all arrearages in addition theretorentals, Landlord at its election shall have and recover from Tenant either (A) plus an amount equal to the excess, if any, of the present value discounted at the Prime Rate of the total amount of all rents and other charges Rent to be paid by Tenant for the remainder of the term of this Lease Term, over the then reasonable present value (discounted at the same rate) of the fair market rental value of the Leased Premises for the remainder of the term Term.
(c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all claims for damages that may be caused by such re-entry or (B) the rents and other charges which termination by Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection this Lease. Tenant shall and does hereby indemnify and hold Landlord harmless from any loss, cost (iv) if the Lease were not terminated. Such election shall be made including court costs and attorneys’ fees), or damages suffered by Landlord by serving written notice upon Tenant reason of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationsuch re-entry or termination unless caused by Landlord’s gross negligence.
vi(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii(e) No act by Notwithstanding the provisions set forth in Sections 7.1(b)(iii) through (vi), Landlord may not:
(i) terminate this Lease as to any Property or Properties unless either (A) Tenant shall have failed to pay, without the contractual right to ▇▇▇▇▇ or offset as herein otherwise provided, Rent for such Property or Properties in an amount equal to or greater than the amount of three (3) months’ Annual Basic Rent then due and payable with respect to the Premises such Property or Properties, and such failure to pay continues for a period of ten (10) days following Tenant’s receipt of written notice thereof from Landlord, which notice shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer state in all capital letters (or other dispossessory proceedings, it being understood prominent display) that this Lease may only be terminated as to such Property or Properties if Tenant fails to promptly pay all overdue Rent for such Properties or Properties, or (B) Tenant shall fail to comply with any final order relating to such Property or Properties rendered pursuant to the dispute resolution procedures outlined in Article XII within the time periods set forth in such order, or, if no time periods are set forth therein, then within such time period as is reasonably necessary to promptly and diligently comply with such order, but not to exceed sixty (60) days, subject to appropriate extensions for delays caused by express Force Majeure Events, and such failure to comply continues for a period of thirty (30) days following Tenant’s receipt of written notice thereof from Landlord, which notice shall state in all capital letters (or other prominent display) that this Lease may be terminated as to such Property or Properties if Tenant fails to promptly comply with the requirements of such order; or
(ii) terminate this Lease in its entirety unless Tenant shall have failed to pay, without the contractual right to ▇▇▇▇▇ or offset as herein otherwise provided, Rent in an amount equal to or greater than the amount of three (3) months’ Annual Basic Rent then due and payable with respect to all Properties under this Lease, and such failure to pay continues for a period of ten (10) days following Tenant’s receipt of written notice thereof from Landlord, which notice shall state in all capital letters (or other prominent display) that this Lease may be terminated if Tenant fails to promptly pay all overdue Rent.
(f) If Landlord should fail to perform or observe any covenant, term, provision or condition of this Lease and such default should continue beyond a period of ten (10) days as to a monetary default or thirty (30) days (or such longer period as is reasonably necessary to remedy such default; provided Landlord shall continuously and diligently pursue such remedy at all times until such default is cured) as to a non-monetary default, after in each instance written notice thereof is given by Tenant to Landlord (and a copy of said notice is sent simultaneously therewith to the Notice Parties) (“Landlord Default”), then, in any such event Tenant shall have the right, (i) to cure or attempt to cure the Landlord Default (upon twenty-four (24) hours’ notice in the event of an emergency, notwithstanding the foregoing provisions of this Section 7.1(f)), and Landlord shall reimburse Tenant for all reasonable sums expended in so curing the Landlord Default or (ii) to commence such actions at law or in equity to which Tenant may be entitled. The exercise by Tenant of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Tenant of any one or more of the other rights and remedies herein provided. Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the election of Tenant, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity, including the right to claim that Tenant has been constructively evicted.
(g) Notwithstanding the provisions of Section 7.1(e) hereof, if Landlord should fail to maintain any policy of insurance which Landlord is required by the terms of this Lease to maintain and such failure continues for a period of ten (10) business days after written notice from Tenant to Landlord and all Notice Parties of such failure, which notice shall (A) specify the insurance policy which Landlord has failed to maintain and the provision of this Lease which requires Landlord to maintain such insurance. Tenant, ’s sole and exclusive recourse and remedy for Landlord’s failure to maintain any reletting such policy of the Premises insurance shall be presumed limited to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise the limited offset right provided in writing to TenantSection 13.1.
Appears in 6 contracts
Sources: Master Lease Agreement (KBS Real Estate Investment Trust, Inc.), Master Lease Agreement (Gramercy Capital Corp), Master Lease Agreement (Gramercy Capital Corp)
Default and Remedies. a. 1. The occurrence of any of the following shall constitute a default of Subgrantee under and breach this Agreement:
i. Breach of any of Subgrantee’s covenants, agreements, or certifications in this Lease by Tenant (an “Event Agreement, including the expenditure of Default”):
i) Failure by Tenant to pay Grant Funds for any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of use other than for the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business purposes set forth in the Premises);
iii) Failure by Tenant to observe Program guidelines or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institutionunauthorized manner; or
xi) Tenantii. Subgrantee’s repeated failure to observe comply with federal, state, or perform any of local laws, regulations, or rules related to the other covenants, terms or conditions hereof more than three (3) times, in Grant Funds for the aggregate, in any period of twelve (12) consecutive monthsProgram.
b. 2. Upon the occurrence of an Event of Defaultany default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord City shall have the right to re-enter and take possession terminate this Agreement by written notice to the Subgrantee. To the extent that any such default is curable, the Subgrantee shall have ten (10) business days from the date the City’s notice is postmarked or sent via electronic mail (whichever is sooner) to cure the default. After the conclusion of the Premisesten (10) business day period, if the Subgrantee has not cured or commenced to cure the default to the satisfaction of the City, the City may, at its option:
i. Assist the Subgrantee in curing the default;
ii. Suspend its disbursement of Grant Funds to Subgrantee until such time as the default has been cured by Subgrantee; or
iii. Immediately terminate this Agreement for cause.
3. In the event the City terminates this Agreement for cause:
i. Subgrantee’s authority to request disbursements shall cease and Subgrantee shall have no right, title, or interest in or to any of the Grant Funds not already disbursed;
ii. The City may demand repayment from the Subgrantee of any amounts the City determines were not expended in accordance with this Agreement;
iii) Landlord. The City, with or without terminating this Leaseat its sole discretion, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and demand repayment of all property belonging Grant Funds disbursed to or placed on the Premises bySubgrantee; and
iv. The City, at its sole discretion, may bar the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of Subgrantee from reapplying to participate in the Premises by Tenant and shall not of itself constitute a termination of this Lease by LandlordProgram.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs 4. In addition to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided contained in this Lease shall not prevent Agreement, the subsequent exercise City may at any time, proceed to protect and enforce all rights available to the City by Landlord suit in equity, action at law, or by any other appropriate proceedings, all of any one or more of the other which rights and remedies herein provided. All remedies provided for in shall survive the termination of this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityAgreement.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 5 contracts
Sources: Subgrant Agreement, Subgrant Agreement, Subgrant Agreement
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “17.1 An Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due Default hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated occurred upon receipt a Party's (Defaulting Party) failure to comply with any material obligation imposed upon it by Tenant this Agreement. Examples of written notice an Event of Default include, but are not limited to the following:
(i) Failure to make any payments due under this Agreement;
(ii) Failure to deliver the Supply Amount for a period of five (5) consecutive days;
(iii) Failure to follow the directions of a Control Area Operator, ISA, EDU, WSCC, NERC, PUCN, FERC, or any successor thereto where following such terminationdirections is required hereunder;
(iv) Supplier not being in compliance with Section 3; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost and
(including court costs and attorneys’ feesv) of recovering possession Failure of the Premises, Guarantor to be in compliance with the cost terms of any alteration the Guarantee delivered under Section 3.1.2.
17.2 An Event of Default shall be excused:
17.2.1 In the event such Event of Default was caused by Force Majeure provided that the Party claiming a Force Majeure complies with the requirements of Section 12; and
17.2.2 In the event such Event of Default was caused by transmission and distribution outages or repair to the Premises which is necessary or proper to prepare the same for reletting anddisruptions.
17.3 Unless excused, in addition thereto, Landlord at its election an Event of Default the Non-Defaulting Party shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant provide written notice (or verbal notice in case of emergency followed by written notice) of the Event of Default to the provisions of subsection (iv) if the Lease were not terminated. Such election Defaulting Party and to specify a cure period, which cure period shall be made by Landlord by serving written notice upon Tenant a minimum of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationdays.
vi) The exercise 17.4 If an Event of Default is not cured by Landlord the Defaulting Party during the cure period specified by the Non-Defaulting Party, the Non-Defaulting Party shall be entitled to those remedies which are not inconsistent with the terms of any one or more this Agreement, including termination and the payment of the rights and remedies provided in this Lease liquidated damages. A Defaulting Party shall not prevent be liable to the subsequent exercise by Landlord Non-Defaulting Party for any punitive, consequential or incidental damages. For purposes of any one clarification, Replacement Costs shall not be considered consequential or more of the other rights and remedies herein provided. All remedies provided for in incidental damages under this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equitySection 17.4.
vii) No act by Landlord with respect 17.5 Notwithstanding this Section 17, liquidated damages shall be paid to the Premises shall terminate this LeaseBuyer pursuant to Sections 4.2, including12, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant18, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant21.
Appears in 4 contracts
Sources: Transitional Power Purchase Agreement (Sierra Pacific Power Co), Transitional Power Purchase Agreement (Sierra Pacific Power Co), Transitional Power Purchase Agreement (Sierra Pacific Power Co)
Default and Remedies. a. The occurrence 14.01 Notwithstanding any other provision of this Agreement, any of the following shall events will constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment Default whether that event be voluntary, involuntary or results from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or any judgment or order of this Lease;any court or administrative or government body:
v(a) Failure by Tenant BC ▇▇▇▇▇▇▇ fails to completeobserve, execute and deliver perform or comply with any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or material provision of this LeaseAgreement on the part of BC Ferries to be observed, if performed or complied with and
(i) such failure shall continue continues for a period of thirty (30) business days after written notice thereof from Landlord has been given by the Province to Tenant; provided that BC Ferries or
(ii) if any such failure because of its nature would reasonably require more than thirty (30) business days to rectify, BC Ferries has not commenced rectification within the thirty (30) day notice period shall be extended for the time reasonably required to complete such cureand, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently thereafter, promptly, effectively and continuously proceeds to cure such with the rectification of the failure;
vii(b) The levy upon execution any representation or warranty made by BC Ferries in this Agreement is materially untrue or incorrect;
(c) any information, statement, document, certificate or report furnished or submitted by or on behalf of BC Ferries to the attachment by legal process Province under or as a result of this Agreement is materially untrue or incorrect;
(d) BC Ferries fails to furnish and give to the Province notice that there has occurred or is continuing a default under this Agreement specifying particulars of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filingsame;
viii(e) Tenant an order is made, a resolution is passed or any guarantor a petition is filed, for the liquidation or winding up of Tenant’s obligations under this Lease BC Ferries;
(f) BC Ferries becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they matureinsolvent, or commits an act of bankruptcy, makes an assignment for the benefit of creditorsits creditors or otherwise acknowledges its insolvency;
(g) a bankruptcy petition is filed or presented against, or applies for a proposal under the
(h) a receiver or consents to the appointment receiver-manager of a trustee or receiver for all or a major part any property of its propertyBC ▇▇▇▇▇▇▇ is appointed;
ix(i) A trustee or receiver BC Ferries permits any sum that is appointed for Tenant, any guarantor of Tenant’s not disputed to be due by it to remain unpaid after legal proceedings have been commenced to enforce payment thereof if such failure will materially adversely affect BC Ferries’ ability to perform its obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointmentAgreement;
x(j) Any bankruptcyBC Ferries ceases to carry on business as a going concern;
(k) if any action is taken to enforce any security interest, reorganizationcharge or encumbrance granted, arrangement, insolvency created or liquidation proceedingissued by BC Ferries that materially affects the ability of BC Ferries to carry on business as a going concern;
(l) BC Ferries fails to pay any costs or expenses, or other proceeding for relief both, due and payable to the BC Transportation Financing Authority under any bankruptcy law one or similar law for more Ferry Terminal Leases within the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institutiontimes specified therein; or
xi(m) Tenant’s repeated failure BC ▇▇▇▇▇▇▇ fails to observe or perform comply with any of Order issued by the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsCommissioner.
b. 14.02 Upon the occurrence of an Event of DefaultDefault by BC Ferries, Landlord agrees to use reasonable efforts to mitigate or at any time thereafter, the Province may, at its damagesoption, but shall have subject to the option terms of any trust deed referred to in section 2.04, elect to do and perform any one or more of the following in addition to, and not in limitation of, following:
(a) suspend or adjust any instalment of the Service Fee or any other amount that is due or that becomes due to BC Ferries while the Event of Default continues;
(b) require that the Event of Default be remedied within a time period specified by the Province and, if BC Ferries has not remedied the Event of Default within that time, observe and perform the obligations in respect of which BC Ferries has made default, or make payment of the moneys BC Ferries has failed to pay, as the case may be; and BC Ferries will promptly pay all costs and expenses reasonably incurred by the Province, excluding the costs of any salary, wages and benefits payable by the Province to any of its employees but including legal costs as between solicitor and own client, in the observance or performance of such BC Ferries obligations;
(c) waive the Event of Default;
(d) exercise the Option to Purchase;
(e) notify the Commissioner and request that the Commissioner issue an order requiring BC Ferries to remedy the Event of Default within a time period specified by the Commissioner in the order;
(f) bring an action or right permitted it by law or suit at law, in equity or by this Lease:
i) Landlord, with in admiralty or without terminating this Lease, may immediately other proceeding for the specific performance of any term contained herein or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute for an injunction against a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess violation of any such rents collected over the rents reserved herein.
v) Landlord may immediately term or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost aid of any alteration of right, power or repair to the Premises which is necessary remedy granted herein or proper to prepare the same for reletting andtherein or by law, in addition theretoequity, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Leasein admiralty or otherwise, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one recover judgment for all amounts due or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.declared due hereunder;
Appears in 4 contracts
Sources: Coastal Ferry Services Contract, Coastal Ferry Services Contract, Coastal Ferry Services Contract
Default and Remedies. a. The occurrence If Lessee (i) defaults in the payment of any sum of the following money to be paid under any Lease or under this Agreement and such default continues for a period of five (5) days after written notice to Lessee of such default, (ii) fails to perform any covenant or condition required to be performed by Lessee under this Agreement (including, without limitation, failure to accept delivery as required under Article 3 and failure to comply with assurance requirements under Article 28) and such failure shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder not be remedied within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure Lessee of such failure;
vii, (iii) The levy upon execution makes any representation or the attachment by legal process warranty that was incorrect when made or (iv) shall dissolve, make or commit any act of the leasehold interest of Tenant, bankruptcy or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or if any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the insolvency statute or any laws relating to relief of debtors, debtors is instituted (A) commenced by Tenant Lessee or if any guarantor of Tenant’s obligations under this Lease, or (B) such proceeding is commenced against Tenant or any guarantor of Tenant’s obligations under this Lease Lessee and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease same shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives removed within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more date of the rights and remedies provided in this Lease filing thereof or if a receiver, trustee or liquidator is appointed for Lessee or for all or a substantial part of Lessee’s assets with Lessee’s consent or, if without Lessee’s consent, the same shall not prevent the subsequent exercise by Landlord of any one or more have been removed within thirty (30) days of the other rights date of the appointment thereof or if an order, judgment or decree is entered by a court of competent jurisdiction and remedies herein provided. All remedies provided continues unpaid and in effect for in this Lease are cumulative any period of thirty (30) consecutive days without a stay of execution or if a writ of attachment or execution is levied on any car and mayis not discharged within ten (10) days thereafter (any of the foregoing, at the election an “Event of LandlordDefault”) then, be exercised alternatively, successively, or in any other manner and are in addition to any other rights of Lessor provided for in this Agreement, Lessor may exercise one or allowed by law or in equity.
vii) No act by Landlord more of the following remedies with respect to the Premises cars leased under any Lease entered into under this Agreement:
1. Immediately terminate any and all Leases and Lessee’s rights hereunder or under any related Rider(s); provided, however, in the event of termination, Lessee shall terminate remain liable for all unpaid rent charges and any other amounts due under any Lease or Leases, this LeaseAgreement and any related Rider(s);
2. Require Lessee to return the cars to Lessor at Lessee’s expense, includingand if Lessee fails to so comply, but Lessor may take possession of such cars without demand or notice and without court order or legal process and remove the cars from Lessee’s service. Lessee hereby waives any damages occasioned by such taking of possession, whether or not limited toLessee was in default at the time possession was taken, acceptance so long as Lessor reasonably believes that Lessee was in default at such time. Lessee acknowledges that it may have a right to notice of possession from Lessor and the taking of possession pursuant to a court order or other legal process obtained by Lessor. Lessee, however, knowingly waives any right to such notice of possession from Lessor and the taking of such possession without the Lessor’s obtaining a court order or other legal process;
3. Lease the cars to such persons, at such rent, and for such period of time as Lessor shall elect. Lessor shall apply the proceeds from such leasing, less all costs and expenses incurred in the recovery, repair, storage and renting of such cars, toward the payment of Lessee’s obligations hereunder. Lessee shall remain liable for any deficiency, which, at Lessor’s option, shall be paid monthly as suffered or immediately, or at the end of the keys, institution of an lease term as damages for Lessee’s default;
4. Bring legal action for detainer to recover all rent charges or other dispossessory proceedings, it being understood that this Lease amounts then accrued or thereafter accruing from Lessee to Lessor under any provision hereunder or any related Rider(s);
5. Pursue any other remedy which Lessor may only have. Each remedy is cumulative and may be terminated by express written notice from Landlord to Tenantenforced separately or concurrently. The exercise of any remedy is in the Lessor’s discretion, and any reletting failure or delay by Lessor to exercise any particular remedy shall not affect Lessee’s rent or holdover rent obligations hereunder. In the event of default, in addition to Late Rent and Holdover Rent as provided in Article 4, Lessee shall pay to Lessor upon demand all costs and expenses, including attorneys’ fee expended by Lessor in the enforcement of its rights and remedies hereunder, and Lessee shall pay interest on any amount owing to Lessor from the time such amount becomes due hereunder at a rate per annum equal to three percentage points above the prime rate of JPMorgan Chase Bank (or its successor), such rate to be reduced, however, to the extent it exceeds the maximum rate permitted by applicable law. In addition, Lessee shall, without expense to Lessor, assist Lessor in repossessing the cars and shall, for a reasonable time, if required, furnish suitable trackage space for the storage of the Premises cars. If Lessee fails to perform any of its obligations hereunder, Lessor, at Lessee’s expense, and without waiving any rights it may have against Lessee for such nonperformance, may itself render such performance. Lessee shall reimburse Lessor on demand for all sums so paid by Lessor on Lessee’s behalf, together with interest at a rate equal to three percentage points above the prime rate of JPMorgan Chase Bank (or its successor), such rate to be reduced, however, to the extent it exceeds the maximum rate permitted by applicable law. In addition, in respect of any Event of Default by Lessee hereunder, Lessor shall be presumed entitled to be for any and on behalf all rights and remedies inuring to the benefit of Tenant, and not Landlord, unless Landlord expressly provides otherwise a lessor upon a default by the lessee as provided in writing to TenantArticle 2A of the Uniform Commercial Code in effect in the applicable jurisdiction.
Appears in 4 contracts
Sources: Railroad Car Lease Agreement, Master Indenture (Trinity Industries Inc), Master Indenture (Trinity Industries Inc)
Default and Remedies. a. The occurrence of any A. Each of the following shall constitute a be deemed an event of default under and breach of this Lease by Tenant Borrower (each, an “"Event of Default”"):
i(1) Failure by Tenant to pay If any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice representation or warranty of non-payment from Landlord to Tenant;
ii) Abandonment Borrower set forth in any of the Premises Loan Documents is false in any material respect which would have a Material Adverse Effect, or if Borrower renders any statement or account which is false in any material respect as of the effective date of such representation.
(defined as 2) If any principal, interest or other monetary sum due under the Notes, the Mortgages or any other Loan Document is not paid within five days after the date when due; provided, however, notwithstanding the occurrence of such an Event of Default, Lender shall not be entitled to exercise its rights and remedies set forth below unless and until Lender shall have given Borrower notice thereof and a period of one hundred and eighty five days from the delivery of such notice shall have elapsed without such Event of Default being cured.
(1803) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant If Borrower fails to observe or perform any of the other covenants (except with respect to a breach of the Fixed Charge Coverage Ratio, which breach is addressed in respect of assignment and subletting subitem (7) below), conditions, or obligations of this Lease;
iv) Failure by Tenant Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is within the reasonable power of Borrower to promptly cure forthwith, immediately after receipt of notice from Landlordthereof, any hazardous condition which Tenant has created or permitted all as determined by Lender in violation of law or of this Lease;
v) Failure by Tenant to completeits reasonable discretion, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if then such failure shall continue for thirty (30) days after written not constitute an Event of Default hereunder, except as otherwise expressly provided herein, unless and until Lender shall have given Borrower notice thereof from Landlord to Tenant; provided that and a period of 30 days shall have elapsed, during which period Borrower may correct or cure such thirty (30) day period failure, upon failure of which an Event of Default shall be extended for the time reasonably required deemed to complete such cure, if have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within said thirty (such 30) -day period, as determined by Lender in its reasonable discretion, and Borrower is diligently pursuing a cure of such failure, then Borrower shall have a reasonable period and Tenant commences to cure such failure within said thirty (beyond such 30) -day period and thereafter diligently and continuously proceeds period, which shall not, except for Remediation exceed 90 days after receiving notice of the failure from Lender. Except for Remediation, if Borrower shall fail to correct or cure such failure;failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required.
vii(4) The levy upon execution or If Borrower becomes insolvent within the attachment by legal process meaning of the leasehold interest Code, files or notifies Lender that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of Tenantdebts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the filing or creation of same become due; provided that if the Action is commenced by a lien in respect party other than a Borrower Entity, the commencement of such leasehold interest, which lien Action shall not be released an Event of Default hereunder if such Action is dismissed or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days of filing thereof.
(5) If there is an "Event of Default" or a breach or default, after such appointment;
x) Any bankruptcythe passage of all applicable notice and cure or grace periods, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for other Loan Document, the relief Lease, any of debtors, is instituted (A) by Tenant the Related Loan Documents or any guarantor of Tenant’s obligations under this Leasethe Other Agreements.
(6) If a final, nonappealable judgment is rendered by a court against Borrower which (i) has a material adverse effect on the operation of any of the Premises as a Permitted Concept, or (Bii) against Tenant or is in an amount greater than $100,000.00; provided, however, that any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any judgment of the other covenants, terms nature specified in Sections 10.A(6)(i) or conditions hereof more than three (310.A(6)(ii) times, shall not result in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of DefaultDefault if (x) such judgment is discharged or provision made for such discharge within 60 days from the date of entry of such judgment, Landlord agrees to use reasonable efforts to mitigate its damagesor (y)
(1) Borrower has valid and collectible insurance coverage for such judgment and (2) the total amount of liability of the Borrower not paid or payable by such insurance, but taking into account all deductibles or self insured retentions, does not exceed $100,000.
(7) If there is a breach of the Fixed Charge Coverage Ratio requirement and Lender shall have given Borrower written notice thereof (the option to do "FCCR Amount Notice") and perform any one or more Borrower shall have failed within a period of 30 days from the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant delivery of such notice from Landlord, whereupon Landlord shall have to (i) pay to Lender the right FCCR Amount (without premium or penalty) with respect to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, (starting with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals with the lowest Fixed Charge Coverage Ratio and upon such other terms and conditions as Landlord proceeding in its sole discretion may deem advisable, and Landlord may make any alterations or repairs ascending order to the Premises which it may deem with the next lowest Fixed Charge Coverage Ratio) as is necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including cure the date of beginning of payment of rent by any subsequent tenant of part or all breach of the Premises, Fixed Charge Coverage Ratio requirement and thereafter Tenant shall pay monthly during for which the remainder then Fixed Charge Coverage Ratio (with the definitions in Section 7.J being deemed to be modified as applicable to provide for the calculation of the term Fixed Charge Coverage Ratio for each such Premises on an individual basis rather than on an aggregate basis with the other Premises) is below 1.25:1 (each, a "Subject Premises"), (ii) prepay the Note or Notes corresponding to the Subject Premises in whole but not in part (without premium or penalty) or (iii) notify Lender of this Lease Borrower's election to substitute a Substitute Premises for each Subject Premises in accordance with the difference, if any, between terms of Section 13 (the rent and other charges collected from any failure of Borrower to complete such subsequent tenant or tenants and substitution within 60 days after Borrower has delivered the rent and other charges reserved in this Lease, but Tenant shall not be entitled Proposed Substitution Notice to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease Lender shall be deemed to have been terminated upon receipt by Tenant be an Event of written Default without further notice or demand of any kind being required). For purposes of the preceding sentence, "FCCR Amount" means that sum of money which, when subtracted from the outstanding principal amount of the Note corresponding to a Subject Premises, and assuming the resulting principal balance is reamortized in equal monthly payments over the remaining term of such termination; upon Note at the rate of interest set forth therein, will result in an adjusted aggregate Fixed Charge Coverage Ratio for all of the Premises of at least 1.25:1 based on the prior year's operations. Promptly after Borrower's payment of the FCCR Amount, Borrower and Lender shall execute an amendment to each such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason Note in form and substance reasonably acceptable to Lender reducing the principal amount payable to Lender under such Note and reamortizing the principal amount of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages Note in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease monthly payments over the then reasonable rental value of the Premises for the remainder of the remaining term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, such Note at the election rate of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityinterest set forth therein.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 3 contracts
Sources: Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “17.1 An Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due Default hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated occurred upon receipt a Party's (Defaulting Party) failure to comply with any material obligation imposed upon it by Tenant this Agreement. Examples of written notice an Event of Default include, but are not limited to the following:
(i) Failure to make any payments due under this Agreement;
(ii) Failure to deliver the Supply Amount for a period of five (5) consecutive days;
(iii) Failure to follow the directions of a Control Area Operator, ISA, EDU, WSCC, NERC, PUCN, FERC, or any successor thereto where following such terminationdirections is required hereunder;
(iv) Supplier not being in compliance with Section 3; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost and
(including court costs and attorneys’ feesv) of recovering possession Failure of the Premises, Guarantor to be in compliance with the cost terms of any alteration the Guarantee delivered under Section 3.1.2.
17.2 An Event of Default shall be excused:
17.2.1 In the event such Event of Default was caused by Force Majeure provided that the Party claiming a Force Majeure complies with the requirements of Section 12; and
17.2.2 In the event such Event of Default was caused by transmission and distribution outages or repair to the Premises which is necessary or proper to prepare the same for reletting anddisruptions.
17.3 Unless excused, in addition thereto, Landlord at its election an Event of Default the Non-Defaulting Party shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant provide written notice (or oral notice in case of emergency followed by written notice) of the Event of Default to the provisions of subsection (iv) if the Lease were not terminated. Such election Defaulting Party and to specify a cure period, which cure period shall be made by Landlord by serving written notice upon Tenant a minimum of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationdays.
vi) The exercise 17.4 If an Event of Default is not cured by Landlord the Defaulting Party during the cure period specified by the Non-Defaulting Party, the Non-Defaulting Party shall be entitled to those remedies which are not inconsistent with the terms of any one or more this Agreement, including termination and the payment of the rights and remedies provided in this Lease liquidated damages. A Defaulting Party shall not prevent be liable to the subsequent exercise by Landlord Non-Defaulting Party for any punitive, consequential or incidental damages. For purposes of any one clarification, Replacement Costs shall not be considered consequential or more of the other rights and remedies herein provided. All remedies provided for in incidental damages under this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equitySection 17.4.
vii) No act by Landlord with respect 17.5 Notwithstanding this Section 17, liquidated damages shall be paid to the Premises shall terminate this LeaseBuyer pursuant to Sections 4.2, including12, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant18, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant21.
Appears in 2 contracts
Sources: Transitional Power Purchase Agreement (Wisconsin Public Service Corp), Transitional Power Purchase Agreement (Sierra Pacific Power Co)
Default and Remedies. a. The occurrence A. Each of the following shall be deemed an event of default by Debtor (each, an "Event of Default"):
(1) If any representation or warranty of any of the following shall constitute a default Debtor Entities set forth in any of the Loan Documents is false in any material respect, or if any of the Debtor Entities renders any statement or account which is false in any material respect.
(2) If any principal, interest or other monetary sum due under and breach the Notes, the Mortgages or any other Loan Documents is not paid within five days after the date when due; provided, however, notwithstanding the occurrence of this Lease by Tenant (such an “Event of Default”):
i) Failure by Tenant , FFCA shall not be entitled to pay any monetary amounts (including Base Rental exercise its rights and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any remedies set forth below unless and until FFCA shall have given Debtor Notice thereof and a period of one hundred and eighty five days from the delivery of such Notice shall have elapsed without such Event of Default being cured.
(1803) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant If Debtor fails to observe or perform any of the other covenants (except with respect to a breach of the Fixed Charge Coverage Ratio, which breach is addressed in respect of assignment and subletting subitem (6) below), conditions, or obligations of this Lease;
iv) Failure by Tenant Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or property of FFCA in immediate jeopardy, and is within the reasonable power of Debtor to promptly cure forthwith, immediately after receipt of notice from LandlordNotice thereof, any hazardous condition which Tenant has created or permitted all as determined by FFCA in violation of law or of this Lease;
v) Failure by Tenant to completeits reasonable discretion, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if then such failure shall continue for thirty (30) not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until FFCA shall have given Debtor Notice thereof and a period of 30 days after written notice thereof from Landlord to Tenant; provided that shall have elapsed, during which period Debtor may correct or cure such thirty (30) day period failure, upon failure of which an Event of Default shall be extended for the time reasonably required deemed to complete such cure, if have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within said thirty (such 30) -day period, as determined by FFCA in its reasonable discretion, and Debtor is diligently pursuing a cure of such failure, then Debtor shall have a reasonable period and Tenant commences to cure such failure within said thirty (beyond such 30) -day period and thereafter diligently and continuously proceeds period, which shall not exceed 90 days after receiving Notice of the failure from FFCA. If Debtor shall fail to correct or cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenantfailure within such 90-day period, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease Default shall be deemed to have been terminated upon receipt by Tenant occurred hereunder without further notice or demand of written any kind being required.
(4) If Debtor becomes insolvent within the meaning of the Code, files or notifies FFCA that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due.
(5) If there is an "Event of Default" under any other Loan Document or a breach or default, after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements.
(6) If there is a breach of the Fixed Charge Coverage Ratio requirement and FFCA shall have given Debtor Notice thereof and Debtor shall have failed within a period of 30 days from the delivery of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, Notice (the cost "Cure Period") to elect (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of Debtor) and complete one of the two said alternatives within thirty following options to cure such breach:
(30i) days of pay to FFCA the notice of termination.
viFCCR Amount (without premium or penalty) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting such of the Premises (starting with the Premises with the lowest Fixed Charge Coverage Ratio and proceeding in ascending order to the Premises with the next lowest Fixed Charge Coverage Ratio) as is necessary to cure the breach of the Fixed Charge Coverage Ratio requirement and for which the then Fixed Charge Coverage Ratio (with the definitions in Section 7.B being deemed to be modified as applicable to provide for the calculation of the Fixed Charge Coverage Ratio for each such Premises on an individual basis rather than on an aggregate basis with the other Premises) is below 1.25:1 (each, a "Subject Premises");
(ii) prepay the Note corresponding to each Subject Premises in whole but not in part (without premium or penalty); or
(iii) notify FFCA of Debtor's election to substitute a Substitute Premises in accordance with the terms of Section 13 for each Subject Premises (the failure of Debtor to complete such substitution within 90 days after FFCA shall have given Debtor the Notice discussed above shall be presumed deemed to be for and on behalf an Event of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to TenantDefault without further notice or demand of any kind being required).
Appears in 2 contracts
Sources: Loan Agreement (Checkers Drive in Restaurants Inc /De), Loan Agreement (Checkers Drive in Restaurants Inc /De)
Default and Remedies. a. The occurrence of any of the following (a) It shall constitute be a default Default under and breach of this Lease by if Tenant shall:
(an “Event of Default”):
i) Failure by Tenant fail to pay when due Fixed Rent or any monetary amounts (including Base Rental other charges payable under this Lease, and Additional Rental) due hereunder within such failure shall continue for ten (10) days following Business Days after Landlord shall have given Tenant written notice of non-payment from Landlord to Tenant;thereof, or
(ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant fail to observe or perform any other non-monetary covenantterm, agreement, covenant or condition or provision of this Lease, if such failure Lease on Tenant’s part to be observed or performed and Tenant shall continue for fail to remedy the same within thirty (30) days after written notice thereof from by Landlord to Tenant; Tenant specifying such failure, provided that if such failure is of such a nature that it cannot with due diligence be completely remedied within thirty (30) days and the continuation of which for the period required for cure will not subject Landlord to the risk of criminal liability or foreclosure of any Mortgage (as defined in Paragraph 23\ if Tenant shall not, (i) within such thirty (30) day period shall be extended for the time reasonably required advise Landlord of Tenant’s intention duly to complete institute all steps necessary to remedy such curesituation, if (ii) duly institute within such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period period, and thereafter diligently and continuously proceeds prosecute to cure completion all steps necessary to remedy the same, and (iii) complete such failure;
vii) The levy upon execution or remedy within such time after the attachment by legal process date of the leasehold interest giving of Tenantsaid notice by Landlord as shall reasonably be necessary, or then, in either of the filing or creation foregoing events, Landlord may (A) give Tenant a notice of a lien in respect intention to terminate this Lease at the expiration of such leasehold interest, which lien shall not be released or discharged within thirty three (303) days from the date of the service of such filing;
viiinotice of intention, and upon the expiration of said three (3) Tenant or any guarantor of Tenant’s obligations under days, this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts shall terminate but Tenant shall remain liable for damages as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Leaseprovided below, or (B) against Tenant without notice, reenter the Premises, either by summary dispossess proceedings or by any guarantor suitable action or proceeding at law or otherwise (excluding force), whether or not Landlord terminates this Lease. In addition, Landlord shall, by reason of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenantsdefault hereunder, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease as are cumulative and may, available at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Alliance Data Systems Corp)
Default and Remedies. a. The Obligor shall be deemed in default under this Agreement upon the occurrence and during the continuance of any of the following shall constitute a default under and breach of this Lease by Tenant events (each, an “"Event of Default”"):
i(a) Failure by Tenant Obligor shall default with respect to pay any monetary amounts (including Base Rental payment obligation hereunder and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any such default shall continue uncured for a period of one hundred and eighty five (1805) consecutive days without operation of Tenant’s business days; or
(b) Any representation or warranty made by Obligor in this Agreement or in the Premises);
iii) Failure by Tenant Credit Agreement, or as an inducement to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant Guarantors to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required cause such Guarantor's Guaranty to be completedissued, executed and delivered by Tenant within twenty shall be false, incorrect, incomplete or misleading in any material respect when made or furnished; or
(20c) days after the initial written demand for same to Tenant;
vi) Failure by Tenant Obligor or any of its Subsidiaries shall fail to observe or perform any other non-monetary covenant, agreementobligation, condition or provision agreement contained in this Agreement or the other Operative Documents (other than those specified in Sections 5(a)) and (i) such failure shall continue for fifteen (15) days, or (ii) if such failure is not curable within such fifteen (15) day period, but is reasonably capable of this Leasecure within thirty (30) days, if either (A) such failure shall continue for thirty (30) days after written notice thereof from Landlord or (B) Obligor or any such Subsidiary shall not have commenced a cure in a manner reasonably satisfactory to Tenant; provided that such thirty Agent within the initial fifteen (3015) day period period; or
(d) Obligor or any of its Subsidiaries shall be extended for default in the time reasonably required to complete such cureobservance or performance of any other agreement, if term or condition contained in any bond, debenture, note or other evidence of Indebtedness, and the effect of such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences or default is to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenantcause, or permit the filing holder or creation holders of such Indebtedness thereof to cause, Indebtedness in an aggregate amount for all such collective defaults of One Million Dollars ($1,000,000) or more to become due prior to its stated date of maturity; or
(e) Obligor shall (i) apply for or consent to the appointment of a lien in respect receiver, trustee, liquidator or custodian of such leasehold interestitself or of all or a substantial part of its property, which lien shall not (ii) be released unable, or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits admit in writing its inability inability, to pay its debts generally as they mature, or makes an (iii) make a general assignment for the benefit of its or any of its creditors, (iv) be dissolved or applies for liquidated, (v) become insolvent (as such term may be defined or consents interpreted under any applicable statute), (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (vii) take any action for the purpose of effecting any of the foregoing; or
(f) Proceedings for the appointment of a trustee receiver, trustee, liquidator or receiver for custodian of any Obligor or of all or a major substantial part of its property;
ix) A trustee , or receiver is appointed an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to any Obligor or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for Tenant, any guarantor of Tenant’s obligations under this Lease relief entered or for a major part of either party’s property and is such proceeding shall not be dismissed or discharged within sixty (60) days after such appointment;of commencement.
x(g) Any bankruptcy, reorganization, arrangement, insolvency A final judgment or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law order for the relief payment of debtors, is instituted money in excess of One Hundred Dollars (A$100,000) by Tenant shall be rendered against Obligor or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease its Subsidiaries and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any same shall remain undischarged for a period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days after it is due during which execution shall not be effectively stayed, or any judgment, writ, assessment, warrant of receipt by Tenant attachment, or execution or similar process shall be issued or levied against a substantial part of the property of Obligor or any of its Subsidiaries and such notice from Landlordjudgment, whereupon Landlord writ, or similar process shall not be released, stayed, vacated or otherwise dismissed within fifteen (15) days after issue or levy. Upon the occurrence and during the continuance of any such Event of Default, Agent shall have all of the rights set forth under this Agreement, the other Operative Documents and under applicable law. Upon the occurrence and during the continuance of any Event of Default under this Agreement at which time no demand has been made under the Guaranties, Agent shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises byright, at the direction ofof the Required Guarantors (provided, or with consent of Tenant. Any that if the Columbia Entities desire to take an enforcement action that Required Guarantors have not consented to, the Agent shall take such re-entry and removal by Landlord enforcement action as the Columbia Entities direct the Agent to take, provided further, that Agent shall not take such enforcement action until the earlier of itself constitute an acceptance by Landlord of a surrender of this Lease or of (A) the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon 120th day after receipt by Tenant Agent of written notice of such termination; upon enforcement action from the Columbia Entities or (B) such termination Landlord shall recover from Tenant all damages Landlord may suffer time as the Required Guarantors have provided their consent to such enforcement actions), by reason of such termination includingwritten notice to Obligor, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages to require Obligor to post cash collateral in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excessmaximum amount which may be demanded under the Guaranty, if any, of the total amount of in which case Obligor shall execute all rents and other charges such documentation as Agent may reasonably request to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationperfect Agent's security interest in such cash collateral.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 2 contracts
Sources: Reimbursement Agreement (Columbia Capital LLC), Reimbursement Agreement (DSL Net Inc)
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
(i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenantafter the same becomes due hereunder;
(ii) Abandonment of the The Leased Premises are deserted, vacated, or not used for a period exceeding thirty (defined as any period of one hundred and eighty (18030) consecutive days without operation of Tenant’s business in days, even though the Premises)Tenant continues to pay the stipulated monthly rent;
(iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Leaseset forth in Article VIII;
(iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
(v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant pursuant to Section 7.8 or Section 7.9 of this Lease, within twenty ten (2010) days after the initial written demand for same therefor to Tenant;
(vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
(vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty ten (3010) days from the date of such filing;
(viii) Any default under or breach by any guarantor of Tenant’s obligations under this Lease of such guarantor’s obligations under any agreements with Landlord;
(ix) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix(x) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x(xi) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution;
(xii) Tenant’s repeated or continued failure to timely pay any Rental due Landlord hereunder where such failure shall continue or be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months; or
xi(xiii) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three six (36) times, in the aggregate, in any period of twelve (12) consecutive months.
b. (b) Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Rules and Regulations now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall vacate the Leased Premises and remove therefrom all property thereon belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises. Any such demand, re-entry and taking possession of the Leased Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Leased Premises and remove therefrom Tenant and all property belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Leased Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such relettingreletting including but not limited to the cost of any such alterations and repairs to the Leased Premises, attorneys’ fees, leasing inducements, and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Leased Premises, the cost of any alteration of or repair to the Leased Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Leased Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (ivSection 7.1(b)(iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. All future amounts due in accordance with this Section 7.1(b)(v) shall be discounted to present value at the per annum interest rate publicly announced by a federally insured bank selected by Landlord in the state in which the Building is located as such bank’s prime or base rate.
vi(c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all claims for damages which may be caused by such re-entry or termination by Landlord. Tenant shall and does hereby indemnify and hold Landlord harmless from any loss, cost (including court costs and attorneys’ fees), or damages suffered by Landlord by reason of such re-entry or termination. No such re-entry or termination shall be considered or construed to be a forcible entry.
(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii(e) No act by Landlord with respect to the Leased Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Leased Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
(f) Upon termination of Tenant’s right to possess the Leased Premises, Landlord shall, only to the extent required by applicable law, use objectively reasonable efforts to mitigate damages by reletting the Leased Premises. Landlord shall not be deemed to have failed to do so if Landlord refuses to lease the Leased Premises to a prospective tenant that Landlord deems, in the exercise of Landlord’s business judgment, unacceptable for or incompatible with the other tenants of the Building, or who (1) is an Affiliate (as defined below), parent or subsidiary of Tenant; (2) is not acceptable to any Mortgagee of Landlord; (3) requires improvements to the Leased Premises to be made at Landlord’s expense; or (4) is unwilling to accept lease terms then proposed by Landlord, including: (a) leasing for a shorter or longer term than remains under this Lease; (b) re-configuring or combining the Leased Premises with other space, (c) taking all or only a part of the Leased Premises; and/or (d) changing the use of the Leased Premises. Notwithstanding Landlord’s duty to mitigate its damages as provided herein, Landlord shall not be obligated (i) to give any priority to reletting Tenant’s space in connection with its leasing of space in the Building or any complex of which the Building is or becomes a part, or (ii) to accept below market rental rates for the Leased Premises or any rate that would negatively impact the market rates for the Building. To the extent that Landlord is required by applicable law to mitigate damages, Tenant must plead and prove by clear and convincing evidence that Landlord failed to so mitigate in accordance with the provisions of this Section 7.1(f), and that such failure resulted in an avoidable and quantifiable detriment to Tenant.
Appears in 2 contracts
Sources: Office Lease Agreement (Cumberland Pharmaceuticals Inc), Office Lease Agreement (Cumberland Pharmaceuticals Inc)
Default and Remedies. a. A. The occurrence of any following sentence shall be added to Section 11.1(1) of the following shall constitute Lease: “Landlord agrees to provide a default under and breach written notice to Tenant of this Lease by Landlord’s intent to file an unlawful detainer action against Tenant at least three (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (103) days following written notice prior to Landlord’s actual filing thereof.”
B. There shall be added at the end of non-payment from Landlord to Tenant;
iiSection 11.1(2) Abandonment of the Premises ESE Lease the following: “; provided, however, that if the default is incapable of cure within fifteen (defined as any period of one hundred and eighty (18015) consecutive days without operation of Tenant’s business days, Tenant shall not be in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, default hereunder if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to the cure such failure within said thirty the fifteen (30) day 15)-day period and thereafter diligently and continuously proceeds prosecutes the cure to cure such failurecompletion;”
viiC. Section 11.1(9) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien ESE Lease hereby is deleted in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30its entirety.
D. Section 11.2(h) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms ESE Lease hereby is revised in its entirety as follows: “No delay or conditions hereof more than three (3) times, omission in the aggregateexercise of any right or remedy of Landlord or Tenant upon any Default by the other, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlordand, with or without terminating this Leaserespect to Landlord only, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance no exercise by Landlord of its rights pursuant to Section 25.25 to perform any duty which Tenant fails timely to perform, shall impair any right or remedy or be construed as a surrender waiver. No provision of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt waived by Landlord or Tenant unless such waiver is in writing signed by the waiving party. The waiver by Landlord or Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost any breach of any alteration provision of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord be deemed a waiver of any one or more subsequent breach of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, same or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate provision of this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.”
Appears in 2 contracts
Sources: Lease (Berkeley Lights, Inc.), Lease (Berkeley Lights, Inc.)
Default and Remedies. a. The 15.1. RevitaLid shall be in default under this Agreement (a “RevitaLid Default”) upon the occurrence of any of the following events:
15.1.1. RevitaLid shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant fail to pay when due any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document amount required to be completed, executed and delivered paid by Tenant within twenty (20) days after the initial written demand for same to TenantRevitaLid under this Agreement;
vi) Failure by Tenant 15.1.2. RevitaLid shall fail to perform or observe or perform any other non-monetary covenant, agreement, condition or provision of agreement to be performed or observed by it under this Lease, if Agreement and such failure shall continue unremedied for a period of thirty (30) days after written notice of such failure by Nephron;
15.1.3. any representation or warranty made by RevitaLid in this Agreement or in any document or certificate furnished by RevitaLid in connection with this Agreement or pursuant to this Agreement shall prove to be incorrect at any time in any material respect and such failure shall continue unremedied for a period of thirty (30) after written notice thereof by Nephron.
15.2. Upon the occurrence of any RevitaLid Default, Nephron may: (i) terminate this Agreement; and/or (ii) exercise any other right or remedy which may be available to it under any applicable law.
15.3. Nephron shall be in default under this Agreement (a “Nephron Default”) upon the occurrence of any of the following events:
15.3.1. Nephron shall fail to perform or observe any covenant, condition or agreement to be performed or observed by it under this Agreement and such failure shall continue unremedied for a period of thirty (30) days after written notice thereof from Landlord by RevitaLid; or
15.3.2. any representation or warranty made by Nephron in this Agreement or in any document or certificate furnished by Nephron in connection with this Agreement or pursuant to Tenant; provided that such thirty (30) day period this Agreement shall prove to be extended for the incorrect at any time reasonably required to complete such cure, if in any material respect and such failure cannot reasonably be cured within said thirty (30) day shall continue unremedied for a period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) written notice thereof by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsRevitaLid.
b. 15.4. Upon the occurrence of an Event of any Nephron Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one RevitaLid may: (i) terminate this Agreement; or more of the following in addition to, and not in limitation of, (ii) exercise any other right or remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, which may immediately or at be available to RevitaLid under any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demandapplicable law.
ii) Landlord15.5. In the event RevitaLid has caused a monetary default under the Agreement, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant Nephron shall not be entitled obligated to receive ship any excess of any such rents collected over the rents reserved hereinProducts or work-in-process until all amounts due and owing are paid in full.
v) Landlord may immediately 15.6. Except as otherwise provided in Section 11, of this Agreement, no right or at any time thereafter terminate remedy of either party referred to in this LeaseAgreement is intended to be exclusive, and this Lease but each shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for right or allowed by remedy under this Agreement or otherwise available to such Party at law or in equity.
vii) No act 15.7. Each party shall pay all costs, charges, and expenses, including reasonable attorneys’ fees and expenses, incurred by Landlord with respect the other party in the collection of any sums that may be due and owing to the Premises shall terminate other party by such party under this LeaseAgreement, including, but not limited to, acceptance except to the extent otherwise provided as to the costs of the keys, institution arbitration in Section 17.8 of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to TenantAgreement.
Appears in 2 contracts
Sources: Exclusive Supply Agreement (Osmotica Pharmaceuticals PLC), Exclusive Supply Agreement (Osmotica Pharmaceuticals LTD)
Default and Remedies. a. 10.1. The occurrence or existence of any one or more of the following shall will constitute a default under and breach of this Lease “Default” by Tenant under this Lease:
(an “Event of Default”):
iA) Failure by Tenant fails to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder installment or other payment of Rent within ten (10) 5 business days following of written notice of non-payment from that the same was not paid when due; however, Landlord will not be obligated to Tenantprovide more than 1 written notice within any rolling 12 calendar month period;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure fails to observe or perform any of the other covenants, terms conditions or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation provisions of this Lease, including any Rules and Tenant shall fully reimburse Regulations set forth in Exhibit “F” or any other reasonable rules and compensate Landlordregulations promulgated by Landlord from time to time during the Term, for Landlord’s actual cost incurredand fails to cure such default within 30 days after written notice thereof to Tenant, on demand.
ii) Landlordprovided that if such failure to observe or perform cannot, with the exercise of reasonable effort be cured within such 30 day period, the same will not constitute a default if Tenant commences to cure during such 30 day period and thereafter diligently and continuously prosecutes such cure to completion;
(C) the interest of Tenant in this Lease is levied upon under execution or without terminating other legal process;
(D) a petition is filed by or against Tenant to declare Tenant bankrupt or seeking a plan of reorganization or arrangement the Bankruptcy Act or any similar law, or any amendment, replacement or substitution therefor, or to delay payment of, reduce or modify Tenant’s debts, which in the case of an involuntary action is not discharged within 60 days;
(E) Tenant is declared insolvent by law or any assignment of Tenant’s property is made for the benefit of creditors;
(F) a receiver is appointed for Tenant or Tenant’s property, which appointment is not discharged within 60 days;
(G) Tenant having abandoned the Premises; provided, however, Tenant will not be deemed to have abandoned the Premises if (i) Tenant otherwise performs or causes to be performed its obligations under this Lease, may immediately or and (ii) Tenant permits Landlord to install, at any time thereafter demand Landlord’s sole cost and expense, timers in writing that Tenant vacate the reception area of the Premises to enable the lighting in the reception area to turn on at dusk and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, off at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises▇▇▇▇.
iii(H) Landlordupon the dissolution of Tenant;
(I) Tenant fails to maintain the insurance required pursuant to Article 15 of this Lease after written notice and a 20 day opportunity to cure; provided, with or without terminating however, that notwithstanding the aforementioned 20 day cure period, if Tenant fails to maintain the insurance required pursuant to Article 15 of this Lease, Landlord may immediately or at obtain such required insurance on behalf of Tenant and such event, Tenant will pay Landlord, as Additional Rent, the costs incurred by Landlord in obtaining such insurance within 20 days of Landlord’s demand therefor;
(J) Tenant fails to accept delivery of possession of any time thereafter, re-enter Phase of the Premises and remove therefrom Tenant and all property belonging to or placed on the applicable Rent Commencement Date provided that the requirements for delivery of possession of such Phase of the Premises by, at have been substantially completed by Landlord;
(K) The material failure of any representation or warranty made hereunder by Tenant which failure continues for a period of 30 days after written notice to Tenant specifying the direction ofnature of such failure; or
(L) upon the 3rd occurrence within any Lease Year that Tenant fails to pay Fixed Rent, or with consent undisputed amount of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of Additional Rent, or both, when due or has breached a surrender particular covenant of this Lease (whether or of not such failure or breach is thereafter cured within any stated cure or grace period or statutory period), provided notice has been delivered as herein required.
10.2. If a Default occurs, Landlord will have the Premises by Tenant rights and shall not of itself constitute a termination of remedies hereinafter set forth, which will be distinct and cumulative: (i) Landlord may terminate this Lease by giving Tenant notice of Landlord.
iv) Landlord’s election to do so, with or without terminating this Leasein which event, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease will end and all of Tenant’s rights and interests will expire on the differencedate stated in such notice; (ii) Landlord may terminate Tenant’s right of possession of the Premises without terminating this Lease by giving notice to Tenant that Tenant’s right of possession will end on the date specified in such notice but Tenant will nevertheless remain liable for the payment of Rent, if anywhich obligations will expressly survive the termination of this Lease; or (iii) Landlord may enforce the provisions of this Lease and may enforce and protect the rights of Landlord hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, between or for the rent enforcement of any other appropriate legal or equitable remedy, including recovery of all monies due or to become due for the balance of the Term from Tenant under any of the provisions of this Lease.
10.3. In the event that Landlord terminates this Lease or Tenant’s right to possession, subject to Landlord’s obligation to attempt to mitigate its damages pursuant to applicable laws, Landlord will be entitled to recover as damages for loss of the bargain and not as a penalty, Rent for the balance of the Term (as provided for in Section 10.4(A) of this Lease or on the dates that any future or remaining payments of Rent are due), plus all Landlord’s reasonable expenses of reletting, including without limitation, repairs, alterations, improvements, additions, decorations, legal fees and brokerage commissions (collectively, the “Reletting Expenses”); provided, however, that the commencement or maintenance of any one or more actions or proceedings will not bar Landlord from bringing other charges collected from or subsequent actions or proceedings for further accruals pursuant to the provisions of this Lease either in a single action or proceeding at the end of the Term or any one or more actions or proceedings.
10.4. In the event of any such subsequent tenant or tenants and the rent and other charges reserved in termination of this Lease, but if the Premises has not been relet, Tenant shall not will pay to Landlord each month the Fixed Rent and Additional Rent and other payments required to be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and paid by Tenant under this Lease shall be deemed up to have been terminated upon receipt by Tenant of written notice the time of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either :
(A) an The amount equal to of the excessFixed Rent and Additional Rent if this Lease were still in effect together with any and all reasonable, actual and verifiable costs paid or incurred by Landlord as a result of such termination, which costs will be payable by Tenant forthwith, less
(B) The net proceeds, if any, of the total amount any reletting, after deducting all of Landlord’s reasonable expenses in connection with such reletting, including all rents repossession costs, brokerage commissions, legal expenses, reasonable attorneys’ fees, alternation costs, repairs and other charges expenses of preparation for such reletting. Tenant will pay such current damages (“deficiency”) to be paid by Tenant for Landlord monthly on the remainder of days on which the term of Fixed Rent would have been payable under this Lease over the then reasonable rental value of the Premises for the remainder of the term of if this LeaseLease were still in effect, or (B) the rents and other charges which Landlord would will be entitled to receive recover from Tenant each monthly deficiency as the same will arise. Landlord reserves the right to bring actions or proceedings for the recovery of any deficiency remaining unpaid without being obliged to await the end of the Term for a final determination of Tenant’s account, and the commencement or maintenance of any one or more actions or proceedings will not bar Landlord from bringing other or subsequent actions or proceedings for further accruals pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationthis Lease.
vi) The exercise by 10.5. Landlord will utilize commercially reasonable measures to mitigate its damages as a result of a Default. For purposes of a reletting, Landlord is authorized to decorate, repair, alter and improve the Premises to the extent reasonably necessary or desirable. If the Premises are relet and the consideration realized therefrom after payment of all Landlord’s Reletting Expenses, is insufficient to satisfy the payment when due of Rent reserved under this Lease for any monthly period, then Tenant will pay Landlord upon demand any such deficiency monthly. Tenant agrees that Landlord may file suit to recover any sums due to Landlord hereunder from time to time and that such suit or recovery of any one or more amount due Landlord hereunder will not be any defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord.
10.6. If a Default occurs, Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at Landlord’s option, enter into the election Premises, remove Tenant’s property, fixtures, furnishings, signs and other evidences of Landlordtenancy, be exercised alternativelyand take and hold such property; provided, successivelyhowever, that such entry and possession will not terminate this Lease or release Tenant, in whole or in part, from Tenant’s obligation to pay the Rent reserved hereunder for the full Term or from any other manner obligation of Tenant under this Lease. Any and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act all property which may be removed from the Premises by Landlord with respect pursuant to the Premises shall terminate this Leaseauthority of law, includingto which Tenant is or may be entitled, but not limited tomay be handled, acceptance of removed or stored by Landlord at the keysrisk, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, cost and any reletting of the Premises shall be presumed to be for and on behalf expense of Tenant, and not Landlord will in no event, be responsible for the value, preservation or safekeeping thereof. Tenant will pay Landlord, unless upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same will be in Landlord’s possession or under Landlord’s control. Any such property of Tenant not retaken from storage by Tenant within 30 days after the Termination Date, will be conclusively presumed to have been conveyed by Tenant to Landlord expressly provides otherwise in writing under this Lease as a ▇▇▇▇ of sale without further payment or credit by Landlord to Tenant.
10.7. Tenant will pay upon demand, all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by Landlord in enforcing Tenant’s performance of its obligations under this Lease, or resulting from Tenant’s Default, or incurred by Landlord in any litigation, negotiation or transaction in which Tenant causes Landlord, without Landlord’s fault, to become involved or concerned and likewise, Landlord will pay upon demand, all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by Tenant in enforcing Landlord’s performance of its obligations under this Lease, or resulting from an Event of Landlord Default (as defined in Section 10.10 of this Lease), or incurred by Tenant in any litigation, negotiation or transaction in which Landlord causes Tenant, without Tenant’s fault, to become involved or concerned.
10.8. The following provisions will apply in the event of the bankruptcy or insolvency of Tenant:
(A) In connection with any proceeding under Chapter 7 of the Bankruptcy Code where the trustee of Tenant elects to assume this Lease for the purposes of assigning it, such election or assignment, may only be made upon compliance with the provisions of Section 10.8 (B) and (C) below, which conditions Landlord and Tenant acknowledge to be commercially reasonable. In the event the trustee elects to reject this Lease then Landlord will immediately be entitled to possession of the Premises without further obligation to Tenant or the trustee.
(B) Any election to assume this Lease under Chapter 11 or 13 of the Bankruptcy Code by Tenant as debtor-in-possession or by Tenant’s trustee (the “Electing Party”) must provide for the Electing Party to cure or provide to Landlord adequate assurance that it will cure all monetary defaults under this Lease within 15 days from the date of assumption and it will cure all nonmonetary defaults under this Lease within 30 days from the date of assumption. Landlord and Tenant acknowledge such condition to be commercially reasonable.
(C) If the Electing Party has assumed this Lease or elects to assign Tenant’s interest under this Lease to any other person, such interest may be assigned only if the intended assignee has provided adequate assurance of future performance (as herein defined), of all of the obligations imposed on Tenant under this Lease. For the purposes hereof, “adequate assurance of future performance” means that Landlord has ascertained that each of the following conditions has been satisfied:
Appears in 2 contracts
Sources: Lease Agreement (iCIMS Holding LLC), Lease Agreement (iCIMS Holding LLC)
Default and Remedies. a. The occurrence of 7.12.1 A Party (“Defaulting Party”) shall “default’’ under this Agreement if it: (a) breaches any of its material duties and obligations contained hereunder and, (b), after receiving written notice of the following shall constitute a default under and breach of this Lease by Tenant (an “Event Notice of Default”):
) from the other Party (the “Notifying Party”), fails to cure the breach within: (i) Failure by Tenant 15 days after delivery of the Notice of Default if the breach is failure to pay any monetary amounts money owed to the Notifying Party, or (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment 30 days after delivery of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant notice with respect to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Leasebreach (or, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure breach by its nature cannot reasonably be cured within said thirty (30) day period and Tenant commences to 30 days, the defaulting party must commence the cure such failure within said thirty (30) day period 30 days after delivery of the notice and thereafter diligently pursue the cure to completion). The Notice of Default contemplated by this Section shall clearly state and continuously proceeds describe: (a) each section(s) of the Agreement which the Responding Party has allegedly violated, (b) a summary of the facts and circumstances being relied upon to establish the alleged violation, (c) the specific steps (“Cure Events”) that must be undertaken to come into compliance with the Agreement, and (d) the reasonable timeframe consistent with this Section 7.12 within which time the alleged violation should be cured (“Cure Completion Date”). Utah.
7.12.2 Following a failure to cure such failure;
viithe default following the applicable Cure Completion Date, the Notifying Party may: (a) The levy upon execution or initiate an action to compel compliance by the attachment by legal process Defaulting Party with this Agreement, including injunctive relief and specific performance; (b) initiate an action to recover any damages resulting from the breach; (c) pursue any and all other rights and remedies available under Utah Law; (d) suspend the rights and interests of the leasehold interest of TenantDefaulting ▇▇▇▇▇ under this Agreement until such time as the Defaulting Party is in compliance with this Agreement; and/or (e) take the necessary action itself to cause the obligation(s) in default to be performed, or in which case the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days Notifying Party may recover from the date Defaulting Party all damages as well as all costs and expenses reasonably incurred to perform such obligation(s).
7.12.3 In addition to the foregoing remedies, in the event the Developer or Owner has failed to cure a Cure Event that is (a) material to the terms and conditions of such filing;
viiithis Agreement; and (b) Tenant the occurrence of which will unreasonably delay or any guarantor of Tenant’s prevent Developer or Owner from completing its duties and obligations under this Lease becomes insolvent Agreement (which material events include, by way of illustration and not exclusion, the filing of a bankruptcy by the Developer or bankrupt Owner and no accompanying plan for reorganization to complete the Project), the City may decline to process or admits in writing its inability to pay its debts as they matureapprove any development applications, withhold building permits, or makes an assignment for discontinue services provided under this Agreement. This City may combine remedies in its discretion, and as may fit the benefit of creditors, or applies for or consents applicable breach. In no event shall either party be liable to the appointment of a trustee other for remote or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice consequential damages derived from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination breach including, without limitation, unamortized sums expended by Landlord for leasing commissions lost business opportunities or income; delay related financing costs; damage to business reputation or goodwill; or the like.
7.12.4 The remedies shall be cumulative in nature and construction a Party may pursue some or all of tenant improvementsits remedies. In the event of any litigation arising from this Agreement, all arrearages in rentals, the substantially prevailing party shall collect its reasonable costs, chargesexpenses and fees, additional rentals, including reasonable expert fees and reimbursements, the cost (including court costs attorney’s fees.
7.12.5 Personal jurisdiction and attorneys’ fees) of recovering possession of the Premises, the cost of venue for any alteration civil action commenced by any Party to this Agreement whether arising out of or repair relating to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges this Agreement will be deemed to be paid by Tenant proper only if such action is commenced in District Court for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this LeaseGrand County, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationUtah.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 2 contracts
Sources: Subdivision Improvement Agreement, Subdivision Improvement Agreement
Default and Remedies. a. (a) The occurrence occurrences of any of the following events shall constitute a default under an Event of Default hereunder, and breach shall permit Lessor to exercise the remedies provided in Section 16(b) below, including the termination of Lessee's right to possession of the Equipment:
(i) The non-payment when due of any installment of Rent or any other sum required hereunder to be paid by Lessee within ten (10) business days of the date on which first due;
(ii) The failure by Lessee to perform any other material term, obligation, covenant or condition of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder that is not cured within ten (10) days following written notice of non-payment from Landlord after such failure or if such cure can not reasonably be completed within ten (10) days, the failure to Tenant;
ii) Abandonment of undertake with due diligence the Premises cure within ten (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (2010) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii(iii) The levy upon execution subjection of a substantial part of Lessee's property or any part of the Equipment to any Lien other than Permitted Lien unless such Lien has been discharged, satisfied or bonded against within ten (10) business days after the date the Tenant receives actual notice thereof;
(iv) Lessee shall be in default under the terms of any contract with any Person requiring the payment of money by Lessee in an amount greater than $20,000 unless such default has been waived by the creditor to whom such payment is owed;
(v) In the event that (A) Lessee shall (1) authorize or agree to the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, corporation, receivership or other similar Law now or hereafter in effect that authorized the reorganization or liquidation of such party or its debt or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation appointment of a lien in respect trustee, receiver, liquidator, custodian or other similar official of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant it or any guarantor substantial part of Tenant’s obligations under this Lease becomes insolvent its property, (2) make a general assignment for the benefit of its creditors, (3) fail generally or bankrupt or admits admit in writing its inability to pay its debts as they maturebecome due, (4) take any corporate action to authorize any of the foregoing or (5) have an involuntary or other proceeding commenced against it seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period exceeding 60 days; or (B) an order for relief pursuant to such applicable debtor/creditor law shall have been entered against Lessee;
(vi) If any representation or warranty made by Lessee herein, or makes an assignment for made by Lessee in any statement or certificate furnished by the benefit Lessee in connection with the execution of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part the delivery of either party’s property and any items of Equipment hereunder or furnished by the Lessee pursuant hereto, proves untrue in any material respect as of the date of the issuance or making thereof;
(vii) The issuance of any writ or order of attachment or execution or other legal process against any Equipment which is not discharged or satisfied within sixty fifteen (6015) days after such appointmentdays;
x(viii) Any bankruptcyThe occurrence of any event or condition described in subsections (iii), reorganization(iv), arrangement, insolvency (v) or liquidation proceeding, or other proceeding for relief under (vi) hereof with respect to any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant guarantor or any guarantor other party liable, in whole or in part, for performance of Tenant’s any of Lessee's obligations under this Lease, or .
(Bb) against Tenant or any guarantor Upon the happening of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event above Events of Default, Landlord agrees Lessor may declare this Lease in Default. Such declaration shall be by written notice to use reasonable efforts Lessee and if so stated in such notice shall apply to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or all Equipment leased hereunder. Lessee hereby authorizes Lessor at any time thereafter re-to enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with notice or without terminating this Leasenotice and process of law and in compliance with Lessee's security requirements, any premises where the Equipment may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter be and take possession of the Premises.
iii) Landlordthereof. Lessee shall, with without further demand, forthwith pay to lessor an amount that is equal to any unpaid Rent due on or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of before Lessor has declared this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Leasein Default plus, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.as
Appears in 2 contracts
Sources: Lease Agreement (Viewlocity Inc), Lease Agreement (Viewlocity Inc)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts Rental within (including Base Rental and Additional Rental) due hereunder within ten (105) days following after written notice of non-payment from Landlord to Tenantthat the same is past due;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Leasesubletting;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same therefor to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, ; or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution;
xi) Tenant’s repeated or continued failure to timely pay any Rental due Landlord hereunder where such failure shall continue or be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months; or
xixii) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three six (36) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) a. Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
ii) b. Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) c. Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Tenant Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) d. Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such relettingreletting including but not limited to the cost of any such alterations and repairs to the Premises, attorneys’ fees, leasing inducements, and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents rent collected over the rents reserved herein.
v) e. Landlord may immediately or at any time anytime thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.’
Appears in 2 contracts
Sources: Office Lease Agreement, Office Lease Agreement (Active Network Inc)
Default and Remedies. a. (a) The occurrence of any of the following events shall constitute a an event of default under and breach of this Lease by Tenant (an “Event of Default”):) under this Lease on the part of Tenant:
(i) Failure by Tenant to pay shall default in the payment of any monetary amounts Rent when due (including Base Rental Annual Basic Rent, Tenant’s Operating Expense Share, Tenant’s Tax Share and Additional Rental) due hereunder within Above Standard Services Rent), and such default shall continue for a period of ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days Business Days after written notice thereof from Landlord to Tenant; provided or
(ii) At any time that Tenant does not satisfy the Self-Insurance Net Worth Test, Tenant shall default in its obligation to maintain any policy of insurance that Tenant is required to maintain under Section 6.5 hereof, and such default shall continue for a period of ten (10) Business Days after written notice from Landlord to Tenant of such default, which notice shall (A) specifically refer to Section 6.5 hereof, and the insurance policy which Tenant has failed to maintain, and (B) state, in all capital letters and in a prominent place, that the continuance of such failure to maintain insurance for ten (10) Business Days after Tenant’s receipt of such written notice will constitute an Event of Default under this Section 7.1(a)(ii); or
(iii) Tenant shall default under any of its other obligations under this Lease (other than any default described in Section 7.1(a)(i) and (ii) above), and such default shall continue for a period of thirty (30) days after written notice from Landlord to Tenant thereof (or, if such default is curable but reasonably cannot be cured within such thirty (30) day period, then Tenant shall not commence the cure thereof within such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and or thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from diligently pursue such cure until the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver same is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsaccomplished).
b. (b) Upon the occurrence of an Event of Default, Landlord agrees subject to use reasonable efforts Section 7.1(e) below, Landlord, in addition to mitigate its damagesall other remedies available to it at law or in equity, but shall have the option right to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating terminate this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on terminate Tenant’s part right to keeppossession hereunder, observeby written notice to Tenant, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and whereupon the following provisions shall apply:
(i) Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging pursuant to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from LandlordSection 4.1 hereof, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises.
iii(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Leased Premises, and (x) repair any condition which shall constitute a default on Tenant’s part hereunder, and (y) remove any Tenant Property then located within the Leased Premises consistent with the provisions of Section 5.3 hereof.
(iii) Landlord may immediately or at anytime thereafter relet the Leased Premises or any part thereof thereof, for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisabledeems reasonable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem that are necessary or proper to facilitate such relettingreletting as office space. Landlord hereby agrees to use its commercially reasonable efforts to ________________________________________________________________________________________________________________________ relet the Leased Premises to mitigate or otherwise reduce the damages for which Tenant may be liable hereunder; provided that in no event shall Landlord’s leasing or attempted leasing of other space in the Building instead of the Leased Premises, in and of itself, violate the provisions of this sentence. Any such reletting may be for such rent, for such time, and upon such terms as the Landlord, in the Landlord’s good faith discretion, shall determine, provided, that the same shall, in all events, be commercially reasonable. Landlord shall be deemed to have exercised commercially reasonable efforts to relet the Leased Premises so long as Landlord or Landlord’s agents employ marketing methods and procedures substantially similar to marketing methods and procedures used by Landlord or Landlord’s agents to market and lease other vacant space in the Building or other buildings, which are similar in nature and quality to the Building, owned by Landlord or an Affiliate of Landlord.
(iv) Landlord shall have the right to recover from Tenant, as damages, the sum of (1) the full amount of all unpaid Annual Basic Rent and Additional Rent payable up to the time of such termination of this Lease (or termination of Tenant’s right to possession, as the case may be) (including, if applicable, any unpaid interest payable by Tenant shall pay under Section 2.1(d) hereof), plus (2) all reasonable costs of such reletting; incurred by Landlord in connection with (x) evicting Tenant from the Leased Premises, and if this Lease (y) any repairs or removals made pursuant to Section 7.1(b)(ii) above, plus (3) damages pursuant to either “(A)” or “(B)” below, as Landlord shall not have been terminatedelect:
(A) damages, Tenant shall continue to pay all rent and all other charges due under this lease up to and including payable monthly throughout the period (the “Damages Period”) commencing on the day after the date of beginning of payment of rent by any subsequent tenant of part or all such termination and ending on the last day of the PremisesTerm (determined without regard to any theretofore unexercised Renewal Options), and thereafter in a monthly sum equal to the excess (if any) of (i) the monthly Rent which would have been payable by Tenant shall pay under this Lease for such month had this Lease remained in effect, over (ii) the monthly during the remainder sums payable to Landlord for such month under any lease(s) of the term Leased Premises then in effect (net of this Lease the difference, if any, between reasonable costs incurred by Landlord to re-let the rent and other charges collected from any Leased Premises pursuant to such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but lease(s)) (it being agreed that Tenant shall not be entitled to receive any excess of any such rents collected the sums described in clause (ii) of this sentence over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages described in rentals, costs, charges, additional rentals, and reimbursements, the cost clause (including court costs and attorneys’ feesi) of recovering possession of the Premisesthis sentence); or
(B) damages, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting andpayable in a one-time lump-sum, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of (i) the present value (discounted at the Prime Rate) of the total amount of all rents and other charges to be paid Rent which would have been payable by Tenant under this Lease for the remainder entire Damages Period had this Lease remained in effect, over (ii) the present value (discounted at the same rate) of the term of this Lease over the then reasonable fair market rental value of the Leased Premises for the remainder of entire Damages Period.
(c) If Landlord re-enters the term of Leased Premises after terminating this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant Lease pursuant to the provisions of subsection (ivSection 7.1(b) if the Lease were not terminated. Such election shall above, Tenant hereby waives all claims for damages that may be made caused by Landlord such re-entry by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationLandlord, other than claims based on Landlord’s willful misconduct or negligence.
vi(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein providedprovided or otherwise permitted at law or in equity. All Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at ________________________________________________________________________________________________________________________ the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii(e) No act by Notwithstanding the provisions set forth in Section 7.1(b), Landlord with respect to the Premises shall may not terminate this LeaseLease pursuant thereto unless Tenant shall have failed to pay, includingwithout the contractual right to ▇▇▇▇▇ or offset as herein otherwise provided, but not limited toRent in an amount equal to or greater than the Threshold Default Amount, acceptance and such failure to pay continues, beyond the point of the keysbecoming an Event of Default, institution for an additional period of an action for detainer ten (10) Business Days following Tenant’s receipt of second written notice thereof from Landlord, which notice shall refer to this Section 7.1(e), and state in all capital letters (or other dispossessory proceedings, it being understood prominent display) that this Lease may only be terminated by express written notice from Landlord if Tenant fails to Tenant, and any reletting of the Premises promptly pay all overdue Rent. The “Threshold Default Amount” shall be presumed mean an amount equal to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenanttwo (2) months’ Annual Basic Rent hereunder.
Appears in 2 contracts
Sources: Lease (KBS Real Estate Investment Trust, Inc.), Lease (KBS Real Estate Investment Trust, Inc.)
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
(i) Failure by Tenant to pay any monetary amounts Rent within (including Base Rental and Additional Rental5) due hereunder within ten (10) business days following after written notice of non-payment from Landlord to Tenant;
ii) Abandonment of that the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure same is past due; failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure subletting; failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v(ii) Failure by Tenant or Guarantor to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant or Guarantor pursuant to the provisions of this Lease within twenty (20) days after the initial written demand for same therefor to Tenant;
vi(iii) Failure by Tenant or Guarantor to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to TenantTenant or Guarantor; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant or Guarantor commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii(iv) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii(v) Tenant or any guarantor of Tenant’s obligations under this Lease Guarantor becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix(vi) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either partyTenant’s property and is not discharged within sixty (60) days after such appointment;
x(vii) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this LeaseGuarantor, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease Guarantor and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution;
(viii) Tenant’s repeated or continued failure to timely pay any Rent due Landlord hereunder where such failure shall continue or be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months; or
xi(ix) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three six (36) times, in the aggregate, in any period of twelve (12) consecutive months.
b. (x) Tenant or Guarantor’s failure to comply with Section 38(o) or Section 38(r) of the Lease Agreement.
(b) Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on written demand.
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten fifteen (1015) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole reasonable discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem reasonably necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such relettingreletting including but not limited to the cost of any such alterations and repairs to the Premises, attorneys’ fees, leasing inducements, and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. Notwithstanding anything hereinabove to the contrary, under no circumstances shall Landlord be entitled to collect rent for the same period from more than one Tenant.
(vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
(vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 2 contracts
Sources: Office Lease Agreement (Emdeon Inc.), Office Lease Agreement (Emdeon Inc.)
Default and Remedies. a. The occurrence If Tenant shall (i) fail to pay any installment of Monthly Base Rent, although no legal or formal demand has been made therefor, within five (5) calendar days after the due date therefor, or (ii) fail to make any payment of Additional Rent or any other payment required by the terms and provisions hereof, within five (5) days after notice or demand therefor; or (iii) convey, assign, mortgage or sublet this Lease, the Premises or any part thereof, or Tenant’s interest therein, or attempt any of the following shall constitute foregoing, without the prior written consent of Landlord; or (iv) abandon the Premises for a default under and breach period of ten (10) consecutive calendar days (coupled with the non-payment of Rent as such amounts become due pursuant to the terms of this Lease Lease); or (v) commit or suffer to exist an Event of Bankruptcy (hereinafter defined), or (vi) fail to maintain the insurance coverage required by Section 12, above, or (vii) violate or fail to perform any of the other terms, conditions, covenants, or agreements herein made by Tenant and fails to cure such default within thirty (30) calendar days after notice, provided, however, that if the nature of Tenant’s failure is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be in default if it begins such cure within the thirty (30) day period described above and thereafter diligently prosecutes such cure to completion within an additional thirty (30) days; then there shall be deemed to have been committed an “Event of Default”):. Notwithstanding the foregoing cure periods, in the event that Tenant breaches its covenant set forth in Section 6.a. hereof on more than two (2) occasions in any nine (9) consecutive month period, then any subsequent breach of such covenant during the Term of this Lease shall be deemed to be an immediate Event of Default. Upon an Event of Default, at Landlord’s option, this Lease shall terminate, without prejudice however, to the right of Landlord to recover from Tenant all rent and any other sums accrued up to the later of: (1) the date of termination of this Lease or (2) the date Landlord recovers possession of the Premises, and without release of Tenant from any indemnification obligations to Landlord under this Lease, which indemnification obligations arose or accrued prior to the later of: (a) the date of termination of this Lease or (b) the date Landlord recovers possession of the Premises. The foregoing is not intended to, and shall not, limit Landlord in the exercise of any other remedy for such immediate Event of Default.
b. In the event of any Event of Default by Tenant as defined in Section 16.a., Landlord may at any time thereafter, without notice and demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default or breach do any of the following:
(i) Failure Landlord may terminate this Lease, by giving written notice of such termination to Tenant, whereupon this Lease shall automatically cease and terminate and Tenant shall be immediately obligated to pay quit the Premises. Any other notice to quit or notice of Landlord’s intention to re-enter the Premises is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant all rent and any monetary amounts other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later.
(ii) With or without the termination of this Lease, Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the jurisdiction in which the Building is located, or by such other proceedings, including Base Rental re-entry and Additional Rental) due hereunder within possession, as may be applicable. If this Lease is terminated or Landlord recovers possession of the Premises before the expiration of the Term by reason of Tenant’s default as hereinabove provided, or if Tenant shall abandon or vacate the Premises before the Lease Expiration Date for a period of ten (10) consecutive calendar days following written notice of (coupled with the non-payment of Rent as such amounts become due pursuant to the terms of this Lease), Landlord shall have the option to take reasonable steps to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if the full rental reserved under this Lease (and any of the costs, expenses or damages indicated below) shall not be realized by Landlord, Tenant shall be liable for all damages sustained by Landlord, including, without limitation, deficiency in rent during any period of vacancy or otherwise; the costs of removing and storing the property of Tenant or of any other occupant; all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies, including, without limitation, reasonable attorneys’ fees and Late Charges as provided herein, and advertising, brokerage fees and expenses of placing the Premises in first class rentable condition. Landlord, in putting the Premises in good order or preparing the same for rerental may, at Landlord’s option, make such alterations, repairs, or replacements in the Premises as Landlord, in its sole judgment, considers advisable and necessary for the purpose of reletting the Premises, and the making of such alterations, repairs, or replacements shall not operate or be construed to release Tenant from liability hereunder as aforesaid. If Tenant requests in writing that Landlord attempt to relet the Premises after an Event of Default by Tenant hereunder and Tenant states in such writing that an Event of Default has occurred and is continuing under the Lease, Landlord agrees to use commercially reasonable efforts to relet the Premises to another tenant (a “Substitute Tenant;”) on terms and conditions determined by Landlord in its sole discretion; provided, however, notwithstanding anything contained herein to the contrary (a) Landlord shall have no obligation to solicit or entertain negotiations with any other prospective tenants for the Premises until Landlord obtains full and complete possession of the Premises; (b) Landlord shall not be obligated to offer the Premises to a prospective tenant when other premises in the Building suitable for that prospective tenant’s use are (or soon will be) available; (c) Landlord may, but shall not be obligated to, lease the Premises to a Substitute Tenant for a rental less than the current fair market rental then prevailing for similar office uses in comparable buildings in the same market area as the Building, nor shall Landlord be obligated to enter into a new lease under other terms and conditions that are unacceptable to Landlord in its sole discretion; (d) Landlord shall not be obligated to enter into a lease with any proposed tenant whose use would: (1) violate any restriction, covenant or requirement contained in the lease of another tenant of the Building; (2) adversely affect the reputation of the Building; or (3) be incompatible with the operation of the Building as a first class building; and (e) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources or operating experience to operate the Premises in a first class manner and pay all Rent on time and fulfill all of its obligations under such new lease. Tenant agrees to use commercially reasonable efforts to mitigate any damages that Tenant may suffer as a result of any default by Landlord hereunder.
(iii) Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at Landlord’s option, at the time of termination of this Lease, the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord’s option in a single proceeding deferred until the expiration of the Term (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior to either the time of reletting or the expiration of the Term. If the Landlord elects to repossess the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such repossession, plus Rent required to be paid by Tenant to Landlord during the remainder of this Lease until the date of expiration of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period (after deducting expenses incurred by Landlord as provided in Section 16.b,(ii), above). In no event shall Tenant be entitled to any excess of any Rent obtained by reletting over and above the Rent herein reserved. Actions to collect amounts due from Tenant as provided in this Section 16.a.(iii) may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until expiration of this Lease term.
c. Notwithstanding the foregoing, if Landlord terminates this Lease pursuant to Section 16.b.(i), above, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant’s default, an amount equal to the difference between (i) all Monthly Base Rent, Additional Rent and other sums which would be payable under this Lease from the date of such demand (or, if it is earlier, the date to which Tenant shall have satisfied in full its obligations under Section 16.b.(ii), above) for what would be the then unexpired Term in the absence of such termination, and (ii) Abandonment the fair market rental value of the Premises over the same period (defined as any period net of one hundred all expenses and eighty (180) consecutive days without operation all vacancy periods reasonably projected by Landlord to be incurred in connection with the reletting of Tenant’s business in the Premises);, with such differential discounted at the rate of seven percent (7%) per annum. Nothing herein shall be construed to affect or prejudice Landlord’s right to prove, and claim in full, unpaid Rent or any other amounts accrued prior to termination of this Lease.
iii) Failure d. Notwithstanding anything herein to the contrary, upon the occurrence of an Event of Default hereunder, Landlord, with or without terminating the Lease, may immediately reenter and take possession of the Premises and evict Tenant therefrom in accordance with applicable law, without being liable for or guilty of trespass, forcible entry or any other tort.
e. Tenant hereby expressly waives any and all rights of redemption granted by or under any present of future laws in the event Tenant is evicted or dispossessed for any cause, or in the event Landlord obtains possession of the Premises, by reason of the violation by Tenant to observe or perform of any of the covenants in respect of assignment and subletting conditions of this Lease;
iv) Failure Lease or otherwise. In addition, Tenant hereby expressly waives any and all rights to bring any action whatsoever against any tenant taking possession after Tenant has been dispossessed or evicted hereunder, or to make any such tenant or party to any action brought by Tenant to cure forthwithagainst Landlord.
f. Landlord and Tenant shall and each does hereby waive trial by jury in any action, immediately after receipt proceeding or counterclaim brought by either of notice from Landlordthe parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Lease or its termination, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises or any hazardous condition which Tenant has created claim of injury or permitted in violation of law damage and any emergency statutory or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenantstatutory remedy. In the event Landlord commences any summary proceeding for nonpayment of Rent or Additional Rent, agreement, condition or provision of commences any other action or proceeding against Tenant in connection with this Lease, Tenant will interpose no counterclaim of whatever nature or description in any such proceeding, except mandatory counter-claims.
g. Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired Term. In the event of a breach or anticipatory breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not provided for herein.
h. In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for damages (Tenant hereby waiving the benefit of any laws granting Tenant a lien upon the property of Landlord or upon Rent due Landlord), but prior to any such failure action Tenant will give Landlord and any mortgagee notice specifying such default with particularity, and Landlord and/or such mortgagee shall continue for have thirty (30) days after written receipt of such notice thereof from Landlord in which to Tenantcure any such default; provided provided, however, that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure default cannot reasonably not, by its nature, be cured within said thirty (30) day such period, Landlord shall not be deemed in default if Landlord and/or such mortgagee shall within such period and Tenant commences commence to cure such failure within said thirty (30) day period default and thereafter shall diligently prosecute the same to completion. Unless and continuously proceeds until Landlord and/or any mortgagee fails so to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days default after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminatednotice, Tenant shall continue to pay have no remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; all rent and all other charges due under this lease up to and including such obligations will be binding upon Landlord only during the date period of beginning of payment of rent by any subsequent tenant of part or all its ownership of the Premises, Building and not thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from (provided that any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise uncured default by Landlord of any one or more of its obligations hereunder which occurs during Landlord’s ownership of the rights and remedies provided in this Lease Building shall not prevent the subsequent exercise by Landlord of any one or more be extinguished as a result of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, transfer or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance disposition of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated Building by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless any purchaser, transferee or subsequent owner of the Building assumes the obligations of Landlord expressly provides otherwise in writing under this Lease); and no default or alleged default by Landlord shall relieve or delay performance by Tenant of its obligations to Tenantcontinue to pay Annual Base Rent and Additional Rent hereunder as and when the same shall be due.
Appears in 1 contract
Sources: Deed of Lease (K12 Inc)
Default and Remedies. a. The occurrence of any (a) Each of the following shall constitute be deemed a default under and breach of this Lease by Tenant Lessee:
(an “Event of Default”):
i) Failure by Tenant to pay If any rent or other monetary amounts (including Base Rental and Additional Rental) sum due hereunder within ten (10) remains unpaid for 5 business days following written notice of non-payment from Landlord to Tenantthat such sum is due;
(ii) Abandonment If Lessee makes any assignment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s assets or business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of if a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenantto administer or conduct its business or affairs, or if Lessee is adjudged in any guarantor legal action to be either a voluntary or involuntary bankrupt;
(iii) If Lessee fails to perform or violates any other of Tenant’s the covenants, conditions, obligations or restrictions of this Lease; provided however, that such event shall not constitute a default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee written notice thereof and a period of 10 days thereafter shall have elapsed, during which period Lessee may correct or cure such event, upon failure of which a default shall be deemed to have occurred hereunder without further notice or demand of any kind. Notwithstanding the foregoing, if such breach or default cannot reasonably be cured within the ten (10) day period, and Lessee is diligently pursuing a cure of such breach or default, then Lessee shall, after receiving notice specified herein, have a reasonable period to cure such breach or default, not exceeding 120 days, provided Lessee continuously exercises due diligence in the cure of the same. Notwithstanding the foregoing, the failure to comply with the provisions of section 16 of this Lease dealing with compliance with Environmental Laws shall not constitute a default under this Lease if Lessee agrees to comply with such Environmental Laws and thereafter promptly, diligently and continuously works to comply with such Environmental Laws, in which event the 120 day time period set forth above shall not apply.
(b) In the event of any breach or for a major part of either party’s property default, and is not discharged within sixty without any notice, except, if applicable, the notice prior to default required under circumstances set forth in subsection (60a) days after such appointment;
x) Any bankruptcyabove, reorganizationLessor shall be entitled to exercise, arrangementat its option, insolvency or liquidation proceedingconcurrently, successively, or other proceeding for relief under in any bankruptcy combination, any and all remedies available at law or similar law for the relief of debtorsin equity, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform including without limitation any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by following:
(i) To terminate this Lease:;
i(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter To terminate Lessee’s occupancy of the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iiiPremises or any part thereof (which termination of occupancy and reentry shall result in a proportional abatement of rent (including other charges) Landlord, with or without terminating but only to the extent Lessor occupies and actually uses substantially all of the Facility in the ordinary course of Lessor’s business operation and in any event such occupancy and reentry shall not operate to terminate this Lease, may immediately or at Lease unless Lessor expressly so elects) and of any time thereafter, re-enter and all fixtures which are located on the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal owned by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.Lessor;
iv(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter To relet the Premises or any part thereof for such time term or timesterms (including a term which extends beyond the original term of this Lease), at such rental or rentals rentals, and upon such other terms and conditions as Landlord Lessor, in its sole discretion discretion, may deem advisabledetermine, with all net proceeds, after expenses, received from such reletting being applied to the rentals and Landlord other sums due from Lessee in such order as Lessor may determine, in its discretion, with Lessee remaining liable for any deficiency; with regard to any such reletting, Lessor may make any repairs, alterations and additions in or repairs to the Premises which it may deem to the extent reasonably necessary to relet and Lessee shall be liable to Lessor for such expenses;
(iv) To recover from Lessee all expenses, including attorneys’ fees, reasonably paid or proper incurred by Lessor as a result of any such default.
(v) Except as set forth in Section 27(b)(ii), to facilitate such reletting; and Tenant shall pay accelerate all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all remaining rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all Lease (less the depreciation portion of the Premises, and thereafter Tenant shall pay monthly during Basic Charge) for the remainder of the term Lease Term (or any Renewal Term) with such amount to be determined by the present value of this Lease the differenceaggregate amount of such rent, if anytaxes, between the rent insurance and other charges collected obligations of Lessee under the Lease (except for Rent, based upon the amount thereof for the year immediately preceding the month in which the default has occurred) for the period from the date in which Lessee’s occupancy of the Premises has been terminated to the stated end of the Lease Term (or any Renewal Term) (such subsequent tenant or tenants present value to be computed on the basis of a per annum discount rate equal to 3 percentage points in excess of the Prime Rate at the time of the default); and/or
(vi) To recover from Lessee all rent not theretofore accelerated and paid pursuant to the rent foregoing subsection and other charges reserved in any sums thereafter accruing as they become due under this Lease, if the Lease has not been terminated, during the period from the default to the stated end, of the Lease Term. In addition, in the event of any breach or default by Lessee, Lessor may, at its option, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may obligated to, immediately or at any time thereafter terminate this Leasethereafter, and this Lease without notice except as required herein, correct such breach or default, without, however, curing the same, for the account and at the expense of the Lessee. Any sum or sums so paid by Lessor, together with interest at the rate of 3 percentage points in excess of the Prime Rate, and all costs and damages, shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions be additional rent hereunder and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice due from Lessee to Lessor upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationdemand.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “18.1 An Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due Default hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated occurred upon receipt a Party's (Defaulting Party) failure to comply with any material obligation imposed upon it by Tenant this Agreement. Examples of written notice an Event of Default include, but are not limited to the following:
(i) Failure to make any payments due under this Agreement;
(ii) Failure to deliver the Asset Bundle Capacity for a period of thirty days;
(iii) Failure to follow the directions of a Control Area Operator, ISA, EDU, WSCC, NERC, PUCN, FERC, or any successor thereto where following such terminationdirections is required hereunder;
(iv) Supplier being in compliance with neither Section 3.1.1 nor Section 3.1.2; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost and
(including court costs and attorneys’ feesv) of recovering possession Failure of the Premises, Guarantor to be in compliance with the cost terms of any alteration the Guarantee delivered under Section 3.1.2.
18.2 An Event of Default shall be excused:
18.2.1 In the event such Event of Default was caused by Force Majeure provided that the Party claiming a Force Majeure complies with the requirements of Section 13; and
18.2.2 In the event such Event of Default was caused by transmission and distribution outages or repair to the Premises which is necessary or proper to prepare the same for reletting anddisruptions.
18.3 Unless excused, in addition thereto, Landlord at its election an Event of Default the Non-Defaulting Party shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant provide written notice (or verbal notice in case of emergency followed by written notice) of the Event of Default to the provisions of subsection (iv) if the Lease were not terminated. Such election Defaulting Party and to specify a cure period, which cure period shall be made by Landlord by serving written notice upon Tenant a minimum of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationdays.
vi) The exercise 18.4 If an Event of Default is not cured by Landlord the Defaulting Party during the cure period specified by the Non-Defaulting Party, the Non-Defaulting Party shall be entitled to those remedies which are not inconsistent with the terms of any one or more this Agreement, including termination and the payment of the rights and remedies provided in this Lease liquidated damages. A Defaulting Party shall not prevent be liable to the subsequent exercise by Landlord of Non-Defaulting Party for any one punitive, consequential or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityincidental damages.
vii) No act by Landlord with respect to the Premises shall terminate 18.5 Notwithstanding this LeaseSection 18, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises liquidated damages shall be presumed paid to be for Buyer pursuant to Sections 4.2 and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant13.
Appears in 1 contract
Sources: Transitional Power Purchase Agreement (Sierra Pacific Power Co)
Default and Remedies. a. The occurrence A. If Tenant defaults in the payment of Basic Rent or any Additional Rent (no notice thereof being required to be given by Landlord), or if the Premises shall be deserted, abandoned or vacated, or if Tenant defaults in compliance with any of the following shall constitute a default under and breach other covenants or conditions of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant the same within twenty (20) days after the initial receipt of notice specifying the default, then upon such rental default or at the expiration of such twenty (20) days, as the case may be, Landlord may (a) cancel and terminate this Lease upon written demand notice to Tenant (whereupon the Term shall terminate and expire, and Tenant shall then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided) and/or (b) at any time thereafter re-enter and resume possession of the Premises as if this Lease had not been made. Anything above to the contrary notwithstanding, the said twenty (20)-day period of time for same to Tenant;
vi) Failure by Tenant to observe or perform any other cure of non-monetary covenant, agreement, condition or provision of this Lease, if defaults shall extend beyond such failure shall continue for thirty twenty (3020) days after written notice thereof from Landlord for the period of time necessary to Tenant; effect the cure provided that Tenant shall diligently commence the cure during such thirty twenty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day 20)-day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter shall diligently and continuously proceeds prosecute the cure to cure such failure;completion.
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under B. If this Lease becomes insolvent shall be terminated or bankrupt if Landlord shall be entitled to re-enter the Premises and dispossess or admits in writing its inability remove Tenant under the provisions of this Section (either or both of which events are hereinafter referred to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default"Termination"), Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, 's Agents may immediately or at any time thereafter re-enter the Premises and correct remove therefrom Tenant, its Agents, and any subtenants and other persons, firms or repair corporations, and all or any condition which shall constitute a failure on Tenant’s part to keepof its or their property therefrom, observe, perform, satisfy, either by summary dispossess proceedings or abide by any termsuitable action or proceeding at law or by peaceable reentry or otherwise, conditionwithout being liable to indictment, covenantprosecution or damages therefor, agreementand may repossess and enjoy the Premises, or obligation including all additions, alterations and improvements thereto.
C. In case of this LeaseTermination, the Basic Rent and all other charges required to be paid by Tenant hereunder shall thereupon become due and shall be paid by Tenant up to the time of the Termination, and Tenant shall fully reimburse also pay to Landlord all reasonable expenses which Landlord may then or thereafter incur as a result of or arising out of a Termination, including but not limited to court costs, attorneys' fees, brokerage commissions, and compensate Landlordcosts of terminating the tenancy of Tenant, re-entering, dispossessing or otherwise removing Tenant and restoring the Premises to good order and condition, and from time to time altering and otherwise preparing the same for Landlord’s actual cost incurredre-letting (including but not limited to costs of removing all or any part of the Renovations or Alterations made by Tenant). Upon a Termination, on demand.
ii) LandlordLandlord may, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant from time to time (but shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafternot be obligated to), re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of let the Premises, and thereafter Tenant shall pay monthly during in whole or in part, in its own name, for a term or terms which, at Landlord's option, may be for the remainder of the term of this Lease Term, or for any longer or shorter period. Landlord shall be required to mitigate its damages.
D. In addition to the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved payments required hereinabove in this LeaseSection, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Leaseobligated to, and this Lease shall be deemed shall, pay to have been terminated Landlord, upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all demand and at Landlord's option:
(i) liquidated damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount which, at the time of Termination, is equal to the excess, if any, of the total then present amount of all rents the installments of Basic Rent and other charges to be paid by Tenant Additional Rent reserved hereunder, for the remainder period which would otherwise have constituted the unexpired portion of the term of this Lease Term over the then reasonable present rental value of the Premises for the remainder such unexpired portion of the term Term (the word "Term" for purposes of this clause (i) and the ensuing clause (ii) being deemed to include any Renewal Term then in effect or for which the option shall have theretofore been exercised); or
(ii) damages payable in monthly installments, in advance, on the first day of each calendar month following the Termination, and continuing until the date originally fixed herein for the expiration of the Term, in amounts equal to the excess, if any, of the sums of the aggregate expenses paid by Landlord during the month immediately preceding such calendar month for all such items as, by the terms of this Lease, are required to be paid by Tenant, plus an amount equal to the installment of Basic Rent which would have been payable by Tenant hereunder in respect to such calendar month, had this Lease not been terminated, over the sum of rents, if any, collected by or accruing to Landlord in respect to such calendar month pursuant to a re-letting or to any holding over by any subtenants of Tenant.
E. Landlord shall in no event be liable for failure to relet the Premises, or in the event that the Premises are re-let, for failure to collect rent due under such re-letting; and in no event shall Tenant be entitled to receive any excess of rents over the sums payable by Tenant to Landlord hereunder but such excess shall be credited to the unpaid rentals due hereunder, and to the expenses of reletting and preparing for re-letting as provided herein.
F. Suit or suits for the recovery of damages hereunder, or for any installments of rent, may be brought by Landlord from time to time at its election, and nothing herein contained shall be deemed to require Landlord to postpone suit until the date when the "Term would have expired if it had not been terminated under the provisions of this Lease, or (B) under any provision of law, or had Landlord not reentered into or upon the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationPremises.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and mayC. Landlord, at the election of Landlordits option, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided and all remedies available to it, shall have the right to charge a fee for or allowed by law or in equity.
viipayment of rent received later than ten (10) No act by Landlord with respect to days after the Premises date due, which fee shall terminate this Lease, including, but not limited to, acceptance be the greater of five percent (5%) of the keys, institution of an action for detainer delinquent payment or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting one percent (1%) per month of the Premises shall be presumed to be for and on behalf amount of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantthe overdue rent.
Appears in 1 contract
Sources: Lease Agreement (Teardrop Golf Co)
Default and Remedies. a. (a) The occurrence of any one or more of the following shall constitute a default under and breach of this Lease by Tenant events (each an “Event of Default”):) shall constitute a breach of this Lease by Tenant:
(i) Failure by Tenant fails to pay any monetary amounts Basic Monthly Rental or additional monthly rent under Paragraph 4(b) hereof as and when such rent becomes due and payable and such failure continues for more than three business (including Base Rental 3) days after Landlord gives written notice thereof to Tenant; provided, however, that after the second such failure in a calendar year, only the passage of time, but no further notice, shall be required to establish an Event of Default in the same calendar year; or
(ii) Tenant fails to pay any additional rent or other amount of money or charge payable by Tenant hereunder as and Additional Rental) when such additional rent or amount or charge becomes due hereunder within and payable and such failure continues for more than ten (10) days following after Landlord gives written notice of non-payment from Landlord thereof to Tenant;
ii) Abandonment ; provided, however, that after the second such failure in a calendar year, only the passage of the Premises (defined as any period time, but no further notice, shall be required to establish an Event of one hundred and eighty (180) consecutive days without operation of Tenant’s business Default in the Premises);same calendar year; or
(iii) Failure Tenant fails to perform or breaches any other agreement or covenant of this Lease to be performed or observed by Tenant to observe as and when performance or perform any of the covenants in respect of assignment observance is due and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created such failure or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty breach continues for more than ten (2010) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after Landlord gives written notice thereof from Landlord to Tenant; provided provided, however, that if, by the nature of such thirty (30) day period shall be extended for the time reasonably required to complete such cureagreement or covenant, if such failure or breach cannot reasonably be cured within said thirty such period of ten (3010) day period and days, an Event of Default shall not exist as long as Tenant commences to cure with due diligence and dispatch the curing of such failure or breach within said thirty such period of ten (3010) day period days and, having so commenced, thereafter prosecutes with diligence and thereafter diligently dispatch and continuously proceeds completes the curing of such failure or breach within a reasonable time; or
(iv) Tenant (A) is generally not paying its debts as they become due, (B) files, or consents by answer or otherwise to cure such failure;
viithe filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, (C) The levy upon execution makes an assignment for the benefit of its creditors, (D) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers of Tenant or of any substantial part of Tenant’s property, or (E) takes action for the attachment by legal process purpose of any of the leasehold interest of foregoing; or
(v) Without consent by Tenant, a court or the filing or creation of a lien in respect of government authority enters an order, and such leasehold interest, which lien shall order is not be released or discharged vacated within thirty (30) days from days, (A) appointing a custodian, receiver, trustee or other officer with similar powers with respect to Tenant or with respect to any substantial part of Tenant’s property, or (B) constituting an order for relief or approving a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any jurisdiction, or (C) ordering the date dissolution, winding-up or liquidation of Tenant; or
(vi) This Lease or any estate of Tenant hereunder is levied upon under any attachment or execution and such filing;attachment or execution is not vacated within thirty (30) days; or
(vii) Tenant vacates or abandons the Premises; or
(viii) Tenant or any guarantor If the performance of Tenant’s obligations under this Lease becomes is guaranteed: (a) the death of a Guarantor, (b) the termination of a Guarantor’s liability with respect to this Lease other than in accordance with the terms of such guaranty, (c) a Guarantor’s becoming insolvent or bankrupt the subject of a bankruptcy filing, (d) a Guarantor’s revocation of or admits in writing its inability refusal to pay its debts as they maturehonor the guaranty, or makes (e) a Guarantor’s breach of its guaranty obligation on an assignment anticipatory basis, and Tenant’s failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Tenant, equals or exceeds the combined financial resources of Tenant and the Guarantor that existed at the time of execution of this Lease.
(b) If an Event of Default occurs, Landlord shall have the right at any time to give a written termination notice to Tenant and, on the date specified in such notice, Tenant’s right to possession shall terminate and this Lease shall terminate. Upon such termination, Landlord shall have the right to recover from Tenant:
(i) The worth at the time of award of all unpaid rent that had been earned at the time of termination;
(ii) The worth at the time of award of the amount by which all unpaid rent that would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided;
(iii) The worth at the time of award of the amount by which all unpaid rent for the benefit balance of creditors, or applies for or consents the term of this Lease after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and
(iv) All other amounts necessary to the appointment of a trustee or receiver compensate Landlord for all or a major part of its property;
ix) A trustee or receiver is appointed for detriment proximately caused by Tenant, any guarantor ’s failure to perform all of Tenant’s obligations under this Lease or for a major part that in the ordinary course of either party’s property things would be likely to result therefrom. The “worth at the time of award” of the amounts referred to in clauses (i) and is not discharged within sixty (60ii) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar above shall be computed by allowing interest at the maximum annual interest rate allowed by law for business loans (not primarily for personal, family or household purposes) not exempt from the relief usury law at the time of debtorstermination or, if there is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after no such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises bymaximum annual interest rate, at the direction of, or with consent rate of Tenant within ten eighteen percent (1018%) days per annum. The “worth at the time of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession award” of the Premises.
amount referred to in clause (iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, above shall be computed by discounting such amount at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or discount rate of the Premises by Tenant Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). For the purpose of determining unpaid rent under clauses (i), (ii) and shall not of itself constitute a termination of this Lease by Landlord.
iv(iii) Landlordabove, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt be the total rent payable by Tenant under Articles 3 and 4 hereof; for purposes of written notice computing Tenant’s Percentage Share of such termination; upon such termination Landlord increases in Operating Expenses over the Base Year and Real Property Taxes over the Tax Base Year for the calendar year in which the default occurs and each future calendar year or portion thereof in the Lease Term, Tenant’s Percentage Share of increases in Operating Expenses and Real Property Taxes shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair be assumed to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount be equal to the excessamount thereof for the calendar year prior to the year in which the default shall occur, increased annually at a rate equal to the average rate of increase, if any, in such items from the Commencement Date through the time of the total amount of all rents and other charges to be paid by award.
(c) Even though Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of has breached this Lease, or (B) this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to possession, and Landlord shall have all of its rights and remedies, including the rents and other charges which Landlord would be entitled to receive from Tenant right, pursuant to California Civil Code Section 1951.4, to recover all rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to relet the provisions Premises or the appointment of subsection (iv) if the Lease were not terminated. Such election shall be made by a receiver upon initiative of Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in to protect Landlord’s interest under this Lease shall not prevent the subsequent exercise constitute a termination of Tenant’s right to possession unless written notice of termination is given by Landlord of any one or more of the other rights and remedies herein provided. All to Tenant.
(d) The remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any all other rights provided for or allowed by remedies available to Landlord at law or in equity.
vii) No act , by statute or otherwise. All costs incurred by Landlord in connection with respect collecting any Rent or other amounts and damages owing by Tenant pursuant to the Premises shall terminate provisions of this Lease, includingor to enforce any provision of this Lease, but including reasonable attorneys’ fees from the date such matter is turned over to an attorney, whether or not limited toone or more actions are commenced by Landlord, acceptance shall also be recoverable by Landlord from Tenant. If any notice and grace period required under subparagraphs 18(a)(i), (ii) or (iii) was not previously given, a notice to pay rent or quit, or to perform or quit, as the case may be, given to Tenant under any statute authorizing the forfeiture of leases for unlawful detainer shall also constitute the applicable notice for grace period purposes required by subparagraphs 18(a)(i), (ii) or (iii). In such case, the applicable grace period under subparagraphs 18(a)(i), (ii) or (iii) and under the unlawful detainer statute shall run concurrently after the one such statutory notice, and the failure of Tenant to cure the default within the greater of the keys, institution two (2) such grace periods shall constitute both an unlawful detainer and an Event of Default entitling Landlord to the remedies provided for in this Lease and/or by said statute.
(e) In the event that Tenant’s right of possession of the Premises is terminated prior to the end of the initial Term by reason of an action for detainer or other dispossessory proceedingsEvent of Default by Tenant, it being understood then immediately upon such termination, an amount shall be due and payable by Tenant to Landlord equal to the unamortized portion as of that date (which amortization shall be based on an interest rate of eleven percent (11%) per annum) of the sum of (a) the cost of Landlord’s Work (if any), (b) the Allowance (if any), (c) the value of any free Rent (i. e., the Rent stated in this Lease may only to be terminated abated as an inducement to Tenant’s entering into this Lease) enjoyed as of that date by express written notice from Landlord to Tenant, and any reletting (d) the amount of the Premises shall be presumed all commissions paid by Landlord in order to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantprocure this Lease.
Appears in 1 contract
Sources: Sublease Agreement (Invitae Corp)
Default and Remedies. a. 13.1 The occurrence of any of the following shall constitute a material default under and breach of this Lease by Tenant Lessee:
(an “Event of Default”):
ia) Failure Any failure by Tenant lessee to pay the rent or any other monetary amounts sums required to be paid hereunder where such failure continues for five (including Base Rental and Additional Rental5) due hereunder within ten (10) business days following after receipt of written notice of non-payment thereof from Landlord to TenantLessor that such amounts are past due;
ii(b) Abandonment The complete abandonment of the Premises by Lessee for at least thirty (defined as any period of one hundred and eighty (18030) consecutive days without operation of Tenant’s business in the Premises)days;
iii(c) Failure A failure by Tenant Lessee to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this LeaseLease to be observed or performed by Lessee, if where such failure shall continue continues for thirty (30) days after receipt of written notice thereof from Landlord to TenantLessor; provided provided, however, that if the nature of such thirty (30) day period shall be extended for default is such that the time reasonably required to complete such cure, if such failure same cannot reasonably be cured within said thirty (30) such thirty-day period, Lessee shall not be deemed to be in default if Lessee shall within such period and Tenant commences to commence such cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds prosecute the same to cure such failure;completion; and
vii(d) The levy upon execution making by Lessee of any general assignment or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment general arrangement for the benefit of creditors; the filing by or against Lessee of a petition to have Lessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, or applies for or consents to in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); the appointment of a trustee or receiver for to take possession of substantially all of Lessee’s assets located at the Premises or a major part of its property;
ix) A trustee or receiver is appointed for TenantLessee’s interest in this Lease, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and where such seizure is not discharged within sixty thirty (6030) days after days. Table of Contents
13.2 In the event of any such appointment;
x) Any bankruptcymaterial default or breach by Lessee, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, Lessor may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises after giving Lessee notice and/or demand and remove therefrom Tenant and all property belonging in addition to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of other remedies provided herein:
(a) Maintain this Lease or of the Premises by Tenant in full force and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals effect and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between recover the rent and other monetary charges collected from as they become due, without terminating Lessee’s right to possession, irrespective or whether Lessee shall have abandoned the Premises; or
(b) Terminate Lessee’s right to possession by any lawful means, in which case this Lease shall terminate and Lessee shall surrender possession of the Premises to Lessor. In such subsequent tenant or tenants and the rent and other charges reserved in this Leaseevent, but Tenant Lessor shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant Lessee all damages Landlord may suffer incurred by Lessor by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationLessee’s default.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence of any (a) Each of the following shall constitute be deemed a default under and breach of this Lease by Tenant Lessee:
(an “Event of Default”):
i) Failure by Tenant to pay If any rent or other monetary amounts (including Base Rental and Additional Rental) sum due hereunder within ten (10) remains unpaid for 5 business days following written notice of non-payment from Landlord to Tenantthat such sum is due;
(ii) Abandonment If Lessee makes any assignment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s assets or business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of if a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenantto administer or conduct its business or affairs, or if Lessee is adjudged in any guarantor legal action to be either a voluntary or involuntary bankrupt;
(iii) If Lessee fails to perform or violates any other of Tenant’s the covenants, conditions, obligations or restrictions of this Lease; provided, however, that such event shall not constitute a default hereunder, unless otherwise expressly provided herein, unless and until Lessor shall have given Lessee written notice thereof and a period of 10 days thereafter shall have elapsed, during which period Lessee may correct or cure such event, upon failure of which a default shall be deemed to have occurred hereunder without further notice or demand of any kind. Notwithstanding the foregoing, if such breach or default cannot reasonably be cured within the ten (10) day period, and Lessee is diligently pursuing a cure of such breach or default, then Lessee shall, after receiving notice specified herein, have a reasonable period to cure such breach or default, not exceeding 120 days, provided Lessee continuously exercises due diligence in the cure of the same. Notwithstanding the foregoing, the failure to comply with the provisions of section 16 of this Lease dealing with compliance with Environmental Laws shall not constitute a default under this Lease if Lessee agrees to comply with such Environmental Laws and thereafter promptly, diligently and continuously works to comply with such Environmental Laws, in which event the 120 day time period set forth above shall not apply.
(b) In the event of any breach or for a major part of either party’s property default. and is not discharged within sixty without any notice, except, if applicable, the notice prior to default required under circumstances set forth in subsection (60a) days after such appointment;
x) Any bankruptcyabove, reorganizationLessor shall be entitled to exercise, arrangementat its option, insolvency or liquidation proceedingconcurrently, successively, or other proceeding for relief under in any bankruptcy combination, any and all remedies available at law or similar law for the relief of debtorsin equity, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform including without limitation any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by following:
(i) To terminate this Lease:;
i(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter To terminate Lessee’s occupancy of the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iiiPremises or any part thereof (which termination of occupancy and reentry shall result in a proportional abatement of rent (including other charges) Landlord, with or without terminating but only to the extent Lessor occupies and actually uses substantially all of the Facility in the ordinary course of Lessor’s business operation and in any event such occupancy and reentry shall not operate to terminate this Lease, may immediately or at Lease unless Lessor expressly so elects) and of any time thereafter, re-enter and all fixtures which are located on the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal owned by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.Lessor;
iv(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter To relet the Premises or any part thereof for such time term or timesterms (including a term which extends beyond the original term of this Lease), at such rental or rentals rentals, and upon such other terms and conditions as Landlord Lessor, in its sole discretion discretion, may deem advisabledetermine, with all net proceeds, after expenses, received from such reletting being applied to the rentals and Landlord other sums due from Lessee in such order as Lessor may determine, in its discretion, with Lessee remaining liable for any deficiency; with regard to any such reletting, Lessor may make any repairs. alterations and additions in or repairs to the Premises which it may deem to the extent reasonably necessary to relet and Lessee shall be liable to Lessor for such expenses;
(iv) To recover from Lessee all expenses, including attorneys’ fees, reasonably paid or proper incurred by Lessor as a result of any such default;
(v) Except as set forth in Section 27(b)(ii), to facilitate such reletting; and Tenant shall pay accelerate all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all remaining rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all Lease (less the depreciation portion of the Premises, and thereafter Tenant shall pay monthly during Basic Charge) for the remainder of the term Lease Term (or any Renewal Term) with such amount to be determined by the present value of this Lease the differenceaggregate amount of such rent, if anytaxes, between the rent insurance and other charges collected obligations of Lessee under the Lease (except for Rent, based upon the amount thereof for the year immediately preceding the month in which the default has occurred) for the period from the date in which Lessee’s occupancy of the Premises has been terminated to the stated end of the Lease Term (or any Renewal Term) (such subsequent tenant or tenants present value to be computed on the basis of a per annum discount rate equal to 3 percentage points in excess of the Prime Rate at the time of the default); and/or
(vi) To recover from Lessee all rent not theretofore accelerated and paid pursuant to the rent foregoing subsection and other charges reserved in any sums thereafter accruing as they become due under this Lease, if the Lease has not been terminated, during the period from the default to the stated end, of the Lease Term. In addition, in the event of any breach or default by Lessee, Lessor may, at its option, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may obligated to, immediately or at any time thereafter terminate this Leasethereafter, and this Lease without notice except as required herein, correct such breach or default, without, however, curing the same, for the account and at the expense of the Lessee. Any sum or sums so paid by Lessor, together with interest at the rate of 3 percentage points in excess of the Prime Rate, and all costs and damages, shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions be additional rent hereunder and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice due from Lessee to Lessor upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationdemand.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Real Estate and Equipment Lease Agreement (Johnson Polymer Inc)
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach an Event of this Lease by Tenant Default (an “Event of Default”):) under this Lease on the part of Tenant:
(i) Failure by Tenant to pay any monetary amounts payment of Rent when due (including Base Rental Annual Basic Rent, Excess Basic Rent, if any, Tenant’s Operating Expense Share, Tenant’s Tax Share and Additional RentalAbove Standard Services Rent) due hereunder within and such failure to pay continues for a period of ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that Landlord shall not be obligated to send written notice of a failure to pay more than two (2) times in any consecutive twelve (12) month period, or
(ii) At any time that Tenant does not satisfy the Net Worth Test, failure of Tenant to maintain any policy of insurance that Tenant is required by the terms of this ________________________________________________________________________________________________________________________ Lease to maintain and such failure continues for a period of ten (10) business days after written notice from Landlord to Tenant of such failure, which notice shall (A) specify the insurance policy which Tenant has failed to maintain and the provision of this Lease which requires Tenant to maintain such insurance, and (B) state, in all capital letters and in a prominent place, that the continuance of such failure to maintain insurance for ten (10) business days after Tenant’s receipt of such written notice will constitute an Event of Default under Section 7.1(a) of the Lease, or
(iii) Tenant breaches or fails to comply with any term, provision, condition or covenant of this Lease, other than as described in Section 7.1(a)(i) and (ii), and such breach or failure continues for thirty (30) days after written notice from Landlord to Tenant of such breach or failure to comply (or, if such breach or failure is curable but reasonably cannot be cured within thirty (30) days, Tenant does not commence to cure such breach or failure promptly within such thirty (30) day period and continuously and diligently thereafter pursue such cure and remedy until such breach or failure is remedied; provided that there shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty a maximum period of one hundred eighty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60180) days after Landlord’s written notice to cure or remedy such appointment;
x) Any bankruptcydefault, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding except that such maximum cure period shall extended as appropriate for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) delays caused by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsForce Majeure Events.
b. (b) Upon the occurrence of an Event of Default, subject to Section 7.1(e) below, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord may immediately or at any time thereafter, collect all overdue Rent and other charges payable to Landlord, together with or without terminating this LeaseLandlord’s legal fees and costs of enforcement, with interest at the Applicable Rate from the date such sums were originally due until the date paid in full.
(ii) Landlord may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Building Rules now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
ii(iii) Subject to the limitations expressed in Section 7.1(e), Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall immediately vacate the Leased Premises and remove therefrom all property thereon (other than Non-Removable Improvements) belonging to or placed on in the Leased Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from LandlordTenant, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises.. Any such demand, re-entry and taking possession of the Leased Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. ________________________________________________________________________________________________________________________
iii(iv) LandlordSubject to the limitations expressed in Section 7.1(e), with or without terminating this Lease, Landlord may immediately or at any time thereafter, re-enter the Premises Leased Premises, and if persons or any of Tenant’s property are then in the Leased Premises, then, upon prior written notice to Tenant, Landlord may remove therefrom Tenant and all property belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant, all at Tenant’s expense. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv(v) Subject to the limitations expressed in Section 7.1(e), Landlord, with or without terminating this Lease, may immediately or at any time anytime thereafter relet the Leased Premises or any part thereof thereof, for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisabledeems reasonable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem that are necessary or proper to facilitate such relettingreletting as office space; and Tenant shall pay all reasonable costs of such reletting, including the cost of any such alterations and repairs to the Leased Premises and reasonable attorneys’ fees actually incurred; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges Rent due under this lease Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease Term the differenceamount, if any, between by which the Rent and other charges reserved in this Lease exceed the rent and other charges collected from any such subsequent tenant or tenants (net of the costs Landlord incurred to re-enter and relet the rent and other charges reserved in this LeaseLeased Premises), but Tenant shall not be entitled to receive any excess of any such rents collected over the rents Rent reserved herein. Landlord hereby agrees to use its commercially reasonable efforts to relet the Leased Premises to mitigate or otherwise reduce the damages for which Tenant may be liable hereunder, but only to the extent required under applicable law in the state in which the Building is located; provided that in no event shall Landlord’s leasing or attempted leasing of other space in the Building instead of the Leased Premises, in and of itself, violate the provisions of the preceding sentence. Any such reletting may be for such rent, for such time, and upon such terms as the Landlord, in the Landlord’s good faith discretion, shall determine to be commercially reasonable. Landlord shall be deemed to have exercised commercially reasonable efforts to relet the Leased Premises so long as Landlord or Landlord’s agents employ marketing methods and procedures substantially similar to marketing methods and procedures used by Landlord or Landlord’s agents to market and lease vacant space in other buildings, which are similar in nature and quality to the Building, owned by Landlord or an affiliate of Landlord.
v(vi) Subject to the limitations expressed in Section 7.1(e), Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by notice to Tenant of written notice of such termination; upon such termination Landlord shall elect to either recover from Tenant (A) all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, including all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and reasonable attorneys’ fees) of recovering possession of the Leased Premises, the actual or estimated (as reasonably estimated by Landlord) cost of any alteration of or repair to of the Leased Premises which that is necessary or proper to prepare the same for reletting andas office ________________________________________________________________________________________________________________________ space, or (B) all arrearages in addition theretorentals, Landlord at its election shall have and recover from Tenant either (A) plus an amount equal to the excess, if any, of the present value discounted at the Prime Rate of the total amount of all rents and other charges Rent to be paid by Tenant for the remainder of the term of this Lease Term, over the then reasonable present value (discounted at the same rate) of the fair market rental value of the Leased Premises for the remainder of the term Term.
(c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all claims for damages that may be caused by such re-entry or (B) the rents and other charges which termination by Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection this Lease. Tenant shall and does hereby indemnify and hold Landlord harmless from any loss, cost (iv) if the Lease were not terminated. Such election shall be made including court costs and attorneys’ fees), or damages suffered by Landlord by serving written notice upon Tenant reason of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationsuch re-entry or termination unless caused by Landlord’s gross negligence.
vi(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii(e) No act by Notwithstanding the provisions set forth in Sections 7.1(b)(iii) through (vi), Landlord may not:
(i) terminate this Lease as to any Property or Properties unless either (A) Tenant shall have failed to pay, without the contractual right to ▇▇▇▇▇ or offset as herein otherwise provided, Rent for such Property or Properties in an amount equal to or greater than the amount of three (3) months’ Annual Basic Rent then due and payable with respect to the Premises such Property or Properties, and such failure to pay continues for a period of ten (10) days following Tenant’s receipt of written notice thereof from Landlord, which notice shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer state in all capital letters (or other dispossessory proceedings, it being understood prominent display) that this Lease may only be terminated as to such Property or Properties if Tenant fails to promptly pay all overdue Rent for such Properties or Properties, or (B) Tenant shall fail to comply with any final order relating to such Property or Properties rendered pursuant to the dispute resolution procedures outlined in Article XII within the time periods set forth in such order, or, if no time periods are set forth therein, then within such time period as is reasonably necessary to promptly and diligently comply with such order, but not to exceed sixty (60) days, subject to appropriate extensions for delays caused by express Force Majeure Events, and such failure to comply continues for a period of thirty (30) days following Tenant’s receipt of written notice thereof from Landlord, which notice shall state in all capital letters (or other prominent display) that this Lease may be terminated as to such Property or Properties if Tenant fails to promptly comply with the requirements of such order; or
(ii) terminate this Lease in its entirety unless Tenant shall have failed to pay, without the contractual right to ▇▇▇▇▇ or offset as herein otherwise provided, Rent in an amount equal to or greater than the amount of three (3) months’ Annual Basic Rent then due and payable with respect to all Properties under this Lease, and such failure to pay continues for a period of ten (10) days following Tenant’s receipt of written notice thereof from Landlord, which notice shall state in all capital letters (or other prominent ________________________________________________________________________________________________________________________ display) that this Lease may be terminated if Tenant fails to promptly pay all overdue Rent.
(f) If Landlord should fail to perform or observe any covenant, term, provision or condition of this Lease and such default should continue beyond a period of ten (10) days as to a monetary default or thirty (30) days (or such longer period as is reasonably necessary to remedy such default; provided Landlord shall continuously and diligently pursue such remedy at all times until such default is cured) as to a non-monetary default, after in each instance written notice thereof is given by Tenant to Landlord (and a copy of said notice is sent simultaneously therewith to the Notice Parties) (“Landlord Default”), then, in any such event Tenant shall have the right, (i) to cure or attempt to cure the Landlord Default (upon twenty-four (24) hours’ notice in the event of an emergency, notwithstanding the foregoing provisions of this Section 7.1(f)), and Landlord shall reimburse Tenant for all reasonable sums expended in so curing the Landlord Default or (ii) to commence such actions at law or in equity to which Tenant may be entitled. The exercise by Tenant of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Tenant of any one or more of the other rights and remedies herein provided. Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the election of Tenant, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity, including the right to claim that Tenant has been constructively evicted.
(g) Notwithstanding the provisions of Section 7.1(e) hereof, if Landlord should fail to maintain any policy of insurance which Landlord is required by the terms of this Lease to maintain and such failure continues for a period of ten (10) business days after written notice from Tenant to Landlord and all Notice Parties of such failure, which notice shall (A) specify the insurance policy which Landlord has failed to maintain and the provision of this Lease which requires Landlord to maintain such insurance. Tenant, ’s sole and exclusive recourse and remedy for Landlord’s failure to maintain any reletting such policy of the Premises insurance shall be presumed limited to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise the limited offset right provided in writing to TenantSection 13.1.
Appears in 1 contract
Sources: Master Lease Agreement (KBS Real Estate Investment Trust, Inc.)
Default and Remedies. a. The occurrence of any one or more of the following shall constitute a default under and breach of this Lease by Tenant (an “"Event of Default”):";
i(a) Failure Default be made in the payment of any obligation by Tenant Borrower under any Loan Document;
(b) Except for any failure to pay as described in clause (a) above, breach be made in any monetary amounts (including Base Rental warranty, statement, promise, term or condition, contained herein or in any other Loan Document and Additional Rental) due hereunder the same shall not have been cured to the satisfaction of Bank within ten (10) days following after Borrower shall have received notice thereof or any Responsible Officer of Borrower became aware thereof, whether by written notice of non-payment from Landlord to Tenant;
iiBank, or otherwise; provided, that if the default cannot by its nature be cured within the ten (10) Abandonment of the Premises day period or cannot after diligent attempts by Borrower be cured within a reasonable time then Borrower shall have an additional reasonable period (defined as which shall not in any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for case exceed thirty (30) days after written notice thereof from Landlord days) to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences attempt to cure such default, and within such reasonable time period the failure within said thirty (30) day to have cured such default shall not be deemed an Event of Default; provided further, that no cure period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien shall exist for breaches in respect of Borrower's obligations under SECTION 8, SUBSECTIONS 9.A, 9.B, 9.C, 9.D, 9.F, 9.G, 9.H, 9.I and 9.L, and SECTION 10 of this Loan Agreement); provided further, that no loans will be required to be made during such leasehold interestcure period;
(c) Any statement, warranty or representation made by Borrower at any time proves false;
(d) Borrower defaults in the repayment of any principal of or the payment of any interest on any indebtedness exceeding in the aggregate principal amount $500,000 or breaches or violates any term or provision of any promissory note, loan agreement, mortgage, indenture or other evidence of such indebtedness pursuant to which lien amounts outstanding in the aggregate exceed $500,000 if the effect of such breach is to permit the acceleration of such indebtedness, whether or not waived by the note holder or obligee, and such failure shall not be released have been cured to Bank's satisfaction within fifteen (15) calendar days after Borrower shall become aware thereof, whether by written notice from Bank or discharged within thirty (30) days from the date otherwise, or there has in fact been an acceleration of such filingindebtedness;
viii(e) Tenant or any guarantor of Tenant’s obligations under this Lease Borrower becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
xf) Any proceeding be commenced by Borrower under any bankruptcy, reorganization, arrangement, insolvency readjustment of debt or liquidation proceeding, or other proceeding for relief under any bankruptcy moratorium law or similar law for the relief of debtorsstatute or, any such a proceeding is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) commenced against Tenant or any guarantor of Tenant’s obligations under this Lease Borrower and is allowed against it or is consented to by it or is not dismissed or stayed within sixty ten (6010) days after (provided that no Loans will be made prior to the dismissal of such institutionproceeding);
(g) Any money judgment, writ of attachment, garnishment, execution or other legal process be entered against Borrower or issued against any material Property of Borrower which is not fully covered by insurance (subject to reasonable deductibles) and remains unvacated, unbonded, unstayed or unpaid or undischarged for more than fifteen (15) days (whether or not consecutive) or in any event later than five (5) days prior to the date of any proposed sale thereunder, or if any assessment for taxes against Borrower other than against any of its real property, is made by the Federal or State government or any department thereof;
(h) The occurrence of a Termination Event with respect to any Pension Plan if the aggregate liability of Borrower and its ERISA Affiliates under ERISA as a result thereof, when added to the amount of all other such liabilities incurred since the date hereof, exceeds $500,000;
(i) Any change in Borrower's financial condition, prospects or operations which has a Material Adverse effect; or
xi(j) Tenant’s repeated failure There shall occur a sale, transfer, disposition or encumbrance (whether voluntary or involuntary), or an agreement shall be entered into to observe do so, with any Person or perform any group of Persons (as such terms are defined pursuant to Federal securities laws) with respect to more than 20% of the other covenantsissued and outstanding capital stock of the Borrower and, terms as a result thereof, such Person or conditions hereof more than three (3) times, in group of Persons has the aggregate, in any period ability to direct or cause the direction of twelve (12) consecutive months.
b. the management and policies of the Borrower. Upon the occurrence and during the continuance of an Event of Default, Landlord agrees Bank may, at its option and without demand or presentment first made and without notice to use reasonable efforts to mitigate its damagesBorrower, but shall have the option to all of which are hereby expressly waived, do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
following: (i) Landlord, with Terminate its obligation to make loans to Borrower as provided in SECTION 1 hereof; or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
(ii) Landlord, with or without terminating this Lease, may Declare all Indebtedness of Borrower to Bank immediately or at any time thereafter demand in writing that Tenant vacate the Premises due and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord payable. Bank shall have the right to re-enter enforce one or more remedies hereunder successively or concurrently, and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord action shall not of itself constitute an acceptance by Landlord of a surrender of this Lease estop or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at prevent Bank from pursuing any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises further remedy which it may deem necessary have hereunder or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved hereinlaw.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The 15.1 Tenant shall be in default under this Lease on the occurrence of any of the following shall constitute events:
(a) Tenant abandons or vacates the Premises for a default under and breach period of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) or more consecutive days following during which the building is otherwise open;
(b) Tenant fails to pay the rent or any other sums required to be paid hereunder where such failure continues for three (3) or more days after Tenant is given written notice of non-payment from Landlord to Tenantthe delinquency;
ii(c) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant 's failure to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this LeaseLease to be observed or performed by Tenant where, if such failure shall continue is susceptible of being cured, such failure continues for thirty fifteen (3015) or more days after written notice thereof from by Landlord to Tenant; provided provided, however, that if the nature of the failure is such thirty (30) day period shall be extended for that the time reasonably required to complete such cure, if such failure same cannot reasonably be cured within said thirty such fifteen (3015) day period and period, Tenant commences shall not be deemed to be in default unless Tenant fails to commence to cure within such failure within said thirty fifteen (3015) day period and thereafter diligently and continuously proceeds prosecute the same to cure such failurecompletion;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viiid) Tenant makes any general assignment or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment general arrangement for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, or applies for or consents to in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days after filing); the appointment of a trustee or receiver for to take possession of substantially all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under 's assets located at the Premises or of Tenant's interest in this Lease Lease, where possession is not restored to Tenant within sixty (60) days; or for a major part the attachment, execution or other judicial seizure of either party’s property and substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within sixty (60) days after days.
15.2 Any amount due from Tenant to Landlord hereunder which is not paid when due shall bear interest at the rate of 18% per annum or 1 1/2% per month (assessed on any fraction thereof) from the date due until the date paid, said interest to start on the 5th day following date due. Payment of such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency interest shall not excuse or liquidation proceeding, or other proceeding for relief under cure any bankruptcy law or similar law for the relief of debtors, is instituted (A) default by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. Section 13.1 The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
iDefault (herein so called) Failure by of Tenant under this Lease: (a) if Tenant fails to pay any monetary amounts Rent hereunder as and when such Rent becomes due and such failure shall continue for more than five (including Base Rental 5) days after Landlord gives Tenant notice of past due Rent; (b) if Tenant fails to pay Rent on time more than twice in any period of twelve (12) months, notwithstanding that such payments have been made within the applicable cure period; (c) if the Premises become vacant, deserted, or abandoned for more than ten (10) consecutive days or if Tenant fails to take possession of the Premises on the Commencement Date or promptly thereafter; (d) if Tenant permits to be done anything which creates a lien upon the Premises and Additional Rentalfails to discharge or bond such lien or post such security with Landlord as is required by Article 11; (e) due hereunder within if Tenant violates the provisions of Article 8 by attempting to make an unpermitted assignment or sublease; (f) if Tenant fails to maintain in force all policies of insurance required by this Lease and such failure shall continue for more than ten (10) days following written after Landlord gives Tenant notice of non-payment from Landlord to Tenant;
iisuch failure; (g) Abandonment if any petition is filed by or against Tenant or any guarantor of this Lease under any present or future section or chapter of the Premises Bankruptcy Code, or under any similar law or statute of the United States or any state thereof (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business which, in the Premisescase of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of commencement);
iii, or if any order for relief shall be entered against Tenant or any guarantor of this Lease in any such proceedings; (h) Failure by if Tenant to observe or perform any guarantor of this Lease becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors; (i) if a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the covenants in respect assets of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision guarantor of this Lease, which appointment is not vacated within sixty (60) days following the date of such appointment; (j) if Tenant fails to originally post or thereafter restore the Security Deposit as required pursuant to Article 20 hereof; or (k) if Tenant fails to perform or observe any other terms of this Lease and such failure shall continue for more than thirty (30) days after written Landlord gives Tenant notice thereof from Landlord to Tenant; provided that of such failure, or, if such failure cannot be corrected within such thirty (30) day period shall be extended for the time reasonably required to complete such cureperiod, if Tenant does not commence to correct such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure default within said thirty (30) day period and thereafter diligently prosecute the correction of same to completion within a reasonable time and continuously proceeds in any event prior to cure the time a failure to complete such failure;
vii) The levy upon execution correction could cause Landlord to be subject to prosecution for violation of any law, rule, ordinance or the attachment by legal process of the leasehold interest of Tenantregulation or causes, or the filing could cause, a default under any mortgage, underlying lease, tenant leases or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents other agreements applicable to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsProject.
b. Section 13.2 Upon the occurrence of an any Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option right, at Landlord's option, to elect to do and perform any one or more of the following in addition towithout further notice or demand to Tenant, and not in limitation of, Tenant hereby expressly waiving the requirement of service of any other remedy statutory notice or right permitted it by law or in equity or by this Lease:
idemand as a condition precedent to ▇▇▇▇▇▇▇▇'s exercising any of the following rights: (a) Landlord, with or without terminating terminate this Lease, may in which event Tenant shall immediately or at any time thereafter re-enter surrender the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurredand, on demand.
ii) Landlordif Tenant fails to so surrender, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right right, without notice or demand, to re-enter upon and take possession of the Premises.
iiiPremises and to expel or remove Tenant and its effects without being liable for prosecution or any claim for damages therefor; and ▇▇▇▇▇▇ shall, and hereby agrees to, indemnify Landlord for all loss and damage which Landlord suffers by reason of such termination, including damages in an amount equal to the total of (1) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the costs of recovering the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal other expenses incurred by Landlord shall not in connection with Tenant's default; (2) the unpaid Rent earned as of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of termination, plus interest at the Premises, and thereafter Tenant shall pay monthly during Interest Rate; (3) the total Rent which Landlord would have received under this Lease for the remainder of the term Term, but discounted to the then present value at a rate of eight percent (8%) per annum, minus the fair market rental value on a net basis of the balance of the Term as of the time of such default, discounted to the then present value at a rate of eight percent (8%) per annum (but in no event shall the result thereof be less than zero for the purposes of this Section); and (4) all other sums of money and damages owing by Tenant to Landlord; or (b) enter upon and take possession of the Premises without terminating this Lease the differenceand without being liable to prosecution or any claim for damages therefor, and, if anyLandlord elects, between relet the rent Premises on such terms as Landlord deems advisable, in which event Tenant shall pay to Landlord on demand the cost of repossession, renovating, repairing and other charges collected from any such subsequent altering the Premises for a new tenant or tenants and any deficiency between the Rent payable hereunder and the rent and other charges reserved in this Leasepaid under such reletting; provided, but however, that Tenant shall not be entitled to receive any excess of payments received by Landlord from such reletting. Landlord's failure to relet the Premises shall not release or affect ▇▇▇▇▇▇'s liability for Rent or for damages; or (c) enter the Premises without terminating this Lease and without being liable for prosecution or any such rents collected over claim for damages therefor and maintain the rents reserved herein.
v) Premises and repair or replace any damage thereto or do anything for which ▇▇▇▇▇▇ is responsible hereunder. Tenant shall reimburse Landlord may immediately or at upon demand for any time thereafter terminate reasonable expenses which Landlord incurs in thus effecting Tenant's compliance under this Lease, and Landlord shall not be liable to Tenant for any damages with respect thereto.
Section 13.3 No agreement to accept a surrender of the Premises and no act or omission by Landlord or Landlord's agents during the Term shall constitute an acceptance or surrender of the Premises unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant. No provision of this Lease shall be construed as an obligation upon Landlord to mitigate Landlord's damages under the Lease, except to the extent required by law.
Section 13.4 No provision of this Lease shall be deemed to have been terminated upon receipt waived by Tenant Landlord unless such waiver is in writing and signed by Landlord. ▇▇▇▇▇▇▇▇'s acceptance of written notice Rent following an Event of Default hereunder shall not be construed as a waiver of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord Event of Default. No custom or practice which may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages grow up between the parties in rentals, costs, charges, additional rentals, and reimbursements, connection with the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term terms of this Lease over the then reasonable rental value shall be construed to waive or lessen Landlord's right to insist upon strict performance of the Premises for the remainder of the term terms of this Lease, or (B) the rents and other charges which without a written notice thereof to Tenant from Landlord.
Section 13.5 The rights granted to Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election in this Article 13 shall be made by Landlord by serving written notice upon Tenant cumulative of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one every other right or more of the rights and remedies remedy provided in this Lease shall not prevent or which Landlord may otherwise have at law or in equity or by statute, and the subsequent exercise by Landlord of any one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of the other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to Landlord by reason of any Event of Default under this Lease. ▇▇▇▇▇▇ agrees to pay to Landlord all costs and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act expenses incurred by Landlord in connection with respect to an Event of Default and the Premises shall terminate enforcement of this Lease, including, but not limited to, acceptance including all attorneys' fees incurred in connection with the collection of any sums due hereunder or the keys, institution enforcement of an action for detainer any right or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting remedy of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Assignment of Lease (Advanced Life Sciences Holdings, Inc.)
Default and Remedies. a. The occurrence 13.1 Events of Tenant's Default: Tenant shall be in default of its -------------------------- obligations under this Lease if any of the following shall constitute a default under events occurs:
13.1.1 Tenant fails to pay any Monthly Rent when due and breach such failure is not cured within five (5) days after Landlord notifies Tenant in writing that such nonpayment was not made when due; or
13.1.2 Tenant fails to perform any term, covenant, or condition of this Lease by (except those requiring the payment of money to Landlord) and Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant such default within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after delivery of written notice thereof from Landlord specifying the nature of such default where such default could reasonably be cured within said thirty (30) day period, or fails to Tenant; provided that commence such cure within said thirty (30) day period shall be extended for the time reasonably required and thereafter continuously with due diligence prosecute such cure to complete completion where such cure, if such failure candefault could not reasonably be cured within said thirty (30) day period; or
13.1.3 Tenant shall have made a general assignment of its assets for the benefit of its creditors; or
13.1.4 A court shall have made or entered any decree or order with respect to Tenant, or Tenant shall have submitted to or sought a decree or order (or a petition or pleading shall have been filed in connection therewith) which: (i) grants or constitutes (or seeks) an order for relief, appointment of a trustee, or confirmation of a reorganization plan under the bankruptcy laws of the United States; (ii) approves as properly filed (or seeks such approval of) a petition seeking liquidation or reorganization under said bankruptcy laws or any other debtor's relief law or statute of the United States or any state thereof; or (iii) otherwise directs (or seeks) the winding up or liquidation of Tenant; and such petition, decree or order shall have continued in effect for a period and Tenant commences to cure such failure within said of thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demanddays.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence of If and whenever:
(a) any of Net Rent is in arrears whether or not any demand for payment has been made by the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to TenantLandlord;
ii(b) Abandonment of the Premises (defined as any period of one hundred Additional Rent is in arrears and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant is not paid within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) 5 days after written notice thereof from Landlord demand by the Landlord;
(c) the Tenant has breached any of its obligations in this lease (other than the payment of Rent) and the Tenant fails to Tenant; remedy such breach within 15 days (or such shorter period as may be provided that such thirty (30in this lease) day period shall be extended for the time reasonably required to complete such cure, or if such failure breach cannot reasonably be cured remedied within said thirty (30) day period and 15 days or such shorter period, the Tenant commences fails to cure such failure within said thirty (30) day period commence to remedy and thereafter proceed diligently and continuously proceeds to cure remedy such failurebreach, in each case after notice in writing from the Landlord;
vii(d) The levy upon execution the Tenant or any Indemnifier becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors or makes any proposal, assignment or arrangement with its creditors, or any steps are taken or proceedings commenced by any Person for the dissolution, winding-up or other termination of the Tenant's existence or the attachment by legal process liquidation of its assets;
(e) a trustee, receiver, receiver/manager or like Person is appointed with respect to the business or assets of the leasehold interest Tenant or any Indemnifier;
(f) the Tenant makes a sale in bulk of all or a substantial portion of its assets other than in conjunction with a Transfer approved by the Landlord;
(g) this lease or any of the Tenant's assets are taken under a writ of execution;
(h) the Tenant purports to make a Transfer not in compliance with this lease;
(i) the Tenant abandons or attempts to abandon the Premises or disposes of its goods so that there would not after such disposal be sufficient goods of the Tenant on the Premises subject to distress to satisfy Rent for at least 3 months, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or Premises become vacant and unoccupied for a major part period of either party’s property and is not discharged within sixty (60) 5 consecutive days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for more without the relief consent of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institutionthe Landlord; or
xi(j) Tenant’s repeated failure to observe or perform any of the other covenants, terms Landlord's policies of insurance with respect to the Building or conditions hereof more than three (3) times, in the aggregate, in any period part thereof are actually or threatened to be cancelled or adversely changed as a result of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to any use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more occupancy of the following in addition to, and not in limitation of, Premises; then without prejudice to any other remedy or right permitted rights which it by law or in equity or by has pursuant to this Lease:
i) Landlord, with or without terminating this Lease, may immediately lease or at any time thereafter re-enter law, the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right following rights and remedies, which are cumulative and not alternative:
(i) to re-terminate this lease;
(ii) to enter the Premises as agent of the Tenant and to relet the Premises for whatever term, and on such terms as the Landlord in its discretion may determine and to receive the Rent therefor and as agent of the Tenant to take possession of any property of the Tenant on the Premises., to store such property at the expense and risk of the Tenant or to sell or otherwise dispose of such property in such manner as the Landlord may see fit without notice to the Tenant;
(iii) Landlord, with to remedy or without terminating this Lease, may immediately or at attempt to remedy any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or default of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including for the date of beginning of payment of rent by any subsequent tenant of part or all account of the Premises, Tenant and thereafter Tenant shall pay monthly during to enter upon the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any Premises for such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled purposes;
(iv) to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from the Tenant all damages and expenses incurred by the Landlord may suffer as a result of any breach by reason of such termination the Tenant including, without limitationif the Landlord terminates this lease, unamortized sums expended any deficiency between those amounts which would have been payable by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder portion of the term Term following such termination and the net amounts actually received by the Landlord during such period of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord time with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance Premises; and
(v) to recover from the Tenant the full amount of the keys, institution current month's Rent together with the next 3 months' instalments of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, Rent; all of which shall accrue on a day-to-day basis and any reletting of the Premises shall be presumed to be for immediately become due and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantpayable as accelerated Rent.
Appears in 1 contract
Default and Remedies. a. 32. The Mortgagor shall be deemed to be in default hereunder upon the occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant events (each, an “"Event of Default”"):
i(a) Failure by Tenant the Mortgagor fails to pay any monetary amounts amount when due under the Note; or
(including Base Rental b) the Mortgagor fails to perform, observe or comply with any agreement, covenant, term or condition contained in Article I, Sections 1 through 12 inclusive, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25, 27, 28 and Additional Rental29; or
(c) due hereunder within ten (10) days following written notice of non-payment from Landlord the Mortgagor fails to Tenant;
ii) Abandonment of the Premises (defined as perform, observe or comply with any agreement, covenant, term or condition contained in Article I, Sections 13, 17, 21, 26, 30 and 31 and such failure continues unremedied for a period of one hundred and eighty five (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (205) days after written notice thereof shall have been given by the initial written demand for same Mortgagee to Tenant;the Mortgagor; or
vi(d) Failure by Tenant the Mortgagor fails to perform, observe or perform comply with any other non-monetary agreement, covenant, agreement, term or condition or provision contained herein and such default continues unremedied for a period of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord shall have been given by the Mortgagee to Tenantthe Mortgagor; provided provided, however, that if such default can be remedied but such remedy can not be effectuated within such thirty (30) day period period, no Event of Default shall be extended for deemed to have occurred so long as, in the time reasonably required to complete such cureMortgagee's good faith judgment, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences the Mortgagor is taking appropriate remedial action to cure such failure within said thirty default; or
(30e) day period and thereafter diligently and continuously proceeds any warranty, representation or written statement made or furnished to cure such failure;the Mortgagee by or on behalf of Mortgagor proves not to hav▇ ▇▇▇▇ ▇▇ue in any material respect when made; or
vii(f) The levy upon execution there occurs any unauthorized sale, transfer, charter or the attachment by legal process other disposition of the leasehold interest of Tenant, Vessel; or
(g) the Mortgagor or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease Guarantor becomes insolvent or bankrupt or files a voluntary petition in bankruptcy or is unable, or admits in writing its inability to pay its debts as they mature, mature or makes an assignment for the benefit of creditors, its or applies for his creditors or consents to the appointment of a trustee or receiver for all receiver, or a major trustee or a receiver shall be appointed for the Mortgagor or for a substantial part of its property;
ixor his property without its or his consent and shall not be dismissed for thirty (30) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institutiondays; or
xi(h) Tenant’s repeated failure to observe one or perform more final judgment for the payment of money in excess of $100,000 (which is not covered by insurance and for which no reservation of rights letter has been issued by the insurer defending such action) in the aggregate is entered by a court or courts of competent jurisdiction against the Mortgagor and such judgment is not effectively stayed and remains undischarged and unbonded for thirty (30) days; or
(i) there occurs a default or an event of default under the Note or the other Debt Documents.
(j) Mortgagor or Guarantor is in default under any agreement between by, between or among any of the such parties and Mortgagee including, any promissory note, guaranty or other covenants, terms or conditions hereof more than three (3) times, instrument executed by any of such parties in the aggregate, in any period favor of twelve (12) consecutive monthsMortgagee.
b. 33. Upon the occurrence and during the continuance of an Event of Default, Landlord the Mortgagee may, at any time thereafter, do any of the following:
(a) declare any and all amounts due or owing by the Mortgagor to the Mortgagee under the Note and this Mortgage and the other Debt Documents to be immediately due and payable, whereupon the same, together with interest thereon to the date of declaration, shall become and be immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby waived by the Mortgagor. The Mortgagor agrees that upon such declaration it will immediately pay all such amounts to the Mortgagee and thereafter any such amounts not so paid (including such accrued interest and additional amounts) and such further amounts as may be necessary to compensate the Mortgagee for any such loss or expense incurred after the date of such declaration or by reason of any Event of Default occurring after the date of such declaration shall bear interest, from the date thereof until paid in full at the Default Rate (in no event to exceed the maximum rate allowed by law);
(b) exercise any and all of the rights and remedies in foreclosure and otherwise given to mortgagees by the provisions of the Ship Mortgage Act, or of the laws of any applicable jurisdiction;
(c) bring suit at law, in equity or in admiralty, as it may be advised, to recover judgment for any and all amounts due under any continuing guaranty agreement or otherwise hereunder, and collect the same out of any and all property of the Mortgagor whether covered by this Mortgage or otherwise;
(d) take possession of the Vessel, at any time, wherever the same may be, without legal process and without being responsible for loss or damage, and the Mortgagor or other person in possession forthwith upon demand of the Mortgagee shall surrender to the Mortgagee possession of the Vessel, and the Mortgagee, without being responsible for loss or damage, may hold, lay up, lease, charter, operate or otherwise use reasonable efforts the Vessel for such time and upon such terms as are in accordance with applicable law and as it may deem to mitigate be for its damagesbest advantage, but and, upon taking possession thereof, may demand, collect and retain all hire, freights, earnings, issues, revenues, income, profits, return premiums, salvage awards or recoveries, recoveries in general average, and all other sums due or to become due in respect of the Vessel or in respect of any insurance thereon from any person whomsoever, accounting only for the net profits, if any, arising from such use of the Vessel and charging upon all receipts from the use of the Vessel or from the sale thereof by court proceedings or as set forth below, all costs, expenses, charges, damages or losses by reason of such use; and if at any time the Mortgagee shall avail itself of the right herein given it to take the Vessel, the Mortgagee shall have the option right to do and perform dock the Vessel for a reasonable time at any one dock, pier or more other premises of the following in addition toMortgagor without charge, or to dock the Vessel at any other place at the cost and expense of the Mortgagor;
(e) take and enter into possession of the Vessel at any time, wherever the same may be, without legal process, and not in limitation ofif it seems desirable to the Mortgagee and without being responsible for loss or damage (other then caused by the Mortgagee's own gross negligence or willful misconduct), sell the Vessel upon such terms and conditions as the Mortgagee shall deem best, free from any other remedy or right permitted it by law or in equity claim of or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises byMortgagor, at public or private sale, by sealed bids or otherwise, by furnishing notice of such sale, whether public or private, addressed to the direction ofMortgagor at its last known address, or with consent of Tenant within ten (10) days prior to the date fixed for entering into the contract of receipt sale, and, by Tenant first publishing notice of any such public sale for ten (10) consecutive days, in some newspaper published in the City of New Orleans, State of Louisiana. In the event that the Vessel shall be offered for sale by private sale, no newspaper publication of notice shall be required, nor notice of adjournment of sale; sale may be held at such place and at such time as the Mortgagee by notice may have specified, or may be adjourned by the Mortgagee from time to time by announcement at the time and place appointed for such sale or for such adjourned sale, and without further notice or publication the Mortgagee may make any such sale at the time and place to which the same shall be so adjourned; and any sale may be conducted without bringing the Vessel to the place designated for such sale and in such manner as the Mortgagee may deem to be for its best advantage, and the Mortgagee may become the purchaser at any sale. If the Vessel is to be sold by private sale and the Mortgagor and Mortgagee have not reached agreement that the price to be paid is fair and reasonable, the parties shall each appoint a marine broker who in turn shall appoint a third marine broker. The average value arrived at by the three marine brokers shall be deemed to be the then fair market value of the Vessel and the Mortgagee shall be deemed to have sold the Vessel in a commercial reasonable manner so long as the price received therefor equals or exceeds such value. Any sale of the Vessel made pursuant to this Mortgage, whether under the power of sale hereby granted or any judicial proceedings, shall operate to divest all right, title and interest of any nature whatsoever of the Mortgagor therein and thereto, and shall bar the Mortgagor, its successors and assigns, and all persons claiming by, through or under them. No purchaser shall be bound to inquire whether notice has been given, or whether any default has occurred, or as to the propriety of the sale, or as to the application of the proceeds thereof. In case of any such sale, any purchaser who is the holder of the Note shall be entitled, for the purpose of making settlement or payment for the property purchased, to use and apply all amounts due it under the Note as a credit against the purchase price after payment of all costs and expenses of sale; and thereupon such purchaser shall be credited, on account of such notice from Landlordpurchase price, whereupon Landlord with the net proceeds that shall have been so credited upon the right Note. At any such sale, the holder of the Note may bid for and purchase such property and upon compliance with the terms of sale and, to rethe extent permitted by law, may hold, retain and dispose of such property without further accountability therefor.
34. Following the occurrence and during the continuance of an Event of Default, the Mortgagee is hereby appointed attorney-in-fact of the Mortgagor and may, in the name of the Mortgagor or in its own name, demand, collect, receive, compromise and sue for, so far as may be permitted by law, all freights, subfreights, hire, earnings, issues, revenues, income and profits of the Vessel and all amounts due from underwriters under any insurance thereon as payment of losses or as return premiums or otherwise, salvage awards and recoveries, recoveries in general average or otherwise, and all other sums due or to become due at the time of the happening of any Event of Default in respect of the Vessel, or in respect of any insurance thereon, from any person whomever, and to make, give and execute in the name of the Mortgagor acquittances, receipts, releases or other discharges for the same, whether under seal or otherwise, and to endorse and accept in the name of the Mortgagor all checks, notes, drafts, warrants, agreements and other instruments in writing with respect to the foregoing.
35. Following the occurrence and during the continuance of an Event of Default, the Mortgagee is hereby appointed attorney-in-fact of the Mortgagor and shall be permitted to execute and deliver to any purchaser, in the name and on behalf of the Mortgagor, a bill of sale conveying to said purchaser good and marketable title to the Vessel. Alternatively, in the event the Vessel is sold pursuant to any power granted herein, the Mortgagor will, if and when required by the Mortgagee, execute such form of conveyance of the Vessel as the Mortgagee may direct or approve.
36. Whenever the Mortgagee becomes entitled to enter and take possession of the PremisesVessel, it may require the Mortgagor to deliver, and the Mortgagor shall deliver, at its own cost and expense, the Vessel to the Mortgagee upon demand. If any legal proceedings shall be taken to enforce any right under this Mortgage, the Mortgagee shall be entitled as a matter of right to the appointment of a receiver of the Vessel pursuant to 46 U.S.C. Section 31325(e) and of the freights, hire, earnings, issues, revenues, income and profits due or to become due and arising from the operation, use, or employment thereof.
iii37. The Mortgagor hereby authorizes and empowers the Mortgagee or its appointees or any of them to appear in the name of the Mortgagor, its successors and assigns, in any court of any country or nation of the world where a suit is pending against the Vessel because of or on account of any alleged lien against the Vessel, and, if they so desire (but without any obligation to do so) Landlordto take such actions as the Mortgagee or its appointees may deem proper to defend such suit and to discharge such lien, with and all expenditures made or without terminating incurred by it or them for the purpose of such defense or discharge shall be a debt due from the Mortgagor, its successors and assigns, to the Mortgagee, and shall bear interest at the Default Rate, until paid in full, and shall be secured by the lien of this LeaseMortgage in like manner and extent as if the amount and description thereof were written herein. Mortgagee agrees that it shall not exercise the foregoing powers except upon the occurrence and during the continuance of an Event of Default.
38. Each and every power and remedy herein given to the Mortgagee shall be cumulative and shall be in addition to every other power and remedy herein given or now or hereafter existing in law, in equity, in admiralty or by statute, and each and every power and remedy whether herein given or otherwise existing may immediately be exercised from time to time and as often and in such order as may be deemed expedient by the Mortgagee, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other power or remedy. No delay or omission by the Mortgagee in the exercise of any right or power or in the pursuance of any remedy accruing upon any Event of Default shall impair any such right, power or remedy or be construed to be a waiver of any such Event of Default or to be an acquiescence therein; nor shall the acceptance by the Mortgagee of any security or of any payment of or on account of the Note maturing after any Event of Default or of any payment on account of any past default be construed to be a waiver of any right to take advantage of any future Event of Default or of any past Event of Default not completely cured thereby.
39. If at any time thereafter, re-enter after an Event of Default and prior to the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or actual sale of the Premises Vessel by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with the Mortgagee or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs prior to the Premises which it may deem necessary or proper completion of any foreclosure proceedings the Mortgagor offers completely to facilitate such reletting; cure all Events of Default and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent expenses, advances and all other charges due damages to the Mortgagee arising from such Event of Default, with interest at the Default Rate, then the Mortgagee may, if it so elects, accept such offer and payment and restore the Mortgagor to its former position, but such action shall not affect any subsequent Event of Default or impair any rights consequent thereon.
40. In case the Mortgagee shall have proceeded to enforce any right, power or remedy under this lease up to and including the date of beginning of payment of rent Mortgage by any subsequent tenant of part foreclosure, entry or all of the Premisesotherwise, and thereafter Tenant such proceedings shall pay monthly during have been discontinued or abandoned for any reason or shall have been determined adversely to the remainder of Mortgagee, then and in every such case the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants Mortgagor and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease Mortgagee shall be deemed restored to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions their former positions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord hereunder with respect to the Premises shall terminate property subject or intended to be subject to this LeaseMortgage, includingand all rights, but not limited to, acceptance remedies and powers of the keysMortgagee shall continue as if no such proceedings had been taken.
41. The proceeds of any sale of the Vessel either under a power of sale hereby granted to the Mortgagee or under a judgment or decree in any judicial proceeding for foreclosure of this Mortgage, institution or proceeds arising from the enforcement of an action for detainer any remedy granted to the Mortgagee hereunder or any net earnings from any charter or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting use of the Premises Vessel by the Mortgagee or any requisition compensation or other moneys received by the Mortgagee pursuant to or under the terms of this Mortgage shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.applied as follows:
Appears in 1 contract
Default and Remedies. a. (A) The occurrence of any one or more of the following events (each, an "Event of Default") shall constitute a default under and breach of this Lease by Tenant:
(I) Tenant (an “Event of Default”):
i) Failure by Tenant fails to pay any monetary amounts Basic Monthly Rental or any additional monthly rent payable under Paragraph 4 hereof as and when such rent becomes due and payable and such failure continues for more than three (including Base Rental 3) days after Landlord gives written notice thereof to Tenant; provided, however, that after the second such failure in a calendar year, only the passage of time, but no further notice, shall be required to establish an Event of Default in the same calendar year; or
(II) Tenant fails to pay any additional rent or other amount of money or charge payable by Tenant hereunder as and Additional Rental) when such additional rent or amount or charge becomes due hereunder within and payable and such failure continues for more than ten (10) days following after Landlord gives written notice of non-payment from Landlord thereof to Tenant;; provided, however, that after the second such failure in a calendar year, only the passage of time, but no further notice, shall be required to establish an Event of Default in the same calendar year; or
ii(III) Abandonment Tenant fails to immediately remove, ▇▇▇▇▇ or remedy any Hazardous Material located in, on or about the Premises or the Building in connection with any failure by Tenant to comply with Tenant's obligations under Paragraph 7(c); or
(IV) Tenant fails to deliver the estoppel certificate or the financial statements to Landlord or a Lender, as the case may be, within the time periods required by Paragraph 26(c) and Paragraph 26(d), respectively; or Tenant fails to maintain the policies of insurance required to be provided in Paragraph 14 or Tenant fails to deliver to Landlord the policies of insurance required to be provided in Paragraph 14 within five (5) days after Landlord gives written notice to Tenant requesting same; or
(V) Tenant fails to perform or breaches any agreement or covenant of this Lease to be performed or observed by Tenant (except for those described in clauses (i) through (iv) above) as and when performance or observance is due and such failure or breach continues for more than fifteen (15) days after Landlord gives written notice thereof to Tenant; provided, however, that if, by the nature of such agreement or covenant, such failure or breach cannot reasonably be cured within such period of fifteen (15) days, an Event of Default shall not exist as long as Tenant commences with due diligence and dispatch the curing of such failure or breach within such period of fifteen (15) days and, having so commenced, thereafter prosecutes with diligence and dispatch and completes the curing of such failure or breach within sixty (60) days; or
(VI) Tenant (A) is generally not paying its debts as they become due, (B) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors' relief law of any jurisdiction, (C) makes an assignment for the benefit of its creditors, (D) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers of Tenant or of any substantial part of Tenant's property, or (E) takes action for the purpose of any of the foregoing; or
(VII) Without consent by Tenant, a court or government authority enters an order, and such order is not vacated within thirty (30) days, (A) appointing a custodian, receiver, trustee or other officer with similar powers with respect to Tenant or with respect to any substantial part of Tenant's property, or (B) constituting an order for relief or approving a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors' relief law of any jurisdiction, or (C) ordering the dissolution, winding-up or liquidation of Tenant; or
(VIII) This Lease or any estate of Tenant hereunder is levied upon under any attachment or execution and such attachment or execution is not vacated within thirty (30) days; or
(IX) Tenant vacates (except as expressly permitted in Section 17) or abandons the Premises (as defined as in Section 1951.3 of the California Civil Code).
(B) If an Event of Default occurs, Landlord shall have the right at any period time to give a written termination notice to Tenant and, on the date specified in such notice, Tenant's right to possession shall terminate and this Lease shall terminate. Upon such termination, Landlord shall have the right to recover from Tenant:
(I) The worth at the time of one hundred and eighty award of all unpaid rent which had been earned at the time of termination;
(180II) consecutive days without operation The worth at the time of award of the amount by which all unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided;
(III) The worth at the time of award of the amount by which all unpaid rent for the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and
(IV) All other amounts necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform all of Tenant’s business 's obligations under this Lease or which in the Premisesordinary course of things would be likely to result therefrom. The "worth at the time of award" of the amounts referred to in clauses (i) and (ii) above shall be computed by allowing interest at the Interest Rate set forth in Paragraph 3(c);
. The "worth at the time of award" of the amount referred to in clause (iii) Failure above shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). For the purpose of determining unpaid rent under clauses (i), (ii) and (iii) above, the rent reserved in this Lease shall be deemed to be the total Rental payable by Tenant under Paragraphs 3 and 4 hereof; and for purposes of computing Tenant's Percentage Share of Operating Expenses and Real Property Taxes for the calendar year in which the default occurs and each future calendar year or portion thereof in the Lease Term, Tenant's Percentage Share of Operating Expenses and Real Property Taxes shall be assumed to observe or perform any be equal to the amount thereof for the calendar year prior to the year in which the default shall occur, increased annually at a rate equal to the average rate of increase, if any, in such items from the covenants in respect Commencement Date through the time of assignment and subletting of award.
(C) Even though Tenant has breached this Lease;
iv) Failure by Tenant , this Lease shall continue in effect for so long as Landlord does not terminate Tenant's right to cure forthwithpossession, immediately after receipt and Landlord shall have all of notice from Landlordits rights and remedies, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant including the right, pursuant to completeCalifornia Civil Code Section 1951.4, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of recover all rent as it becomes due under this Lease, if such failure Tenant has the right to sublet or assign, subject only to reasonable limitations. Acts of maintenance or preservation or efforts to relet the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord's interest under this Lease shall continue not constitute a termination of Tenant's right to possession unless written notice of termination is given by Landlord to Tenant.
(D) The remedies provided for in this Lease are in addition to all other remedies available to Landlord at law or in equity by statute or otherwise.
(E) Landlord shall not be in default under this Lease unless Landlord fails to perform any obligation required to be performed by Landlord hereunder within thirty (30) days after written notice thereof from Landlord of such failure by Tenant to Tenant; provided Landlord, specifying in reasonable detail the nature of Landlord's alleged default, or, if the nature of Landlord's obligation is such that such more than thirty (30) day period days are required for performance, then Landlord shall not be extended for the time reasonably required to complete in default if Landlord commences performance within such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds prosecutes such cure to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien completion. In no event shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with terminate or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of rescind this Lease or as a result of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable's default, and Landlord may make Tenant hereby waives such remedies of termination and rescission and hereby agrees that Tenant's remedies for Landlord's default hereunder and for breach of any alterations promise or repairs inducement shall be limited to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminateda suit for damages and/or injunction. In addition, Tenant shall continue hereby covenants that, prior to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess exercise of any such rents collected over the rents reserved herein.
v) remedies, it will give all Holders notice and an opportunity to cure any default by Landlord may immediately or at any time thereafter terminate this Leasein accordance with Paragraph 15(d). If and when a Holder has performed on behalf of Landlord, and this Lease such default shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationcured.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Office Lease (Cnet Networks Inc)
Default and Remedies. a. The (a) In addition to the circumstances hereinbefore set forth, the occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant Tenant: (an “Event of Default”):
i) Failure the filing of any voluntary petition or similar pleading under any section or sections of any bankruptcy or insolvency act by or against Tenant or the institution of any voluntary or involuntary proceeding in any court or tribunal to declare Tenant insolvent or unable to pay any monetary amounts Tenant’s debts as they mature and, in the case of an involuntary petition or proceeding, the petition or proceeding is not dismissed within forty-five (including Base Rental and Additional Rental) due hereunder within ten (1045) days following written notice from the date it is filed, or the making of non-payment from Landlord to an assignment for the benefit of its creditors by Tenant;
ii) Abandonment , or the appointment of a trustee or receiver for Tenant or for the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation major part of Tenant’s business property; (ii) Tenant’s failure to pay the monthly Base Rental, Additional Rent or any other sum due hereunder, if such nonpayment continues for five (5) or more days after the date notice of such late payment is provided to Tenant; (iii) Tenant’s default in the Premises);
iii) Failure by Tenant to observe or perform prompt and full performance of any of the covenants in respect of assignment and subletting other provision of this Lease;
iv) Failure by Lease and Tenant to does not cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant the default within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe (or perform any other non-monetary covenant, agreement, condition or provision of this Lease, such longer period if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cure cannot reasonably be cured completed within said thirty (30) such 20-day period and Tenant commences to cure such failure default within said thirty (30) such 20-day period and thereafter diligently and continuously proceeds pursues such cure to completion) after written demand by Landlord that the default be cured (unless the default involves a condition dangerous to person or property, or which will become worse if no immediate action is taken to cure such failure;
viidefault, in which event such default shall be cured forthwith upon Landlord’s demand); (iv) The levy Tenant shall do or permit to be done anything that creates a lien upon execution the Premises or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, Building which lien must be removed by Tenant within twenty (20) days. Landlord shall not be released or discharged within thirty (30) days from the date have no obligation to notify Tenant of such filing;
viii) Tenant or any guarantor material defaults of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof on more than three two (32) timesoccasions during any Lease Year, and an event of default shall be deemed to have occurred hereunder in such circumstances without the aggregate, in necessity of any period of twelve (12) consecutive monthsprior notice by Landlord or opportunity to cure by Tenant.
b. (b) Upon the occurrence of an Event of Defaultany default by Tenant as aforesaid, Landlord agrees Landlord, in addition to use reasonable efforts to mitigate its damagesany and all other rights or remedies it may have at law or in equity, but shall have the option to do and perform of pursuing any one or more of the following in addition toremedies:
(i) Landlord shall have the immediate right of reentry and may remove all property from the Premises to a warehouse or elsewhere at the cost of, and not for the account of Tenant, all without being deemed guilty of trespass or becoming liable for any loss, damage or damages which may be occasioned thereby;
(ii) Landlord may terminate this Lease by giving notice of termination, in limitation ofwhich event this Lease shall expire and terminate on the date specified in such notice of termination, any other remedy or right permitted it by law or in equity or by with the same force and effect as though the date so specified were the date herein originally fixed as the expiration date of the Term of this Lease:, and all rights of Tenant under this Lease and in and to the Premises shall expire and terminate, and Tenant shall remain liable for all obligations under this Lease arising up to the date of such termination, and Tenant shall surrender the Premises to Landlord on the date specified in such notice;
i(iii) LandlordLandlord may terminate this Lease as provided in subparagraph 28(b)(ii) hereof and recover from Tenant all damages Landlord may incur by reason of Tenant’s default, including, without limitation, a sum which, at the date of such termination, represents the then present value (calculated at the rate of twelve percent (12%) interest per annum) of the excess, if any, of (A) the Base Rental (including without limitation, increases in Base Rental pursuant to Paragraph 11 hereof), Additional Rent, and all other sums which would have been payable hereunder by Tenant for the period commencing with or the day following the date of such termination and ending with the date hereinbefore set for the expiration of the full term hereby granted, over (B) the aggregate reasonable rental value of the Premises (less reasonable brokerage commissions, attorneys’ fees and other costs relating to the reletting of the Premises) for the same period, all of which excess sum shall be deemed immediately due and payable;
(iv) Landlord may, from time to time without terminating this Lease, may immediately and without releasing Tenant in whole or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on in part from Tenant’s part obligation to keeppay Base Rental, observeAdditional Rent and all other amounts due under this Lease and perform all of the covenants, perform, satisfy, or abide conditions and agreements to be performed by any term, condition, covenant, agreement, or obligation of Tenant provided in this Lease, make such alterations and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging repairs as necessary to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of relet the Premises.
iii) Landlord, with or without terminating this Leaseand, may immediately or at any time thereafterafter making such alterations and repairs, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises byLandlord may, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord but shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlordbe obligated to, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, term (which may be for a term extending beyond the Term of this Lease) at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisableadvisable or acceptable; upon each reletting, all rentals received by Landlord from such reletting shall be applied first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any reasonable, out-of-pocket costs and expenses of such reletting, including brokerage fees and attorneys’ fees, and of costs of such alterations and repairs; third, to the payment of the Base Rental, Additional Rent and other charges due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied against payments of future Base Rental, Additional Rent or other charges as the same may make become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above charges that Tenant is obligated to pay hereunder, including Base Rental, Additional Rent and all other charges; if such rentals received from such reletting during any month are less than those to be paid during the month by Tenant hereunder, including Base Rental, Additional Rent and all other charges, Tenant shall pay any such deficiency to Landlord, which deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand all costs and expenses incurred by Landlord in connection with such reletting and in making any alterations or and repairs to which are not covered by the Premises which it may deem necessary or proper to facilitate rentals received from such reletting; and notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.
(c) All sums past due from Tenant shall pay all reasonable costs of such reletting; and if under this Lease shall not have been terminatedbear interest at eighteen percent (18%) per annum, but in no event in excess of the maximum lawful rate, from due date until paid in full.
(d) Tenant shall continue and hereby agrees to pay all rent reasonable, out-of-pocket costs and all other charges due under expenses incurred by Landlord in enforcing any of the covenants and agreements of this lease up to and including the date Lease, or as a result of beginning of payment of rent an action brought by any subsequent tenant of part or all Landlord against Tenant for an unlawful detainer of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any all such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs expenses and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excessfees shall, if anypaid by Landlord, of the total amount of all rents and other charges to be paid by Tenant for the remainder to Landlord within fifteen (15) days of Landlord’s written demand therefor, together with interest at eighteen percent (18%) per annum, but in no event in excess of the term maximum lawful rate, from the date of this Lease over Landlord’s payment thereof.
(e) In the then reasonable rental value event of a default hereunder beyond applicable periods of notice and cure, Landlord may declare Tenant in default under any or all other agreements between Landlord and Tenant or any affiliate of Tenant, whether in effect now or following the Premises for the remainder of the term date of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement (BioHorizons, Inc.)
Default and Remedies. a. The occurrence of any A. Each of the following shall constitute a be deemed an event of default under and breach of this Lease by Tenant Debtor (each, an “"Event of Default”"):
i(1) Failure by Tenant to pay If any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice representation or warranty of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business Debtor set forth in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants Loan Documents is false in respect of assignment and subletting of this Lease;any material respect, or if Debtor renders any statement or account which is false in any material respect.
iv(2) Failure by Tenant to cure forthwithIf any principal, immediately after receipt of notice from Landlordinterest or other monetary sum due under the Notes, the Mortgages or any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant other Loan Document is not paid within twenty (20) five days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenantdate when due; provided, agreementhowever, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for notwithstanding the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect occurrence of such leasehold interestan Event of Default, which lien FFCA shall not be released or discharged within thirty (30) entitled to exercise its rights and remedies set forth below unless and until FFCA shall have given Debtor notice thereof and a period of five days from the date delivery of such filing;notice shall have elapsed without such Event of Default being cured.
viii(3) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure If Debtor fails to observe or perform any of the other covenantscovenants (except with respect to a breach of the Fixed Charge Coverage Ratio, terms which breach is addressed in Section 10.A (6)), conditions, or conditions hereof more than three (3) timesobligations of this Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of FFCA in immediate jeopardy, and is within the aggregatereasonable power of Debtor to promptly cure after receipt of notice thereof, all as determined by FFCA in any period of twelve (12) consecutive months.
b. Upon the occurrence of its reasonable discretion, then such failure shall not constitute an Event of DefaultDefault hereunder, Landlord agrees to use reasonable efforts to mitigate its damagesunless otherwise expressly provided herein, but unless and until FFCA shall have the option to do given Debtor notice thereof and perform any one or more a period of the following in addition to30 days shall have elapsed, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, during which period Debtor may immediately or at any time thereafter re-enter the Premises and correct or repair any condition cure such failure, upon failure of which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation an Event of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease Default shall be deemed to have been terminated upon receipt occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be corrected or cured within such 30-day period, as determined by Tenant FFCA in its reasonable discretion, and Debtor is diligently pursuing a correction or cure of written such failure, then Debtor shall have a reasonable period to correct or cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the failure from FFCA (except if Debtor is diligently pursuing such termination; upon cure and such termination Landlord cure relates to an Environmental Condition which could not reasonably be expected to result in any Material Adverse Effect, Debtor may have up to an additional 180 days within which to complete such cure). If Debtor shall recover from Tenant all damages Landlord may suffer by reason fail to correct or cure such failure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required.
(4) If Debtor or Lessee becomes insolvent within the meaning of the Code, files or notifies FFCA that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either an involuntary petition under the Code or an involuntary Action that is not dismissed within 90 days after the initiation of such termination includinginvoluntary petition or Action, without limitationor is not generally paying its debts as the same become due.
(5) If there is an "Event of Default" or a breach or default, unamortized sums expended by Landlord for leasing commissions after the passage of all applicable notice and construction of tenant improvementscure or grace periods, all arrearages in rentals, costs, charges, additional rentals, and reimbursementsunder any other Loan Document, the cost Lease, any Related Loan Document, any Shoney's Loan Document or any Other Agreement.
(including court costs and attorneys’ fees6) of recovering possession If there is a breach of the Premises, Fixed Charge Coverage Ratio requirement and FFCA shall have given Debtor notice thereof and Debtor shall have failed within a period of 30 days from the cost delivery of any alteration such notice to either (i) pay to FFCA the FCCR Amount (without premium or penalty) with respect to such of or repair the Premises (starting with the Premises with the lowest Fixed Charge Coverage Ratio and proceeding in ascending order to the Premises which with the next lowest Fixed Charge Coverage Ratio) as is necessary to cure the breach of the Fixed Charge Coverage Ratio requirement and for which the then Fixed Charge Coverage Ratio (with the definitions in Section 7.B being deemed to be modified as applicable to provide for the calculation of the Fixed Charge Coverage Ratio for each such Premises on an individual basis rather than on an aggregate basis with the other Premises) is below 1.25:1 (each, a "Subject Premises"), (ii) prepay the Note or proper Notes corresponding to prepare the same Subject Premises in whole but not in part (without premium or penalty), or (iii) notify FFCA of Debtor's election to substitute a Substitute Premises for reletting and, each Subject Premises in addition thereto, Landlord at its election accordance with the terms of Section 13 (the failure of Debtor to complete such substitution within 60 days after FFCA shall have and recover from Tenant either (A) given the notice discussed above shall be deemed to be an amount equal to the excess, if any, Event of Default without further notice or demand of any kind being required). For purposes of the total preceding sentence, "FCCR Amount" means that sum of money which, when subtracted from the outstanding principal amount of the Note corresponding to a Subject Premises, and assuming the resulting principal balance is reamortized in equal monthly payments over the remaining term of such Note at the rate of interest set forth therein, will result in an adjusted aggregate Fixed Charge Coverage Ratio for all rents and other charges to be paid by Tenant for the remainder of the term Premises of this Lease at least 1.25:1 based on the prior year's operations. Promptly after Debtor's payment of the FCCR Amount, Debtor and FFCA shall execute an amendment to each such Note in form and substance reasonably acceptable to FFCA reducing the principal amount payable to FFCA under such Note and reamortizing the principal amount of such Note in equal monthly payments over the then reasonable rental value of the Premises for the remainder of the remaining term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, such Note at the election rate of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityinterest set forth therein.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Loan Agreement (Shoneys Inc)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property properly belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Triple Net Office Lease Agreement (Franklin Financial Network Inc.)
Default and Remedies. a. The occurrence following events shall be deemed to be events of default by Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money becoming due to be paid to Landlord hereunder, whether such sum be any installment of the following Rent herein reserved, any other amount treated as additional Rent hereunder, or any other payment or reimbursement to Landlord required herein, including without limitation, any applicable sales, use, transaction or comparable taxes, whether or not treated as additional Rent hereunder, and such failure shall constitute continue for a default under and breach period of five (5) business days from the date of written notice thereof from Landlord; or
(b) Tenant shall fail to comply with any material term, provision or covenant of this Lease other than by Tenant (an “Event of Default”):
i) Failure by Tenant failing to pay when or before due any monetary amounts (including Base Rental and Additional Rental) sum of money becoming due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed paid to Landlord hereunder and delivered by Tenant shall not cure such failure within twenty (20) days (forthwith, if the default involves a hazardous condition) after the initial date of written demand for same notice thereof from Landlord; or
(c) Tenant shall abandon any substantial portion of the Leased Premises; or
(d) Tenant shall fail to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision vacate the Leased Premises immediately upon termination of this LeaseLease by lapse of time or otherwise, if or upon termination of Tenant’s right to possession only; or
(e) If, in spite of the provisions hereof, the interest of Tenant shall be levied upon under execution or be attached by process of law or Tenant shall fail to contest diligently the validity of any lien or claimed lien and give sufficient security to Landlord to insure payment thereof or shall fail to satisfy any judgment rendered thereon and have the same released, and such failure default shall continue for thirty twenty (3020) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. . Upon the occurrence of an Event any such events of Defaultdefault described in this paragraph or elsewhere in this Lease, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform pursue any one or more of the following in addition toremedies without any notice or demand whatsoever, and not in limitation ofexcept as expressly required under applicable Florida law:.
(a) Landlord may, any other remedy at its election, upon three (3) business days notice to Tenant, terminate this Lease or terminate Tenant’s right permitted it by law or in equity or by this Lease:
i) Landlordto possession only, with or without terminating this the Lease, may immediately or at .
(b) Upon any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation termination of this Lease, whether by lapse of time or otherwise, or upon any termination of Tenant’s right to possession without termination of the Lease, Tenant shall surrender and vacate the Leased Premises immediately, and deliver possession thereof to Landlord and Tenant shall fully reimburse hereby grants to Landlord full and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, free license to enter into and upon the Leased Premises in such event with or without terminating this Lease, process of law and to repossess Landlord of the Leased Premises as of Landlord’s former estate and to expel or remove Tenant and any others who may immediately be occupying or at any time thereafter demand in writing that Tenant vacate within the Leased Premises and thereupon Tenant shall vacate the Premises and to remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging therefrom, without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, and without incurring any liability for any damage resulting therefrom. Tenant hereby waiving any right to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such claim damage for each re-entry and removal expulsion and without relinquishing Landlord’s right to Rent or any other right given to Landlord hereunder by Landlord shall not operation of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a law.
(c) Upon termination of this Lease by Landlord.
ivLandlord as a result Tenant’s default, Landlord shall be entitled to recover as damages: (i) Landlordall Rent, with or without terminating this Lease, may immediately or at including any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals amount treated as additional Rent hereunder and upon such other terms sums due and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and payable by Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including on the date of beginning of payment of rent by any subsequent tenant of part or all of termination, plus (ii) the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either sum of: (A) an amount equal to the excessvalue of Rent, including any amounts treated as additional Rent hereof and other sums provided herein to be paid by Tenant for the residue of the stated term hereof, including expenses hereinafter described in subparagraph (d) relating to recovery of the Leased Premises, preparation for reletting and for reletting itself, and (B) the cost of performing any other covenants which would have otherwise been performed by Tenant.
(d) Upon any termination of Tenant’s right to possession only without termination of the Lease as a result of Tenant’s default, Landlord may at Landlord’s option, enter into the Leased Premises, remove Tenant’s signs and other evidences of tenancy, and take and hold possession thereof as provided in subparagraph (b) above, without such entry and possession terminating the Lease or releasing Tenant in whole or in part, from any obligation, including Tenant’s obligation to pay the Rent, including any amounts treated as additional Rent hereunder for the full term. In any such case, Tenant shall pay forthwith to Landlord, if anyLandlord so elects, a sum equal to the entire amount of the total amount Rent including any amounts treated as additional Rent hereunder, for the residue of all rents and the stated term hereof plus any other charges sums provided herein to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationterm.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence A. If default shall be made in the payment of the Rent or any installment thereof or in the payment of any of the following shall constitute a default other sum required to be paid by Tenant under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following provided that written notice of non-payment from shall be given prior to declaring a default for non-payment not more than one (1) time in any calendar year) or under the terms of any other agreement between Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business Tenant or if default shall be made in the Premises);
iii) Failure by Tenant to observe observance or perform performance of any of the other covenants or conditions in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition Lease which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document is required to be completed, executed observe and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any and such other non-monetary covenant, agreement, condition or provision of this Lease, if such failure default shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty , (30) day or a longer period shall be extended for the time reasonably required not to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within exceed an additional thirty (30) days if Tenant is diligently proceeding to cure and such default reasonably cannot be cured within the initial thirty (30) days), or if a default involves a hazardous condition or material violation of Applicable Laws and Tenant does not commence to cure immediately upon written notice to Tenant, or if the interest of Tenant in this Lease shall be levied on under execution or other legal process, or if any voluntary petition in bankruptcy or for corporate reorganization or any similar relief shall be filed by Tenant, or if any involuntary petition in bankruptcy shall be filed against Tenant under any federal or state bankruptcy or insolvency act and shall not have been dismissed within thirty days from the filing thereof, or if a receiver shall be appointed for Tenant or any of the property of Tenant by any court and such receiver shall not have been dismissed within thirty days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they matureappointment, or makes if Tenant shall make an assignment for the benefit of creditors, or applies for or consents if Tenant shall admit in writing Tenant's inability to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for meet Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding's debts as they mature, or other proceeding for relief under if Tenant shall dissolve, begin winding up its affairs or cease its business operations, or if there shall be a material adverse change in the business or financial condition of Tenant that is likely to result in Tenant being unable to perform its obligations hereunder, or Tenant fails to maintain the insurance coverages required hereby, then Landlord may treat the occurrence of any bankruptcy law one or similar law for more of the relief foregoing events as a breach of debtorsthis Lease, is instituted (A) by and thereupon at its option may, with or without notice or demand of any kind to Tenant or any guarantor of Tenant’s obligations under this Leaseother person, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following described remedies, in addition to all other rights and remedies provided at law:
(i) Landlord may terminate Tenant’s tenancy and right of possession and may repossess the Premises by summary process action, by taking peaceful possession or otherwise, in which event Landlord may, but shall be under no obligation to, re-let the same, for such rent and upon such terms as shall be satisfactory to Landlord. For the purpose of such re-letting or otherwise, Landlord is authorized to decorate, repair, remodel or alter the Premises. Following a termination of Tenant’s tenancy and right of possession due to a default for rental payment, Landlord may treat the Tenant’s payment obligations hereunder as accelerated, and may recover damages for Tenant’s nonpayment of Rent, which damages the parties stipulate are equal to: (1) the present value of all future Rent reserved under this Lease, together with any other amounts that may become due, for or during the balance of the Term, plus (2) all costs and expenses that are actually incurred by Landlord, or that Landlord reasonably expects it will incur in connection with Landlord’s re-letting of the Premises, including, without limitation, costs of decoration, repairs, remodeling, alterations and additions, and brokers and attorney’s fees, less (3) the amount of all rents received by Landlord through the date of judgment from a third party resulting from a re-letting of the Premises, and less (4) the present value of the future rents that Landlord reasonably expects it will receive through the end of the Term of this Lease from any third party resulting from a re-letting of the Premises. Following a termination of Tenant’s tenancy and right of possession due to all defaults other than for rental payment, Landlord may without treating Tenant’s payment obligations as accelerated, Landlord may from time to time recover damages for Tenant’s nonpayment of Rent, which damages the parties stipulate are equal to: (1) the amount of unpaid Rent reserved under this Lease, together with any other amounts that may become due, through the date of judgment, plus (2) expenses of re-letting through the date of judgment, including, without limitation, costs of decoration, repairs, remodeling, alterations and additions, and brokers and attorney’s fees, less (3) the amount of rents received by Landlord from a third party resulting from a re-letting of the Premises through the date of judgment. No suit, judgment or recovery under this provision shall be a defense to any subsequent action brought to recover any amount not included in any prior judgment.
(ii) Without terminating Tenant’s tenancy or right of possession, Landlord may from time to time recover damages for nonpayment of any Rent or other sums that become due from Tenant under this Lease, and to enforce any other obligations owed by Tenant under this Lease, through the date of judgment. No suit, judgment or recovery under this provision shall be a defense to any subsequent action brought to recover any amount not included in any prior judgment.
(iii) The making of any election as provided in this Section 21 shall be revocable in Landlord’s sole discretion and at any time Landlord may rescind any election made hereunder and pursue any remedy provided hereunder or otherwise available by law.
(iv) In any action commenced pursuant to any provision in this Section 21, including any action pursuant to a right or remedy provided by law or in equity that is not expressly provided for herein, Tenant waives any right to assert any non-compulsory counterclaims or claims by way of recoupment or set-off.
(v) For purposes of this Section 21: (a) the present value of any sums payable or to be incurred in the future shall be computed, at Landlord’s election, either (1) by applying, as a discount rate, the interest rate payable on U.S. Treasuries maturing as of a date equal or near to the Termination Date as published by The Wall Street Journal, or (2) by applying such other discount rate as is fair and equitable, and (b) in determining the amount of Rent or other amounts that, under the Lease, would become due from Tenant in the future, any amounts that cannot be determined precisely as of the date of judgment shall be computed based on the average monthly amount accruing during the twelve (12) month period preceding the date of termination of Tenant’s tenancy, and (c) notwithstanding anything herein to the contrary, Landlord shall not be required, in calculating damages, to reduce to present value any sums expected to be payable or incurred within six (6) months of the date of judgment payable or to be incurred more than six (6) months from the date of judgment.
B. Any remedies of Landlord provided in this Section 21 shall be in addition to, and shall not in limitation of, any other remedy or right permitted it by way limit the rights and remedies available to Landlord at law or in equity or by as a result of a default of Tenant under this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand . Notwithstanding anything in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminatedcontrary, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled responsible for consequential or punitive damages except as set forth in Sections 31 (Environmental Matters) or with respect to receive any excess claims for consequential or punitive damages brought by third parties which Tenant is required to indemnify Landlord pursuant to Section 12 (Waiver of any such rents collected over the rents reserved hereinClaims and Indemnification). Landlord agrees to use commercially reasonable efforts to mitigate its damages under this Section 21.
v) C. Landlord may immediately or at any time thereafter terminate this Lease, and shall not be deemed in default under this Lease shall be deemed to have been terminated upon receipt by unless Tenant of has delivered written notice of such termination; upon breach to Landlord and Landlord fails to cure such termination breach within thirty (30) days thereafter, provided that if such cure reasonably requires longer than said thirty (30) day period, Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages not be deemed in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of default under this Lease over so long as Landlord has commenced to cure such breach within said thirty (30) days and is diligently prosecuting such cure to completion. In the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents event Landlord defaults and other charges which Landlord would be entitled does not commence to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives cure within thirty (30) days of Tenant’s notice thereof, and such default directly affects or materially impairs Tenant’s use and enjoyment of the notice Premises for Tenant’s use, Tenant may make such repairs within the Premises necessary to restore Tenant’s use, and Landlord will reimburse Tenant for the reasonable and necessary third-party costs incurred by Tenant upon receipt from Tenant of termination.
via statement of such costs in reasonable detail and such backup materials as Landlord may reasonably request. If Landlord fails to reimburse Tenant as aforesaid within sixty (60) The exercise days of receipt by Landlord of any one or more of the rights such statement and remedies provided in this Lease shall backup materials not prevent the subsequent exercise disputed by Landlord in good faith, Tenant may offset such undisputed amounts against the installments of Rent next coming due, provided that in no event shall the amount of any one or more offset exceed twenty percent (20%) of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or Base Rent in any other manner and are in addition to any other rights provided for or allowed by law or in equitymonth.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement (Quantum-Si Inc)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and this Agreement: (i) breach of any of Subgrantee's covenants, agreements, or certifications in this Lease by Tenant Agreement, including the expenditure of WAP Funds for any use other than for the purposes set out in the Program Guidelines; or (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of demand by DOE upon the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended Department for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution repayment of WAP Funds for any action or the attachment by legal process inaction of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsSubgrantee.
b. Upon the occurrence of an Event of Defaultany default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord Department shall have the right to re-enter and take possession terminate this Agreement by written notice of default to Subgrantee. Subgrantee shall have 30 days from the date the Department’s notice is postmarked to cure the default, if the default is curable. After the conclusion of the Premises30-day period, if Subgrantee has not cured or commenced to cure the default to the satisfaction of the Department, the Department may at its option immediately terminate this Agreement. In the event of termination by the Department:
(i) Subgrantee’s authority to request reimbursement shall cease and Subgrantee shall have no right, title, or interest in or to any of the WAP Funds not disbursed;
(ii) the Department may demand repayment from Subgrantee of any amounts the Department determines were not expended in accordance with this Agreement; and
(iii) the Department, at its discretion, may demand repayment of all WAP Funds distributed to Subgrantee.
iiic. Notwithstanding Section 6.a-b. above, the Department may suspend Subgrantee from the Program immediately upon making a determination that: (1) Landlordnot to do so would pose an imminent danger to life, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction ofhealth, or property; or (2) the performance by Subgrantee is not in compliance with consent the Program Guidelines. The Department will notify Subgrantee of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent suspension by any subsequent tenant of part or all of certified mail. The notice shall include the Premises, and thereafter Tenant shall pay monthly during grounds for the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants suspension and the rent and other charges reserved in this Lease, but Tenant shall not be entitled opportunity for Subgrantee to receive any excess of any such rents collected over request a conference with the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover Department. If the Department receives a request from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord Subgrantee for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost a conference within fifteen (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (3015) days from the mailing date of the notice of terminationthe suspension, the Department will schedule a conference with Subgrantee. After the conference, the Department will promptly either: terminate the Agreement; continue the suspension; or reinstate Subgrantee.
vi) The exercise by Landlord of any one or more of d. In addition to the rights and remedies provided contained in this Lease shall not prevent Agreement, the subsequent exercise Department may at any time proceed to protect and enforce all rights available to the Department by Landlord suit in equity, action at law, or by any other appropriate proceedings, all of any one or more of the other which rights and remedies herein provided. All remedies provided for in shall survive the termination of this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityAgreement.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. (a) The occurrence following events shall be deemed to be events of default by Tenant under this Lease:
(1) Tenant shall fail to pay when or before due any sum of money in whole or in part becoming due to be paid to Landlord hereunder whether such sum be any installment of the following rent herein reserved any other treated as additional rent hereunder or any other payment or reimbursement to Landlord required herein whether or not treated as additional rent hereunder and such failure shall constitute continue for a default under and breach period of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-from the date such payment from Landlord was due; or
(2) Tenant shall fail to Tenant;
ii) Abandonment of the Premises (defined as comply with any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe term, provision or perform any of the covenants in respect of assignment and subletting covenant of this Lease;
iv) Failure Lease other than by Tenant failing to cure forthwith, immediately after receipt pay when or before due any sum of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required money becoming due to be completed, executed paid to Landlord hereunder and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if shall not cure such failure shall continue for within thirty (30) days (except immediately and forthwith if the default involves a hazardous condition) after written notice thereof from Landlord to Tenant; provided Tenant except that should completion of such cure not be possible within such thirty (30) day period Tenant shall be extended for the time reasonably required have ninety (90) days to complete effect same so long as Tenant has within such cure, if such failure cannot reasonably be cured within said thirty (30) day period commenced cure and pursues same with due and continuous diligence; or
(3) Tenant commences shall fail to cure such failure within said thirty vacate the Leased Premises immediately and forthwith upon termination of this Lease by lapse of time or otherwise or upon termination of Tenant's right to possession only; or
(304) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy If in spite of the provisions hereof, the interest of Tenant shall be levied upon under execution or the attachment be attached by legal process of law or Tenant shall fail to contest diligently the leasehold interest validity of Tenant, any lien or claimed lien upon the filing or creation of a lien in respect of Leased Premises and give sufficient security to Landlord to insure payment thereof and such leasehold interest, which lien default shall not be released or discharged within thirty continue for ten (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (6010) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of written notice thereof to Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. (b) Upon the occurrence of an Event any such events of Defaultdefault described in subparagraph (a) above or elsewhere in this Lease, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option option, at its election, to do terminate this lease or to terminate Tenant's right to possession only, without terminating this lease and perform to -30- 110 pursue any one or more of the following remedies without any further notice or demand whatsoever, provided that, upon any termination of this Lease or upon any termination of Tenant's right to possession without termination of this Lease. Tenant shall in addition toeither event surrender possession and vacate the leased Premises immediately upon the expiration of five (5) days next following the giving by Landlord to Tenant of written notice demanding same and deliver possession thereof to landlord, and not tenant hereby grants to Landlord full and free license to enter into and upon the Leased Premises in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, such event with or without terminating this Lease, may immediately or at any time thereafter re-enter process of law and to repossess Landlord of the Leased Premises and correct to expel or repair remove Tenant and any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, others who may be occupying or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate within the Leased Premises and thereupon Tenant shall vacate the Premises and to remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging therefrom without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer and without incurring any liability for any damage resulting therefrom. Tenant hereby waiving any right to or placed on the Premises by, at the direction of, or with consent of Tenant. Any claim damage for such re-entry and removal expulsion and without relinquishing any right given to Landlord hereunder or by Landlord shall not operation of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a law:
(1) Upon termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions Landlord shall be entitled to recover as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay damages all rent including any amount treated as additional rent hereunder and all other charges sums due under this lease up to and including payable by Tenant on the date of beginning of payment of rent by any subsequent tenant of part or all of termination, plus the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost sum of: (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (Ai) an amount equal to the excess, if any, then present value of the total amount of all rents rent including any amounts treated as additional rent hereunder and other charges sums provided herein to be paid by Tenant for the remainder residue of the term of this Lease over stated Term hereof less the then reasonable fair rental value of the Leased Premises for such residue (taking into account the remainder time and expense necessary to obtain a replacement tenant or tenants, including expenses hereinafter described in subparagraph (b)
(2) hereinbelow relating to recover of the term of this LeaseLeased Premises, or preparation for reletting and for reletting itself, and (Bii) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions cost of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in performing any other manner and are in addition to any other rights provided for or allowed covenants which otherwise would have been performed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.; or
Appears in 1 contract
Sources: Landlord's Consent to Second Sublease (Witness Systems Inc)
Default and Remedies. a. The occurrence A. If Tenant defaults in the payment of any of the following shall constitute a default under Basic Rent (and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder such payment is not made within ten (10) days following of written notice of non-payment from Landlord to Tenant;
ii) Abandonment of such default given by Landlord), or if the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business shall be deserted, abandoned or vacated, or if Tenant defaults in the Premises);
iii) Failure by Tenant to observe or perform a material respect in compliance with any of the other covenants in respect of assignment and subletting or conditions of this Lease;
iv) Failure by Tenant Lease and fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant the same within twenty fifteen (2015) days after the initial receipt of notice specifying the default, then at the expiration of said ten (10) days or fifteen (15) days, as the case may be, Landlord may (a) cancel and terminate this Lease upon written demand notice to Tenant (whereupon the Term shall terminate and expire, and Tenant shall then quit and surrender the Premises to Landlord, but Tenant shall remain liable as hereinafter provided) and/or (b) at any time thereafter re-enter and resume possession of the Premises as if this Lease had not been made. Anything above to the contrary notwithstanding, the said fifteen (15) day period of time for same to Tenant;
vi) Failure by Tenant to observe or perform any other cure of non-monetary covenant, agreement, condition or provision of this Lease, if defaults shall extend beyond such failure shall continue for thirty fifteen (3015) days after written notice thereof from Landlord for the period of time necessary to Tenant; effect the cure provided that Tenant shall diligently commence the cure during such thirty fifteen (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (3015) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter shall diligently and continuously proceeds prosecute the cure to cure such failure;completion.
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under B. If this Lease becomes insolvent shall be terminated or bankrupt if Landlord shall be entitled to re-enter the Premises, and dispossess or admits in writing its inability remove Tenant under the provisions of this Section (either or both of which events are hereinafter referred to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default"Termination"), Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy Landlord's agents or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, servants may immediately or at any time thereafter re-enter the Premises and correct remove therefrom Tenant, its agents, employees, servants, licensees, and any Sub-Tenants and other persons, firms or repair corporations, and all or any condition which shall constitute a failure on Tenant’s part to keepof its or their property therefrom, observe, perform, satisfy, either by summary dispossess proceedings or abide by any termsuitable action or proceeding at law or by peaceable re-entry or otherwise, conditionwithout being liable to indictment, covenantprosecution or damages therefor, agreementand may repossess and enjoy the Premises, or obligation including all additions, alterations and improvements thereto.
C. In case of this LeaseTermination, the Basic Rent and all other charges required to be paid by Tenant hereunder shall thereupon become due and shall be paid by Tenant up to the time of the Termination, and Tenant shall fully reimburse also pay to Landlord all reasonable expenses which Landlord may then or thereafter incur as a result of or arising out of a Termination, including but not limited to court costs, attorneys' fees, brokerage commissions, and compensate Landlordcosts of terminating the tenancy of Tenant, for Landlord’s actual cost incurredre-entering, on demand.
ii) Landlord, with dispossessing or without terminating this Lease, may immediately or at any time thereafter demand in writing that otherwise removing Tenant vacate and restoring the Premises to good order and thereupon Tenant shall vacate condition, and from time to time altering and otherwise preparing the Premises and remove therefrom same for re-letting (including but not limited to costs of removing all property thereon belonging to or placed on any part of the Premises byAlterations made by Tenant). Upon a Termination, at the direction ofLandlord shall, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right use commercially reasonably efforts to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of let the Premises, and thereafter Tenant shall pay monthly during in whole or in part, either in its own name or as Tenant's agent, for a term or terms which, at Landlord's option, may be for the remainder of the term Term or Renewal Term, or for any longer or shorter period.
D. In addition to the payments required hereinabove in this Section, Tenant shall be obligated to, and shall, pay to Landlord, upon demand and at Landlord's option:
(i) liquidated damages in an amount which, at the time of this Lease Termination, is equal to the differencepresent value, discounted at the rate of 5% per annum, of the excess, if any, between of the rent then present amount of the installments of Basic Rent and other charges collected from any such subsequent tenant or tenants and Additional Rent reserved hereunder, for the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess period which would otherwise have constituted the unexpired portion of any such rents collected the Term over the rents reserved herein.then present rental value of the Premises for such unexpired portion of the Term or,
v(ii) Landlord may immediately or at any time thereafter terminate this Leasedamages payable in monthly installments, in advance, on the first day of each calendar month following the Termination, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord continuing until the date originally fixed herein for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession expiration of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting andTerm, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount amounts equal to the excess, if any, of the total amount sums of the aggregate expenses paid by Landlord during the month immediately preceding such calendar month for all rents and other charges such items as, by the terms of this Lease, are required to be paid by Tenant, plus an amount equal to the installment of Basic Rent which would have been payable by Tenant hereunder in respect to such calendar month, had this Lease not been terminated, over the sum of rents, if any, collected by or accruing to Landlord in respect to such calendar month pursuant to a re-letting or to any holding over by any Sub-Tenants of Tenant.
E. Landlord shall in no event be liable for failure to re-let the Premises, or in the event that the Premises are re-let, for failure to collect rent due under such re-letting; and in no event shall Tenant be entitled to receive any excess of rents over the sums payable by Tenant to Landlord hereunder but such excess shall be credited to the unpaid rentals due hereunder, and to the expenses of re-letting and preparing for re-letting as provided herein.
F. Suit or suits for the remainder recovery of damages hereunder, or for any installments of rent, may be brought by Landlord from time to time at its election, and nothing herein contained shall be deemed to require Landlord to postpone suit until the term of this Lease over date when the then reasonable rental value of Term would have expired if it had not been terminated under the Premises for the remainder of the term provisions of this Lease, or under any provision of law, or had Landlord not re-entered into or upon the Premises.
G. Landlord, at its option, in addition to any and all remedies available to it, shall have the right to charge a fee for payment for rent received later than five (B5) days after the rents and other charges date due, which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election fee, constituting Additional Rent, shall be made by Landlord by serving written notice upon Tenant the greater of its choice of one five percent (5%) of the two said alternatives within thirty delinquent payment or one and one-half percent (301-1/2%) days per month for each and every month of the notice amount of terminationthe overdue rent.
vi) The exercise by Landlord H. Tenant hereby waives all rights of redemption to which Tenant or any one or more person claiming under Tenant might be entitled, after an abandonment of the rights Premises, or after a surrender and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more acceptance of the other rights Premises and remedies herein provided. All remedies provided for the Tenant's leasehold estate, or after a dispossession of Tenant from the Premises, or after a termination of this Lease, or after a judgment against Tenant in this Lease are cumulative and mayan action in ejectment, at or after the election issuance of Landlord, be exercised alternatively, successivelya final order or warrant of dispossess in a summary proceeding, or in any other manner and are proceeding or action authorized by any rule of law or statute now or hereafter in addition to force or effect.
I. No mention in this Lease of any specific right or remedy shall preclude Landlord from exercising any other rights provided for right or allowed by from having any other remedy or from maintaining any action to which Landlord may otherwise be entitled hereunder or at law or in equityinequity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. (a) The occurrence of any of the following shall constitute an Event of Default ("Event of Default") under this Lease on the part of Tenant:
(i) Failure to pay any payment of Rent when due (including without limitation Base Rental, Tenant's Forecast Additional Rental and Tenant's Additional Rental Adjustment) and such failure to pay continues for a default under period of five (5) Business Days after written notice from Landlord of such failure to pay; provided, however, Landlord shall not be required to provide such notice more than two (2) times in any calendar year, the third (3rd) such failure in any calendar year constituting an Event of Default without Landlord providing such notice;
(ii) Tenant's interest in this Lease or the Leased Premises shall be subjected to any attachment, execution, levy or other judicial seizure pursuant to any order or decree entered against Tenant in any legal proceeding and breach such order or decree is not vacated or bonded against so as to prevent seizure upon the earlier to occur of (aa) fifteen (15) days prior to the sale of such interest pursuant to such order or decree, or (bb) thirty (30) days after Tenant has notice of the entry of the order;
(iii) if Tenant or any guarantor of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental Guarantor) is a corporation, Tenant or any such guarantor shall cease to exist as a corporation in good standing in the state of its incorporation, or if Tenant or any such guarantor is a partnership or other entity, Tenant or any such guarantor shall be dissolved (unless immediately reconstituted) or otherwise liquidated and Additional Rental) due hereunder Tenant shall fail to cure such breach within ten thirty (1030) days following after Tenant receives written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v(iv) Failure by Tenant breaches or fails to completecomply with any term, execute and deliver any instrument provision, condition, or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision covenant of this Lease, if other than as described in Section 7.1(a)(i), (ii), (iii) or (v) or with any of the Project Rules now or hereafter established to govern the operation of the Building or Project, including without limitation any failure by Tenant to comply with the provisions of Section 8.1 of this Lease, and such breach or failure shall continue continues for thirty (30) days after written notice thereof from Landlord of such breach or failure to Tenant; provided that comply or in the event such breach or failure is curable but cannot be cured within thirty (30) days, Tenant does not commence to cure such breach or failure promptly within such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to thereafter pursue such cure until such failurebreach or failure is remedied;
vii(v) The levy upon execution Tenant shall fail or the attachment by legal process refuse to move into or take possession of at least seventy-five percent (75%) of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged Leased Premises within thirty one hundred eighty (30180) days from after the date of such filing;Commencement Date; or
viii(vi) Tenant if a breach occurs under, or any guarantor of Tenant’s obligations under this Lease becomes insolvent (including Guarantor) neglects or bankrupt fails to perform or admits in writing its inability to pay its debts as they matureobserve, any covenant, term, provision, or makes an assignment for condition contained in any such guaranty of this Lease (including the benefit of creditors, or applies for or consents Guaranty). Notwithstanding anything to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under contrary contained in this Lease, or a default by Tenant under the Building II Lease (Bdefined in Section 11.4 hereof) against shall not be an Event of Default by Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthshereunder.
b. (b) Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenant’s 's part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Project Rules now in effect or hereafter adopted in accordance with the terms of this Lease or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate LandlordLandlord on demand for the costs incurred by Landlord in doing so, plus a fee to Landlord for Landlord’s administrative cost recovery in accordance with Exhibit K; or
(ii) Landlord may terminate this Lease and forthwith repossess the Leased Premises and remove all persons or property therefrom, and be entitled to recover as damages a sum of money equal to the total of (A) the cost of recovering the Leased Premises (including, without limitation, attorneys' fees and costs of suit), (B) the actual cost incurredof any alterations of, or repairs to, the Leased Premises which are necessary or proper to prepare the same for reletting, (C) the unpaid Rent owed at the time of termination, plus interest thereon from due date at the Applicable Rate, (D) the present value of the balance of the Rent for the remainder of the Term less the present value of the fair market rental value (and in computing the fair market rental value the factors taken into account shall include without limitation the market rental concessions and the time necessary to relet the Leased Premises) of the Leased Premises for the remainder of the Term (in each case using a discount rate equal to the rate per annum applicable to United States Treasury notes maturing on demand.or about the expiration of the Term and issued in the year that the Event of Default occurs, or if no such note exists, the notes issued closest to such year, plus one hundred fifty basis points), and (E) any other sum of money and damages owed by Tenant to Landlord; or
ii(iii) Landlord, with Landlord may terminate Tenant's right of possession (but not this Lease) and may repossess the Leased Premises by forcible entry or detainer suit or other lawful means and without terminating this Lease, and remove all persons or property therefrom, (Tenant hereby waiving any claim by reason of such reentry, repossession or removal conducted in accordance with Legal Requirements or this Lease or by issuance of any distress warrant or writ of sequestration), in which event Landlord shall use reasonable efforts to relet the Leased Premises or any part thereof for the account of Tenant for such rent and upon such terms as shall be satisfactory to Landlord (however, Landlord shall be under no obligation to relet the Leased Premises or any portion thereof in preference to any other space in the Complex or on terms unsatisfactory to Landlord). For the purpose of such reletting Landlord is authorized to decorate or to make any repairs, changes, alterations or additions in or to the Leased Premises, or provide leasing inducements or brokerage commissions that may immediately be reasonably' required to relet the Leased Premises. If Landlord is unable to relet the Leased Premises using reasonable efforts to do so or if the Leased Premises are relet and a sufficient sum shall not be realized from such reletting (after paying the unpaid amounts due hereunder that are earned but unpaid at the time of reletting plus interest thereon at the Applicable Rate, the cost of recovering possession [including, without limitation, reasonable attorneys' fees and costs of suit], all of the costs and expenses of such decorations, repairs, changes, alterations and additions reasonably required to relet the Leased Premises and all other expenses reasonably required in connection with such reletting [including, without limitation, leasing inducements and brokerage commission] and of the collection of the rent accruing therefrom) to satisfy the Rent provided for in this Lease to be paid, then Tenant shall pay to Landlord as damages a sum equal to the amount of the rental reserved in this Lease for such period or periods or, if the Leased Premises have been relet, Tenant shall satisfy and pay any such deficiency upon demand therefor from time to time as the same accrues or becomes due. Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Section 7.1 from time to time on one or more occasions without Landlord being obligated to wait until expiration of the Term, and no delivery or recovery of any portion due Landlord hereunder shall be any defense in any action to recover any amount not theretofore reduced to judgment in favor of Landlord, nor shall such reletting be construed as an election on the part of Landlord to terminate this Lease unless a written notice of such intention be given to Tenant by Landlord. Notwithstanding any such reletting without termination, Landlord may at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging elect to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of terminate this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.for such previous breach; or
(iv) Landlord, with or without terminating this Lease, is entitled and is hereby authorized, without any notice to Tenant whatsoever, to enter upon the Leased Premises by use of a master key, a duplicate key, picking the locks, or other peaceable means, and to change, alter, and/or modify the door locks on all entry doors of the Leased Premises, thereby excluding Tenant, and its officers, principals, agents, employees, visitors and representatives therefrom. If Landlord has either terminated Tenant's right of possession to the Leased Premises pursuant to the foregoing provisions of this Lease, or has terminated this Lease by reason of the Event of Default, Landlord shall not thereafter be obligated to provide Tenant with a key to the Leased Premises at any time; provided, however, that in any such instance, during Landlord's normal business hours and at the convenience of Landlord, and upon the written request of Tenant accompanied by such written waivers and releases as Landlord may immediately reasonably require, Landlord will escort Tenant or its authorized personnel to the Leased Premises to retrieve any personal belongings or other property of Tenant not subject to Landlord's liens or security interests described in this Lease or available under applicable laws. If Landlord elects to exclude Tenant from the Leased Premises without permanently repossessing the Leased Premises or terminating this Lease pursuant to the foregoing provisions of this Lease, then Landlord (at any time thereafter relet prior to permanent repossession or termination) shall not be obligated to provide Tenant a key to re-enter the Leased Premises or any part thereof for until such time or times, at such rental or rentals and upon such other terms and conditions as Landlord all delinquent Rent has been paid in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent full and all other charges due under this lease up to and including the date Events of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the differenceDefault, if any, between the rent have been completely cured to Landlord's satisfaction, and other charges collected from Landlord has been given assurance reasonably satisfactory to Landlord evidencing Tenant's ability to satisfy its remaining obligations under this Lease. During any such subsequent tenant temporary period of exclusion, Landlord will, during Landlord's regular business hours and at Landlord's convenience, upon written request by Tenant, escort Tenant or tenants its authorized personnel to the Leased Premises to retrieve personal belongings of Tenant or its employees, and such other property of Tenant as is not subject to Landlord's liens and security interests described in this Lease or available under applicable laws. The provisions hereof shall override and control any conflicting provisions of Section 93.002 of the rent and other charges reserved in Texas Property Code (as amended).
(c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the provisions of this Lease, but Tenant hereby waives all claims for damages that may be caused by such re-entry or termination by Landlord pursuant to the provisions of this Lease and applicable Legal Requirements. Tenant shall not be entitled to receive and does hereby indemnify and hold Landlord harmless from any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Leaseloss, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and reasonable attorneys’ ' fees) ), or damages suffered by Landlord by reason of recovering possession of the Premises, the cost of any alteration of such re-entry or repair termination pursuant to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term terms of this Lease over the then reasonable rental value of the Premises for the remainder of the term and applicable Legal Requirements. This indemnity shall survive termination of this Lease, . No such re-entry or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election termination shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationconsidered or construed to be a forcible entry.
vi(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii(e) No act Except where the provisions of this Lease grant Tenant an express exclusive remedy, or deny Tenant a remedy, if Landlord should fail to perform or observe any covenant, term, provision or condition of this Lease and such default should continue beyond a period of five (5) Business Days as to a monetary default or thirty (30) days (or such longer period as is reasonably necessary to remedy such default, provided such default can be cured and Landlord shall continuously and diligently pursue such remedy until such default is cured) as to a non-monetary default, after in each instance written notice (the "First Notice") thereof is given by Tenant to Landlord (and a copy of said notice is sent simultaneously therewith to the Notice Parties), then, thereafter in any such event Tenant shall have the right, upon giving an additional notice (the "Second Notice") to Landlord (and Tenant shall simultaneously send a copy of the Second Notice to the Notice Parties) and if such default shall continue uncured by Landlord with respect to and the Premises shall terminate this Lease, including, but not limited to, acceptance Notice Parties for an additional ten (10) Business Days after receipt by Landlord and the Notice Parties of the keysSecond Notice, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord (i) to Tenantcure such default, and any reletting Landlord shall reimburse Tenant for all reasonable costs actually expended by Tenant in so curing said default, plus a fee to Tenant for administrative cost recovery equal to ten percent (10%) of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.such costs
Appears in 1 contract
Default and Remedies. a. The occurrence following events shall be deemed to be -------------------- events of default by Tenant under this Lease: (i) Tenant shall fail to pay any installment of Base Monthly Rental, Additional Rent or any other charge or assessment against Tenant pursuant to the following terms hereof within five (5) days after notice of failure; (ii) Tenant shall constitute a default fail to comply with any term, provision, covenant or warranty made under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-Tenant, other than the payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe Base Monthly Rental or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created Additional Rent or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenantcharge or assessment payable by Tenant, agreement, condition or provision of this Lease, if and shall not cure such failure shall continue for within thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be , as extended for the time as reasonably required necessary to complete such effect cure, if such failure cannot reasonably be cured within said thirty (30) day period and provided Tenant commences cure and diligently pursues same to cure such failure within said thirty completion; (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viiiiii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent shall make a general assignment for the benefit of creditors, or bankrupt or admits shall admit in writing its inability to pay its debts as they maturebecome due, or makes an assignment for the benefit of creditorsshall file a petition in bankruptcy or shall be adjudicated as bankrupt or insolvent, or applies for or consents to the appointment of shall file a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, petition in any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, proceeding seeking any reorganization, arrangement, insolvency composition, readjustment, liquidation, dissolution or liquidation proceeding, or other proceeding for similar relief under any bankruptcy present or future statute, law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Leaseregulation, or shall file an answer admitting or fail timely to contest the material allegations of a petition filed against it in any such proceeding; (Biv) a proceeding is commenced against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or is consented to by it similar relief under any present or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe future statute, law or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition toregulation, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease proceeding shall not have been terminated, Tenant dismissed within forty-five (45) days after the commencement thereof; (v) a receiver or trustee shall continue to pay be appointed for the Prime Premises or for all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or substantially all of the Premises, and thereafter assets of Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term guarantor of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.;
Appears in 1 contract
Default and Remedies. a. The occurrence of any Any of the following occurrences or acts shall constitute a an event of default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant under this Lease: if Lessee shall: fail to pay any monetary amounts (including Base Rental rent or other sums due under this Lease, as and Additional Rental) due hereunder within when required to be paid by Lessee hereunder, and such failure shall continue for a period of ten (10) days following ▇▇▇▇▇▇’s receipt of written notice from Lessor of such failure to pay rent or other sums due hereunder; however, an Event of Default shall occur hereunder without any obligation of Lessor to give any notice if ▇▇▇▇▇▇ fails to pay any amount due hereunder when due and, during the twelve (12) month period immediately preceding such failure, Lessor has given Lessee written notice of non-payment from Landlord failure to Tenant;
iipay such amount on two (2) Abandonment of the Premises or more occasions; or fail to provide any insurance coverage as and when required by this Lease and such failure shall continue for ten (defined as any period of one hundred and eighty (18010) consecutive days without operation of Tenantfollowing ▇▇▇▇▇▇’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of written notice from LandlordLessee of such failure to provide such insurance coverage; or fail to discharge any lien, any hazardous condition which Tenant has created encumbrance, or permitted in violation of law charge upon the Property to the extent resulting from ▇▇▇▇▇▇’s actions or of this Lease;
v) Failure by Tenant to complete, execute omissions and deliver any instrument hold Lessor harmless from the same as provided herein; or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant fail to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if hereof and such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that Lessee of such failure, or such longer period not to exceed a total of ninety (90) days as reasonably may be required to cure such default if the same reasonably cannot be cured within such thirty (30) day period shall be extended for and Lessee commences to effect the time reasonably required to complete cure within such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences diligently pursues such cure thereafter; or subject to cure delays caused by force majeure, fail to commence construction of the Lessee Improvements within six (6) months after the date of the Lease despite its best efforts and such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within continue for thirty (30) days after ▇▇▇▇▇▇’s receipt of written notice from Lessor of such failure; or subject to delays caused by force majeure, fail to complete construction of the Lessee Improvements within eighteen (18) months after the date of the Lease despite its best efforts and such filing;
viiifailure shall continue for thirty (30) Tenant days after ▇▇▇▇▇▇’s receipt of written notice from Lessor of such failure; if Lessee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy law or any guarantor of Tenant’s obligations under this Lease becomes insolvent similar federal or state law, or shall be adjudicated a bankrupt or admits shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they maturebecome due, or makes an assignment for if a petition or answer proposing the benefit adjudication of creditorsLessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal or state law shall be filed in any court and Lessee shall consent to or acquiesce in the filing thereof or such petition or answer shall not be discharged or denied within sixty (60) days after the occurrence of any of the foregoing; or if a receiver, trustee, or applies for liquidator of Lessee or consents to the appointment of a trustee or receiver for all or a major part substantially all of its property;
ix) A trustee the assets of Lessee or receiver is of the Property or ▇▇▇▇▇▇’s leasehold interest therein shall be appointed for Tenantin any proceeding brought by ▇▇▇▇▇▇, or if any guarantor of Tenant’s obligations under this Lease such receiver, trustee, or for a major part of either party’s property liquidator shall be appointed in any proceeding brought against Lessee and is shall not be discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant▇▇▇▇▇▇’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice from Lessor of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Leaseappointment, or (B) the rents and other charges which Landlord would be entitled if Lessee shall consent to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationor acquiesce in such appointment.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Ground Lease Agreement
Default and Remedies. a. Section 13.1 The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
iDefault (herein so called) Failure by of Tenant under this Lease: (a) if Tenant fails to pay any monetary amounts Rent hereunder as and when such Rent becomes due and such failure shall continue for more than five (including Base Rental 5) days after Landlord gives Tenant notice of past due Rent; (b) if Tenant fails to pay Rent on time more than twice in any period of twelve (12) months, notwithstanding that such payments have been made within the applicable cure period; (c) if the Premises become vacant, deserted, or abandoned for more than ten (10) consecutive days or if Tenant fails to take possession of the Premises on the Commencement Date or promptly thereafter; (d) if Tenant permits to be done anything which creates a lien upon the Premises and Additional Rentalfails to discharge or bond such lien or post such security with Landlord as is required by Article 11; (e) due hereunder within if Tenant violates the provisions of Article 8 by attempting to make an unpermitted assignment or sublease; (f) if Tenant fails to maintain in force all policies of insurance required by this Lease and such failure shall continue for more than ten (10) days following written after Landlord gives Tenant notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii; (g) The levy upon execution if any petition is filed by or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) against Tenant or any guarantor of Tenant’s obligations this Lease under any present or future section or chapter of the Bankruptcy Code, or under any similar law or statute of the United States or any state thereof (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of commencement), or if any order for relief shall be entered against Tenant or any guarantor of this Lease in any such proceedings; (h) if Tenant or any guarantor of this Lease becomes insolvent or bankrupt or admits makes a transfer in writing its inability to pay its debts as they mature, fraud of creditors or makes an assignment for the benefit of creditors; (i) if a receiver, custodian, or applies trustee is appointed for the Premises or consents to the appointment of a trustee or receiver for all or a major part substantially all of its property;
ix) A trustee the assets of Tenant or receiver is appointed for Tenant, of any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and Lease, which appointment is not discharged vacated within sixty (60) days after following the date of such appointment;
x; (j) Any bankruptcy, reorganization, arrangement, insolvency if Tenant fails to perform or liquidation proceeding, or observe any other proceeding for relief under any bankruptcy law or similar law for the relief terms of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty such failure shall continue for more than ten (6010) days after Landlord gives Tenant notice of such institution; failure, or
xi, if such failure cannot be corrected within such ten (10) Tenant’s repeated day period, if Tenant does not commence to correct such default within such ten (l0) day period and thereafter diligently prosecute the correction of same to completion within a reasonable time and in any event prior to the time a failure to observe complete such correction could cause Landlord to be subject to prosecution for violation of any law, rule, ordinance or regulation or causes, or could cause, a default under any mortgage, underlying lease, tenant leases or other agreements applicable to the Project; or (k) if Tenant fails to perform any term (other than the payment of the other covenants, terms or conditions hereof Rent) of this Lease more than three (3) times, in the aggregate, times in any period of twelve (12) consecutive months, notwithstanding that Tenant has corrected any previous failures within the applicable cure period.
b. Section 13.2 Upon the occurrence of an any Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option right, at Landlord’s option, to elect to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy without further notice or right permitted it by law or in equity or by this Lease:
idemand to Tenant: (a) Landlord, with or without terminating terminate this Lease, may in which event Tenant shall immediately or at any time thereafter re-enter surrender the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurredand, on demand.
ii) Landlordif Tenant fails to so surrender, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right right, without notice, to re-enter upon and take possession of the Premises.
iiiPremises and to expel or remove Tenant and its effects without being liable for prosecution or any claim for damages therefor, and Tenant shall, and hereby agrees to, indemnify Landlord for all loss and damage which Landlord suffers by reason of such termination, including damages in an amount equal to the total of (1) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the costs of recovering the Premises and remove therefrom all other expenses incurred by Landlord in connection with Tenant’s default; (2) the unpaid Rent earned as of the date of termination, plus interest at the Interest Rate; (3) all other sums of money and damages owing by Tenant to Landlord, and all property belonging to or placed on the Premises by(4) an amount which, at the direction of, or date of such termination represents the present value (determined by using a discount rate equal to the then average rate for M▇▇▇▇’▇ “AAA” rated corporate bonds with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or maturities equal to the Remaining Term (as hereinafter defined)) of the Premises by Tenant and shall not excess, if any, of itself constitute a termination of this Lease by Landlord.
iv(i) Landlordthe Rent, with or without terminating this LeaseBase Rent, may immediately or at any time thereafter relet the Premises or any part thereof for such time or timesAdditional Rent, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including sums which would have been payable hereunder by Tenant for the period commencing with the day following the date of beginning such termination and ending with the stated expiration date of payment the Term, as extended (hereinafter referred to as the “Remaining Term”), over (ii) the aggregate reasonable rental value of rent by any subsequent tenant of part or the Premises for the same period, all of which present value of such excess sum shall be deemed immediately due and payable (in determining the Premisesaggregate reasonable rental value pursuant to item (ii) above, the parties hereby agree that all relevant factors shall be considered as of the time Landlord seeks to enforce such remedy, including, but not limited to, (A) the length of time remaining in the Term of this Lease, (B) the then-current market conditions in the general area in which the Premises are located, (C) the likelihood of reletting the Premises for a period of time equal to the Remaining Term, (D) the net effective rental rates (taking into account all concessions) then being obtained for space of similar type and size in similar type buildings in the general area in which the Premises are located, (E) the vacancy levels in comparable quality developments in the general area in which the Premises are located, (F) the anticipated duration of the period the Premises will be unoccupied prior to reletting, (G) the anticipated cost of reletting, and thereafter (H) the current levels of new construction that will be completed during the Remaining Term and the degree to which such new construction will likely affect vacancy rates and rental rates in comparable quality developments in the general area in which the Premises are located; such payment shall be and constitute Landlord’s liquidated damages, Landlord and Tenant acknowledging and agreeing that it is difficult to determine the actual damages Landlord would suffer from Tenant’s default and that the agreed upon liquidated damages are not punitive or penalties and are just, fair and reasonable); or (b) enter upon and take possession of the Premises without terminating this Lease and without being liable to prosecution or any claim for damages therefor, and, if Landlord elects, relet the Premises on such terms as Landlord deems advisable, in which event Tenant shall pay monthly during to Landlord on demand the remainder cost of repossession, renovating, repairing and altering the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent Premises for a new tenant or tenants and any deficiency between the Rent payable hereunder and the rent and other charges reserved in this Leasepaid under such reletting; provided, but however, that Tenant shall not be entitled to receive any excess of payments received by Landlord from such reletting. Landlord’s failure to relet the Premises shall not release or affect Tenant’s liability for Rent or for damages; or (c) enter the Premises without terminating this Lease and without being liable for prosecution or any such rents collected over claim for damages therefor and maintain the rents reserved herein.
v) Premises and repair or replace any damage thereto or do anything for which Tenant is responsible hereunder. Tenant shall reimburse Landlord may immediately or at upon demand for any time thereafter terminate expenses which Landlord incurs in thus effecting Tenant’s compliance under this Lease, and Landlord shall not be liable to Tenant for any damages with respect thereto.
Section 13.3 No agreement to accept a surrender of the Premises and no act or omission by Landlord or Landlord’s agents during the Term shall constitute an acceptance or surrender of the Premises unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant. No provision of this Lease shall be construed as an obligation upon Landlord to mitigate Landlord’s damages under the Lease.
Section 13.4 No provision of this Lease shall be deemed to have been terminated upon receipt waived by Tenant Landlord unless such waiver is in writing and signed by Landlord. Landlord’s acceptance of written notice Rent following an Event of Default hereunder shall not be construed as a waiver of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord Event of Default. No custom or practice which may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages grow up between the parties in rentals, costs, charges, additional rentals, and reimbursements, connection with the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term terms of this Lease over the then reasonable rental value shall be construed to waive or lessen Landlord’s right to insist upon strict performance of the Premises for the remainder of the term terms of this Lease, or (B) the rents and other charges which without a written notice thereof to Tenant from Landlord.
Section 13.5 The rights granted to Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election in this Article 13 shall be made by Landlord by serving written notice upon Tenant cumulative of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one every other right or more of the rights and remedies remedy provided in this Lease shall not prevent or which Landlord may otherwise have at law or in equity or by statute and the subsequent exercise by Landlord of any one or more rights or remedies shall not constitute an election of remedies, prejudice or impair the concurrent or subsequent exercise of other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to Landlord by reason of any Event of Default under this Lease. Tenant agrees to pay to Landlord all costs and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act expenses incurred by Landlord with respect to in the Premises shall terminate enforcement of this Lease, including, but not limited to, acceptance including all attorneys’ fees incurred in connection with the collection of any sums due hereunder or the keys, institution enforcement of an action for detainer any right or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting remedy of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a an event of default under and breach of this Lease (“Default”) by Tenant hereunder:
(an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental, Additional Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision sum of money payable under this LeaseLease when due, if such failure continues for five (5) days after written notice to Tenant of such failure; provided, however, following the first three (3) such failures during any consecutive twelve (12) month period during the Lease Term, then Tenant’s subsequent failure to pay any installment of Base Rental, Additional Rental or any other sum of money when due during said twelve (12) month period shall continue for constitute an immediate Default hereunder without any notice or cure period;
(ii) Tenant’s interest in the Lease or the Premises shall be subjected to any attachment, levy, or sale pursuant to any order or decree entered against Tenant in any legal proceeding and such order or decree shall not be vacated within thirty (30) days after of entry thereof;
(iii) Tenant breaches or fails to comply with any other term, provision, condition, or covenant of this Lease, including, without limitation, any of the Rules and Regulations in Exhibit D, as the same may hereafter be amended from time to time, and such breach or failure shall continue for more than thirty (30) days subsequent to the date of receipt by Tenant of written notice thereof of such breach or failure from Landlord to TenantLandlord; provided that such thirty (30) -day period shall be extended for the time reasonably required to complete such cure, cure if such failure cannot reasonably be cured within said thirty (30) -day period and Tenant commences to cure such failure within said thirty (30) -day period and thereafter diligently and continuously proceeds to cure such failure (not to exceed a commercially reasonable time period for curing such breach or failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution); or
xi(iv) Tenant, if a corporation, joint venture, partnership, limited partnership or trust, without Landlord’s repeated failure to observe prior written consent and the written assumption of this Lease by another party approved by Landlord, both in Landlord’s discretion, shall be dissolved or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsits entity status otherwise terminated.
b. (b) Upon the occurrence of an Event of a Default, but subject to all applicable laws, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by at law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter reenter the Premises and perform, correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this LeaseLease or of the Rules and Regulations now in effect or hereafter adopted, and Tenant shall fully reimburse and compensate LandlordLandlord on demand for all costs and expenses incurred by Landlord in such performance, for Landlord’s actual cost incurredcorrection or repairing, on demandincluding accrued interest as provided in the next sentence. All sums so expended to cure Default shall accrue interest from the date of demand until date of payment at a rate of interest which is the lower of (x) a per annum rate equal to the Prime Rate plus two percent (2%), or (y) twelve percent (12%) per annum, but in no event at a rate higher than that permitted by applicable law.
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter reenter and take possession of the Premises. Any such demand, reentry and taking possession of the Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter thereafter reenter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry reentry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem reasonably necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such relettingreletting including, but not limited to, the cost of any such alterations and repairs to the Premises, reasonable attorneys’ fees actually incurred, and reasonable brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon . Upon such termination Landlord shall have the right to recover from Tenant all damages Landlord may suffer by reason of such termination includingTenant, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursementsas liquidated damages, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either following:
(A) an amount equal to the excessworth, if anyat the time of the award, of the total amount unpaid rent that has been earned at the time of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term termination of this Lease, or ; and
(B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and mayworth, at the election time of Landlordthe award, be exercised alternativelyof the amount by which the unpaid rent that would have been earned after the date of termination of this Lease until the time of the award exceeds the amount of rent that could have been reasonably obtained by Landlord using reasonable diligence to relet the Premises; and
(C) the worth, successivelyat the time of the award, of the amount by which the unpaid rent for the balance of the Lease Term (or the then current extension period) after the time of the award (but in no event exceeding five years) exceeds the amount of rent that could have been reasonably obtained by Landlord using reasonable diligence to relet the Premises; and
(D) any other manner amount and are in addition court costs reasonably necessary to any other rights provided compensate Landlord for or allowed all detriment directly caused by law or in equity.
vii) No act by Landlord with respect Tenant’s failure to the Premises shall terminate perform its obligations under this Lease, including, but not limited to, acceptance of . The following words and phrases as used in this Section 8.1(b)(v) shall have the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.following meanings:
Appears in 1 contract
Sources: Office Lease (Connecture Inc)
Default and Remedies. a. 11.1 The occurrence following events (any one or more of any them) shall be deemed to be "Events of the following shall constitute a default under and breach of this Lease Default" by Tenant (an “Event of Default”):under this Lease:
i) Failure by 11.1.1 Tenant shall fail to pay any monetary Rent, additional Rent, or any monthly payment, or any other cost, sum, expense, charge or amounts (including Base Rental and Additional Rental"Payments") due hereunder within to Landlord as herein provided, and such failure shall continue for a period of ten (10) days following written notice of non-after any such Payments are due.
11.1.2 Tenant shall fail to make any payment from Landlord to Tenant;
ii) Abandonment of third parties as required by the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision terms of this Lease, if or shall fail to comply with any other term, provision or covenant of this Lease [other than the payment of the Payments referred to in Article 11.1.1 above] and shall not cure such failure shall continue for within thirty (30) days after written notice thereof from Landlord to Tenant; provided that . The Tenant shall not be considered in default under this Lease if such curative action cannot be completed within such thirty (30) day period shall be extended for period, and Tenant has commenced efforts to cure the time reasonably required to complete same within such cure, if such failure cannot reasonably be cured within said thirty (30) day period and is diligently pursuing the cure of such default.
11.1.3 Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenantshall become insolvent, or the filing or creation shall make a transfer in fraud of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they maturecreditors, or makes shall make an assignment for the benefit of creditors.
11.1.4 Tenant shall file a petition under any section or chapter of the Bankruptcy Code, as amended, or applies under any similar law or statute of the United States or any State thereof; or Tenant shall be adjudged bankrupt or insolvent in proceedings filed against Tenant.
11.1.5 A receiver or Trustee shall be appointed for all of the Premises or consents to the appointment of a trustee or receiver for all or substantially all of the assets of Tenant under this Lease.
11.1.6 Tenant shall do or permit to be done anything which creates a major part lien upon the Premises.
11.1.7 The business operated by Tenant shall be closed for failure to pay any State sales tax as required, for violation of its property;law, or for any other reason.
ix) A trustee 11.1.8 The vacating or receiver is appointed abandonment of the Premises by Tenant.
11.1.9 The making by Tenant it of any general assignment, or general arrangement for Tenantthe benefit of creditors.
11.1.10 The attachment, any guarantor execution, or other judicial seizure of substantially all of Tenant’s obligations under 's assets located at the Premises or of Tenant's interest in this Lease or for a major part of either party’s property and Lease, where such seizure is not discharged within sixty thirty (6030) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsdays.
b. 11.2 Upon the occurrence of an Event any one or more of such Events of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform pursue any one or more of the following in addition toremedies, and not in limitation of, or any other remedy set forth in this Lease or right otherwise permitted it by law law, or in equity equity, without any notice or demand whatsoever (except as expressly required by the terms of this Lease:):
i) 11.2.1 Terminate this Lease in which event Tenant shall immediately surrender the Premises to Landlord, with and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in rental, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefor.
11.2.2 Terminate Tenant's right of possession, without terminating this Lease, may immediately or at any time thereafter re-and enter upon and take possession of the Premises and correct expel or repair remove Tenant and any condition which shall constitute a failure on Tenant’s other person who may be occupying the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages therefor.
11.2.3 Enter upon the Premises by force if necessary without being liable for prosecution or any claim for damages therefor, and do whatever Tenant is obligated to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation do under the terms of this Lease, and Tenant shall fully agrees to reimburse and compensate Landlord, Landlord on demand for Landlord’s actual cost incurred, on demand.
ii) Landlord, any expenses which Landlord may incur in thus affecting compliance with or without terminating Tenant's obligations under this Lease, may immediately or at and Tenant further agrees that Landlord shall not be liable for any time thereafter demand in writing that damages resulting to the Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent from such action.
11.2.4 The remedies stated herein for an Event of Tenant within ten (10) days of receipt Default by Tenant of such notice from Landlordare not exclusive, whereupon and Landlord shall have the right to re-enter and take possession pursue any one or more of the Premises.
iii) Landlord, with remedies stated above or without terminating this Lease, may immediately any other remedy provided by law or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenantin equity. Any such re-entry and removal Forbearance by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease to enforce one or more of the Premises by Tenant and shall not remedies herein provided upon an Event of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant Default shall not be entitled deemed or construed to receive any excess constitute a waiver of any such rents collected over the rents reserved hereindefault.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise 11.3 Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the rights Premises, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and remedies provided in Tenant.
11.4 In the event Tenant fails or refuses to make timely and punctual payment of any Rent, additional Rent or other sums payable or charges due under this Lease as and when the same shall become due and payable, or in the event of any breach of any of the terms or provisions of this Lease by Tenant, in addition to the other remedies available to Landlord, Landlord at their option, shall be entitled, and is hereby authorized, without any notice to Tenant whatsoever, to enter into and upon the Premises by any peaceable means, and to change, alter and/or modify the door locks on all entry doors of the Premises, permanently excluding Tenant and its officers, principals, agents, employees, representatives and invitees therefrom. In the event that Landlord has either permanently repossessed the Premises as aforesaid or has elected to terminate this Lease by reason of Tenant's default, Landlord shall not prevent thereafter be obligated to provide Tenant with a key to the subsequent exercise by Landlord Premises at any time, regardless of any one or more amounts subsequently paid by Tenant; provided, however, that in any such instance, during Landlord's normal business hours and at the convenience of the other rights Landlord, and remedies herein provided. All remedies provided for in this Lease are cumulative upon receipt of a written request from Tenant accompanied by such written waivers and releases as Landlord may require, Landlord may, at the election of Landlordtheir option, be exercised alternatively, successively, (a) escort Tenant or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect its authorized representative to the Premises to retrieve any personal belongings or other property of Tenant not subject to the Landlord's lien or security interest described herein, or (b) obtain a list from Tenant of such personal property Tenant intends to remove, whereupon Landlord shall terminate this Leaseremove such property and make it available to Tenant at a time and place designated by Landlord. In the event Landlord elects option (b) above, Tenant shall pay, in cash and in advance, all costs and expenses estimated by Landlord to be incurred in removing such property and making it available to Tenant, including, but not limited to, acceptance all moving and/or storage charges theretofore incurred by Landlord with respect to such property. If Landlord elects to exclude Tenant from the Premises without permanently repossessing the Premises or terminating this Lease pursuant to the foregoing, then Landlord shall not be obligated to permit Tenant entry into the Premises or provide Tenant with a key to re-enter the Premises until such time as all delinquent Rent and other sums, including interest and late charges thereon, if any, due under this Lease have been fully paid, and all other defaults, if any, have been completely and timely cured to Landlord's satisfaction (if such cure occurs prior to actual permanent repossession or termination), and Landlord has been given assurances by Tenant reasonably satisfactory to Landlord evidencing Tenant's ability to satisfy its remaining obligations under this Lease. Landlord's remedies hereunder shall be in addition to, and not in lieu of, any of its other remedies set forth in this Lease, or otherwise available to Landlord at law or in equity. It is intended that this paragraph, and the provisions herein contained, shall supersede and be paramount to any conflicting provisions of the keysTexas Property Code, institution as well as any successor statute governing the rights of landlords to change locks of commercial tenants.
11.5 In the event Landlord elects to terminate this Lease by reason of an Event of Default, then notwithstanding such termination, Tenant shall be liable for and shall pay to Landlord, at the address specified for notice to Landlord herein the sum of all Rent and other indebtedness accrued to date of such termination, plus an amount equal to the difference between (a) the total Rent due plus any other payment required to be made by Tenant hereunder for the remaining portion of the Lease Term (had such Term not been terminated by Landlord prior to the date of expiration stated in Article 2), and (b) the then present value of the then fair rental value of the Premises for such period.
11.6 In the event that Landlord elects to repossess the Premises without terminat ing this Lease, then Tenant shall be liable for and shall pay to Landlord at the address specified for notice to Landlord herein all Rent and other indebtedness accrued to the date of such repossession, plus Rent required to be paid by Tenant to Landlord during the remainder of the Lease Term until the date of expiration of the Term as stated in Article 2 hereof, diminished by any net sums thereafter received by Landlord through reletting the Premises during said period (after deducting expenses incurred by Landlord as provided in this Article 11 hereof). In no event shall Tenant be entitled to any excess of any rental obtained by reletting over and above the rental herein reserved. Actions to collect amounts due by Tenant to Landlord as provided in this Article 11 may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of the Lease Term.
11.7 In case of any Event of Default or breach by Tenant, Tenant shall also be liable for and shall pay to Landlord, at the address specified for notice to Landlord herein, in addition to any sum provided to be paid above, broker's fees incurred by Landlord in connection with reletting the whole or any part of the Premises; the costs of removing and storing Tenant's or other occupant's property; the costs of repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Landlord in enforcing or defending Landlord's rights and/or remedies hereunder including reasonable attorneys' fees incurred by Landlord.
11.8 In the event of termination or repossession of the Premises for an Event of Default, Landlord shall not have any obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental after reletting; and in the event of reletting, Landlord may relet the whole or any portion of the Premises for any period, for any rental, to any tenant, and for any use and purpose, which Landlord may desire.
11.9 If Tenant should fail to make any payment or cure any default hereunder within the time expressly permitted herein, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the account of Tenant (and enter the Premises for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees, to pay Landlord, upon demand, all costs, expenses and disbursements (including reasonable attorneys' fees) incurred by Landlord in taking such remedial action.
11.10 In the event of any default by Landlord, Tenant's exclusive remedy shall be an action for detainer or other dispossessory proceedingsdamages (Tenant hereby waiving the benefit of any laws granting it a lien upon the property of Landlord, it being understood that and/or upon Rent due Landlord), but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have thirty (30) days in which to cure any default; provided, however, Landlord shall not be considered in default under this Lease may only if such curative action cannot be terminated by express written notice from Landlord to Tenantcompleted within such thirty (30) day period, and any reletting Landlord has commenced efforts to cure within such period and is diligently pursuing the cure of such default. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its ownership of the Premises shall be presumed to be for and on behalf of TenantPremises, and not thereafter, provided that in the event of a transfer (excepting an involuntary transfer such as a foreclosure) such transferee of Landlord, unless Landlord expressly provides otherwise in writing 's ownership interest has assumed all of Landlord's obligations hereunder and that notice has been given to TenantTenant pursuant to Section 10.3.
Appears in 1 contract
Default and Remedies. a. The occurrence of any (a) Each of the following shall constitute a default by the Grantee under and breach of this Lease by Tenant Agreement:
(an “Event of Default”):
i) Failure by Tenant to pay perform or observe any monetary amounts obligation or covenant of the Grantee contained herein to the reasonable satisfaction of ESD and within the time frames established therefor under this Agreement.
(including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment Failure to comply with any request for information reasonably made by ESD to determine compliance by the Grantee with the terms of this Agreement or otherwise reasonably requested by ESD in connection with the Premises Grant.
(defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure The making by Tenant the Grantee of any false statement or the omission by the Grantee to observe state any material fact in or perform any of in connection with this Agreement or the covenants in respect of assignment and subletting of this Lease;Grant.
(iv) Failure A default beyond any applicable grace period by Tenant to cure forthwiththe Grantee, immediately after receipt of notice from Landlordor any entity which Grantee directly or indirectly controls, is controlled by, or is under common control with, under any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;other agreement with ESD.
(v) Failure by Tenant to completethe Grantee, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthstime, to comply with Section 7 of this Agreement.
b. (b) Upon the serving of notice to the Grantee of the occurrence of an Event a default (which notice shall specify the nature of Defaultthe default), Landlord agrees to use reasonable efforts to mitigate its damages, but ESD shall have the option right to do and perform any one terminate this Agreement, provided that if the default is pursuant to paragraph 9(a)(i) or more of the following in addition to9(a)(ii), and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which no default shall constitute a failure on Tenant’s part be deemed to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant have occurred if Grantee cures such default within ten (10) days of receipt by Tenant of such notice from LandlordESD or, whereupon Landlord if the default cannot reasonably be cured within such ten- day period, Grantee commences to cure such default within the ten-day cure period and cures the default within ninety (90) days thereafter, provided further that ESD shall have the right not be obligated to re-enter and take possession of the Premisesmake any disbursements during any such cure period.
iii(c) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any Upon such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) LandlordAgreement, with ESD shall withhold any Grant proceeds not yet disbursed and may require repayment of Grant proceeds already disbursed. If ESD determines that any Grant proceeds had previously been released based upon fraudulent representations or without terminating this Leaseother willful misconduct, ESD may immediately or at any time thereafter relet require repayment of those funds and may refer the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs matter to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant appropriate authorities for prosecution. ESD shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive exercise any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All seek any other remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equitylaw.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Grant Agreement
Default and Remedies. a. The occurrence following events shall be deemed to be events of any of the following shall constitute a default under and breach of this Lease by Tenant under this Lease: (an “Event of Default”):
i) Failure by Tenant shall fail to pay any monetary amounts (including installment of Base Rental and Monthly Rental, Additional Rental) due hereunder Rent or any other charge or assessment against Tenant pursuant to the terms hereof within ten (10) days following written after notice of non-payment from Landlord thereof to Tenant;
; (ii) Abandonment Tenant shall fail to comply with any term, provision, covenant or warranty made under this Lease by Tenant, other than the payment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe Base Monthly Rental or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created additional rent or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenantcharge or assessment payable by Tenant, agreement, condition or provision of this Lease, if and shall not cure such failure shall continue for within thirty (30) days after written notice thereof from Landlord to Tenant; provided Tenant except that if such matter, by its nature, requires more than thirty (30) day period business days to cure, then Tenant shall be extended for the entitled to additional time reasonably required (but not to complete such cure, if such failure cannot reasonably be cured within said thirty exceed an additional forty-five (3045) day period and business days) provided Tenant commences such cure promptly and diligently pursues such cure to cure completion in all events within such failure within said thirty additional forty-five (3045) business day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty period; (30) days from the date of such filing;
viiiiii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent shall make a general assignment for the benefit of creditors, or bankrupt or admits shall admit in writing its inability to pay its debts as they maturebecome due, or makes an assignment for the benefit of creditorsshall file a petition in bankruptcy, or applies for shall be adjudicated as bankrupt or consents to the appointment of insolvent, or shall file a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, petition in any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, proceeding seeking any reorganization, arrangement, insolvency composition, readjustment, liquidation, dissolution or liquidation proceeding, or other proceeding for similar relief under any bankruptcy present or future statute, law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Leaseregulation, or shall file an answer admitting or fail timely to contest the material allegations of a petition filed against it in any such proceeding; (Biv) a proceeding is commenced against Tenant or any guarantor of Tenant’s obligations under this Lease seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, and is allowed against it or is consented to by it or is such proceeding shall not have been dismissed within sixty (60) business days after such institutionthe commencement thereof; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately a receiver or at any time thereafter terminate this Lease, and this Lease trustee shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.appointed for
Appears in 1 contract
Default and Remedies. a. (a) The occurrence following events shall be deemed to be defaults or events of any of the following shall constitute a default under and breach of this Lease by Tenant under this Lease:
(an “Event of Default”):
i) Failure Tenant shall fail to pay when due any installment of rent or any other sum of money payable by Tenant to pay any monetary amounts (including Base Rental Landlord and Additional Rental) due hereunder within such failure shall continue for a period of ten (10) days following written notice of non-payment thereof from Landlord to Tenant;, provided, Landlord shall not be required to deliver to Tenant more than two (2) such notices in any calendar year.
(ii) Abandonment of the Premises (defined as Tenant shall fail to comply with any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe term, provision, or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision covenant of this Lease, if other than the payment of rent, and shall not cure such failure shall continue for within thirty (30) days after written notice thereof from Landlord to TenantTenant of the occurrence of such failure; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such curehowever, if such failure cannot reasonably be cured within said thirty (such 30) -day period and Tenant commences to cure such failure within said thirty (30) such 0-day period and thereafter diligently and continuously proceeds pursues such cure to cure completion, then such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien failure shall not be released a default or discharged within thirty (30) days from the date an event of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and default unless it is not discharged fully cured within an additional sixty (60) days after such appointment;following the expiration of the 30-day period.
x(iii) Any bankruptcypetition shall be filed by or against Tenant under the United States Bankruptcy Code, reorganization, arrangement, insolvency or liquidation proceedingas amended, or other proceeding for relief under any bankruptcy similar law or similar law for statute of the relief of debtors, is instituted (A) by Tenant United States or any guarantor of Tenant’s obligations under this Leasestate thereof, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is such petition shall not be dismissed within sixty (60) days after such institution; orof filing, or Tenant shall be adjudged bankrupt or insolvent in any proceedings filed thereunder.
xi(iv) Tenant’s repeated failure to observe A receiver or perform any trustee shall be appointed for all or substantially all of the other covenantsassets of Tenant, terms and such appointment shall not be vacated or conditions hereof more than three otherwise terminated, and the action in which such appointment was ordered dismissed, within sixty (360) times, in the aggregate, in any period days of twelve (12) consecutive monthsfiling.
b. Upon (v) Tenant shall make a general assignment for the occurrence benefit of an Event creditors.
(vi) Tenant shall fail to take possession of Defaultor shall desert, abandon or vacate the Premises.
(b) If any default or event of default shall have occurred, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option right at its election, then or any time thereafter while such default or event of default shall continue, to do and perform pursue any one or more of the following remedies:
(i) Terminate this Lease by giving notice thereof to Tenant, in addition towhich event Tenant shall immediately surrender the Premises to Landlord and if Tenant fails to do so, and not in limitation of, Landlord may without prejudice to any other remedy which it may have for possession or right permitted it arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying said Premises, or any part thereof, without being liable for prosecution or any claim of damages therefor and Tenant hereby agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by law reason of such termination, whether through inability to relet the Premises on satisfactory terms or otherwise, specifically including but not limited to (1) all reasonable expenses necessary to relet the Premises which shall include the cost of renovating, repairing, and altering the Premises for a new tenant or tenants, and all leasing costs associated therewith; and (2) any increase in equity insurance premiums caused by the vacancy of the Premises.
(ii) Enter upon and take possession of the Premises and expel or by remove Tenant or any other person who may be occupying said Premises, or any part thereof, without terminating this Lease:. Landlord may (but shall be under no obligation to) relet the Premises or any part thereof for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant for such term or terms and on such conditions and for such uses as Landlord in its absolute discretion may determine and Landlord may collect and receive any rents payable by reason of such reletting; and Tenant agrees to pay Landlord on demand all reasonable expenses necessary to relet the Premises which shall include the cost of renovating, repairing, and altering the Premises for a new tenant or tenants and all leasing costs associated therewith and Tenant further agrees to pay Landlord on demand any deficiency that may arise by reason of such reletting. Landlord shall not be responsible or liable for any failure to relet the Premises or any part thereof or for any failure to collect any rent due upon any such reletting. No such re-entry or taking of possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such termination is given to Tenant pursuant to subparagraph (b)(i) above.
i(iii) LandlordNo repossession or re-entering on the Premises or any part thereof pursuant to subparagraphs (b)(i) and (ii) above or otherwise and no reletting of the Premises or any part thereof pursuant to subparagraph (b)(ii) shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such repossession or re-entering, except if the Premises are re-let, Tenant shall only be responsible for the difference in rent if the Premise are re-let at a lower rental rate, and Tenant shall have no indemnity obligations related to the use of the Premises by the new tenant.
(iv) In the event Landlord elects to re-enter or take possession of the Premises after Tenant's default, with or without terminating this Lease, Landlord may immediately change locks or at any time thereafter re-enter the Premises alter security devices and correct lock out, expel or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and any other person who may be occupying all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or any part of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlordwithout being liable for any claim for damages.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and Nothing contained in this Lease shall be deemed construed as imposing any enforceable duty upon Landlord to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination relet the Premises and Landlord shall recover from Tenant all have no duty to mitigate or minimize Landlord's damages by virtue of Tenant's default.
(vi) No right or remedy herein conferred upon Landlord may suffer by reason is intended to be exclusive of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentalsany other right or remedy, and reimbursements, the cost (including court costs each and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have every right and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election remedy shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for right or allowed by remedy given hereunder or now or hereafter existing at law or in equityequity or by statute.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Contribution and Purchase Agreement (United Surgical Partners International Inc)
Default and Remedies. a. The occurrence of any (a) In the event that ▇▇▇▇▇ fails to make payment of the following shall constitute Rights Fee when due, and such failure continues for a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty fifteen (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (2015) days after written notice to ▇▇▇▇▇, or in the initial written demand for same event ▇▇▇▇▇ fails to Tenant;
vi) Failure by Tenant to observe or perform comply with any other non-monetary covenant, agreement, condition or provision obligation of this Lease, if ▇▇▇▇▇ herein contained and such failure shall continue continues for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided that ▇▇▇▇▇, the SCHOOL BOARD shall be entitled to exercise any or all of the following remedies:
(i) To cause the Term to end on a date designated in such notice, which date may not be less than thirty (30) day days after the date of such notice; or
(ii) To seek an appropriate legal or equitable remedy from a court of competent jurisdiction.
(b) The following shall constitute a “SCHOOL BOARD Default” hereunder:
(i) If the SCHOOL BOARD shall fail to comply with any of its material obligations under this Agreement, which failure shall continue for a period shall be extended for the time reasonably required of thirty (30) days after notice thereof to complete such cureSCHOOL BOARD from ▇▇▇▇▇; provided, however, if such failure canis not reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged curable within thirty (30) days from the date days, SCHOOL BOARD shall be afforded a reasonable period of time to cure or remedy such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits failure so long as SCHOOL BOARD in writing its inability good faith is attempting, at all reasonable times during such period, to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after cure such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institutionfailure; or
xi(ii) Tenant’s repeated failure to observe or perform any If SCHOOL BOARD shall utilize, as the name of the Athletic Complex, any name other covenants, terms or conditions hereof more than three (3) times, in “▇▇▇▇▇ Federal Credit Union Athletic Complex” without the aggregate, in any period express written of twelve (12) consecutive months.
b. ▇▇▇▇▇. Upon the occurrence of an Event of a SCHOOL BOARD Default, Landlord agrees to use reasonable efforts to mitigate its damages, but ▇▇▇▇▇ shall have the option right to do and perform any one or more of the following remedies: (1) to terminate this Agreement, (2) to receive a refund of the Rights Fee for any time in addition towhich SCHOOL BOARD Default occurred and continued to occur without an attempt by the SCHOOL BOARD to cure, and (3) to seek an appropriate legal or equitable remedy from a court of competent jurisdiction. Notwithstanding the foregoing, the SCHOOL BOARD’s failure to comply with the requirements set forth in the Term Sheet and Section 3 hereof on any one occasion shall not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part SCHOOL BOARD Default if the SCHOOL BOARD has substantially complied with the terms hereof and has used good faith efforts to keep, observe, perform, satisfy, or abide ensure compliance by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to personnel, teachers or placed on the Premises by, at the direction of, or with consent staff of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord▇▇▇▇▇ High School.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Naming Rights Agreement
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
(i) Failure by Tenant to pay any monetary amounts rental or additional rental (including Base Rental and Additional Rentalwithout limitation Tenant’s Prorata Share Percentage of CAM Expenses) due hereunder within ten five (105) days following written notice of non-payment from Landlord to Tenantafter the same is due;
(ii) Any failure by Tenant to obtain insurance as required herein;
(iii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii(iv) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Leasesubletting;
iv(v) Failure by Tenant to cure forthwith, immediately after receiving thirty (30) days written receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted to exist in violation of law or of this Lease;.
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
(vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
(viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its an inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
(ix) A trustee or receiver is appointed for Tenant, any guarantor of for Tenant’s obligations under this Lease interest in the Premises or for a major part of either party’s the property of Tenant and is not discharged within sixty (60) days after such appointment;; or
(x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it Tenant or is consented to by it Tenant or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. (b) Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, satisfy or abide by any term, condition, covenant, agreement, agreement or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom there from all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom there from Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such relettingreletting including but not limited to the cost of any such alterations and repairs to the Premises, attorneys’ fees, leasing inducements and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, charges and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, both figures being discounted to present value using a discount rate equal to the yield of direct obligations of the United States of America having a maturity closest to the expiration of the then current term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection subparagraph (iv) if the Lease were not terminated, payable in the manner contemplated in subparagraph (iv). Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
(vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, successively or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
(vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. Section 13.1 The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
iDefault (herein so called) Failure by of Tenant under this Lease: (a) if Tenant fails to pay any monetary amounts Rent hereunder as and when such Rent becomes due and such failure shall continue for more than five (including Base Rental 5) days after Landlord gives Tenant notice of past due Rent; (b) if Tenant fails to pay Rent on time more than twice in any period of twelve (12) months, notwithstanding that such payments have been made within the applicable cure period; (c) if the Premises become vacant, deserted, or abandoned for more than ten (10) consecutive days or if Tenant fails to take possession of the Premises on the Commencement Date or promptly thereafter; (d) if Tenant permits to be done anything which creates a lien upon the Premises and Additional Rentalfails to discharge or bond such lien or post such security with Landlord as is required by Article 11; (e) due hereunder within if Tenant violates the provisions of Article 8 by attempting to make an unpermitted assignment or sublease; (f) if Tenant fails to maintain in force all policies of insurance required by this Lease and such failure shall continue for more than ten (10) days following written after Landlord gives Tenant notice of non-payment from Landlord to Tenant;
iisuch failure; (g) Abandonment if any petition is filed by or against Tenant or any guarantor of this Lease under any present or future section or chapter of the Premises Bankruptcy Code, or under any similar law or statute of the United States or any state thereof (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business which, in the Premisescase of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of commencement);
iii, or if any order for relief shall be entered against Tenant or any guarantor of this Lease in any such proceedings; (h) Failure by if Tenant to observe or perform any guarantor of this Lease becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors; (i) if a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the covenants in respect assets of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision guarantor of this Lease, which appointment is not vacated within sixty (60) days following the date of such appointment; (j) if Tenant fails to originally post or thereafter restore the Security Deposit as required pursuant to Article 20 hereof; or (k) if Tenant fails to perform or observe any other terms of this Lease and such failure shall continue for more than thirty (30) days after written Landlord gives Tenant notice thereof from Landlord to Tenant; provided that of such failure, or, if such failure cannot be corrected within such thirty (30) day period shall be extended for the time reasonably required to complete such cureperiod, if Tenant does not commence to correct such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure default within said thirty (30) day period and thereafter diligently prosecute the correction of same to completion within a reasonable time and continuously proceeds in any event prior to cure the time a failure to complete such failure;
vii) The levy upon execution correction could cause Landlord to be subject to prosecution for violation of any law, rule, ordinance or the attachment by legal process of the leasehold interest of Tenantregulation or causes, or the filing could cause, a default under any mortgage, underlying lease, tenant leases or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents other agreements applicable to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsProject.
b. Section 13.2 Upon the occurrence of an any Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option right, at Landlord’s option, to elect to do and perform any one or more of the following in addition towithout further notice or demand to Tenant, and not in limitation of, Tenant hereby expressly waiving the requirement of service of any other remedy statutory notice or right permitted it by law or in equity or by this Lease:
idemand as a condition precedent to Landlord’s exercising any of the following rights: (a) Landlord, with or without terminating terminate this Lease, may in which event Tenant shall immediately or at any time thereafter re-enter surrender the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurredand, on demand.
ii) Landlordif Tenant fails to so surrender, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right right, without notice or demand, to re-enter upon and take possession of the Premises.
iiiPremises and to expel or remove Tenant and its effects without being liable for prosecution or any claim for damages therefor; and Tenant shall, and hereby agrees to, indemnify Landlord for all loss and damage which Landlord suffers by reason of such termination, including damages in an amount equal to the total of (1) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the costs of recovering the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal other expenses incurred by Landlord shall not in connection with Tenant’s default; (2) the unpaid Rent earned as of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of termination, plus interest at the Premises, and thereafter Tenant shall pay monthly during Interest Rate; (3) the total Rent which Landlord would have received under this Lease for the remainder of the term Term, but discounted to the then present value at a rate of eight percent (8%) per annum, minus the fair market rental value on a net basis of the balance of the Term as of the time of such default, discounted to the then present value at a rate of eight percent (8%) per annum (but in no event shall the result thereof be less than zero for the purposes of this Section); and (4) all other sums of money and damages owing by Tenant to Landlord; or (b) enter upon and take possession of the Premises without terminating this Lease the differenceand without being liable to prosecution or any claim for damages therefor, and, if anyLandlord elects, between relet the rent Premises on such terms as Landlord deems advisable, in which event Tenant shall pay to Landlord on demand the cost of repossession, renovating, repairing and other charges collected from any such subsequent altering the Premises for a new tenant or tenants and any deficiency between the Rent payable hereunder and the rent and other charges reserved in this Leasepaid under such reletting; provided, but however, that Tenant shall not be entitled to receive any excess of payments received by Landlord from such reletting. Landlord’s failure to relet the Premises shall not release or affect Tenant’s liability for Rent or for damages; or (c) enter the Premises without terminating this Lease and without being liable for prosecution or any such rents collected over claim for damages therefor and maintain the rents reserved herein.
v) Premises and repair or replace any damage thereto or do anything for which Tenant is responsible hereunder. Tenant shall reimburse Landlord may immediately or at upon demand for any time thereafter terminate reasonable expenses which Landlord incurs in thus effecting Tenant’s compliance under this Lease, and Landlord shall not be liable to Tenant for any damages with respect thereto.
Section 13.3 No agreement to accept a surrender of the Premises and no act or omission by Landlord or Landlord’s agents during the Term shall constitute an acceptance or surrender of the Premises unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant. No provision of this Lease shall be construed as an obligation upon Landlord to mitigate Landlord’s damages under the Lease, except to the extent required by law.
Section 13.4 No provision of this Lease shall be deemed to have been terminated upon receipt waived by Tenant Landlord unless such waiver is in writing and signed by Landlord. Landlord’s acceptance of written notice Rent following an Event of Default hereunder shall not be construed as a waiver of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord Event of Default. No custom or practice which may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages grow up between the parties in rentals, costs, charges, additional rentals, and reimbursements, connection with the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term terms of this Lease over the then reasonable rental value shall be construed to waive or lessen Landlord’s right to insist upon strict performance of the Premises for the remainder of the term terms of this Lease, or (B) the rents and other charges which without a written notice thereof to Tenant from Landlord.
Section 13.5 The rights granted to Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election in this Article 13 shall be made by Landlord by serving written notice upon Tenant cumulative of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one every other right or more of the rights and remedies remedy provided in this Lease shall not prevent or which Landlord may otherwise have at law or in equity or by statute, and the subsequent exercise by Landlord of any one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of the other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to Landlord by reason of any Event of Default under this Lease. Tenant agrees to pay to Landlord all costs and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act expenses incurred by Landlord in connection with respect to an Event of Default and the Premises shall terminate enforcement of this Lease, including, but not limited to, acceptance including all attorneys’ fees incurred in connection with the collection of any sums due hereunder or the keys, institution enforcement of an action for detainer any right or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting remedy of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement (Advanced Life Sciences Holdings, Inc.)
Default and Remedies. a. (a) The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “"Event of Default”):
" of Tenant under this Lease: (i) Failure by if Tenant fails to pay Base Rent or any monetary amounts (including Base Rental Additional Rent hereunder as and Additional Rental) when such rent becomes due hereunder within and such failure continues for ten (10) calendar days following written notice of non-payment from Landlord to Tenant;
after said due date; (ii) Abandonment of if Tenant permits anything which creates a lien upon the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant fails to observe discharge, bond such lien or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant post security with Landlord acceptable to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant Landlord within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after receipt by Tenant of written notice thereof; (iii) if Tenant fails to maintain in force all policies of insurance required by this Lease; (iv) if any petition is filed by or against Tenant under any present or future section or chapter of the Bankruptcy Code, or under any similar law or statute of the United States or any state thereof from (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of commencement), or if any order for relief shall be entered against Tenant in any such proceedings; (v) if Tenant becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors; (vi) if a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the assets of Tenant, which appointment is not vacated within sixty (60) days following the date of such appointment; or (vii) if Tenant fails to perform or observe any term of this Lease not otherwise specified in this Section 18(a) and such failure shall continue for more than thirty (30) days after Landlord to Tenantgives Tenant notice of such failure; provided provided, however, that if such breach or failure cannot reasonably be cured within such thirty (30) day period, such thirty (30) day period shall be extended for the time reasonably required to complete until such cure, if such failure cannot reasonably be cured within said thirty cure is
(30b) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an any Event of Default, Landlord agrees to use reasonable efforts to mitigate its damagesmay, but shall have the option to do and perform at Landlord's option, without any one demand or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
notice whatsoever: (i) LandlordTerminate this Lease by giving Tenant notice of termination, with or without terminating in which event this Lease, may immediately or at any time thereafter re-enter Lease shall expire and terminate on the date specified in such notice of termination and all rights of Tenant under this Lease and in and to the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part terminate. Tenant shall remain liable for all obligations under this Lease arising up to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation the date of this Leasesuch termination, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, surrender the Premises to Landlord on demand.
the date specified in such notice; or (ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of Terminate this Lease or of the Premises by Tenant as provided in clause (i) above and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all actual damages Landlord may suffer incur by reason of such termination Tenant's default, including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction a sum which, at the date of tenant improvementssuch termination, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, represents the cost (including court costs and attorneys’ fees) value of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of (A) the total amount of Base Rent, Additional Rent and all rents and other charges to be paid sums which would have been payable hereunder by Tenant for the remainder period commencing with the day following the date of such termination and ending with the term of Expiration Date had this Lease not been terminated, over (B) the then aggregate reasonable rental value of the Premises for the remainder period commencing with the day following the date of such termination and ending with the Expiration Date had this Lease not been terminated, plus (C) the costs of recovering possession of the term of this Lease, or (B) the rents Premises and all other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made expenses incurred by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition due to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this LeaseTenant's default, including, but not limited towithout limitation, acceptance reasonable attorney's fees, plus (D) the unpaid Base Rent and Additional Rent earned as of the keysdate of termination plus any interest and late fees due hereunder, institution plus other sums of an action for detainer money and damages owing on the date of termination by Tenant to Landlord under this Lease or other dispossessory proceedingsin connection with the Premises, all of which excess sum shall be deemed immediately due and payable; provided, however, that such payments shall not be deemed a penalty but shall merely constitute payment of liquidated damages, it being understood and acknowledged by Landlord and Tenant that actual damages to Landlord are extremely difficult, if not impossible, to ascertain; or (iii) Without terminating this Lease may only be terminated by express written notice Lease, Landlord may, in accordance with applicable law, dispossess Tenant from Landlord the Premises pursuant to Tenant, any available judicial proceeding and any reletting thereupon enter into and upon and take possession of the Premises or any part thereof. Any property then remaining in the Premises may be removed and stored in a warehouse or elsewhere at the cost of, and for the account of Tenant without Landlord becoming liable for any loss or damage which may be occasioned thereby unless caused by Landlord's gross negligence or willful misconduct. Thereafter, Landlord may, but shall not be obligated to, lease to a third party the Premises or any portion thereof as the agent of Tenant upon such terms and conditions as Landlord may deem necessary or desirable in order to relet the Premises. The remainder of any rentals received by Landlord from such reletting, after the payment of any indebtedness due hereunder from Tenant to Landlord, and the payment of any costs and expenses of such reletting (including, without limitation, leasing commissions and costs of preparing the Premises for reletting), shall be presumed held by Landlord to be the extent of and for application in payment of future
(v) With or without terminating this Lease, allow the Premises to remain unoccupied and on behalf collect rent from Tenant as it comes due; provided that nothing contained in this Lease will relieve Landlord of Tenant, and not Landlord, unless Landlord expressly provides otherwise its duty to mitigate its damages to the extent required under the laws of the State in writing to Tenantwhich the Building is located; or (vi) Pursue such other remedies as are available at law or equity.
Appears in 1 contract
Default and Remedies. a. The occurrence of any of A. Notwithstanding anything to the following shall constitute contrary contained in this Agreement, if Closing does not occur solely due to a default under by any Owners or any Companies hereunder, then as ▇▇▇▇▇’ (and breach of upon joining in this Lease Agreement by Tenant amendment, any ▇▇▇▇▇ Acquisition Subsidiary’s) sole and exclusive remedy hereunder, ▇▇▇▇▇ may (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of terminate this Agreement, in which event the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period ▇▇▇▇▇▇▇ Money shall be extended for the time reasonably required returned to complete such cure▇▇▇▇▇, if such failure cannot reasonably and this Agreement shall be cured within said thirty (30) day period null and Tenant commences to cure such failure within said thirty (30) day period void, and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution no party shall have any rights or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits Agreement (except such obligations which by their express terms survive termination of this Agreement), and in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant no event shall ▇▇▇▇▇ or any guarantor of Tenant’s obligations under this Lease, ▇▇▇▇▇ Acquisition Subsidiary be entitled to recover additional money damages against the Owners (except as provided in Sections 8 and 12.P hereof) or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlordseek specific performance of any Owners’ obligations hereunder, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant provided an action is filed within ten forty-five (1045) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premisesdefault.
iiiB. Notwithstanding anything to the contrary contained in this Agreement, if all conditions precedent to ▇▇▇▇▇’ obligations hereunder set forth in Sections 10.B, 10.C, 10.D or 10.G have been satisfied (or if the same have not been satisfied due to an act or omission of ▇▇▇▇▇ or any ▇▇▇▇▇ Acquisition Subsidiary) Landlord, and ▇▇▇▇▇ or any ▇▇▇▇▇ Acquisition Subsidiary fails to complete closing in accordance with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender terms of this Lease or of Agreement, then this Agreement may be terminated by the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants Owners and the rent and other charges reserved in this Lease, but Tenant Owners shall not be entitled to receive retain the ▇▇▇▇▇▇▇ Money as the Owners’ sole remedy and as liquidated damages. The Owners and ▇▇▇▇▇ acknowledge and agree that: (i) the ▇▇▇▇▇▇▇ Money is a reasonable estimate of and bears a reasonable relationship to the damages that would be suffered and costs incurred by the Owners as a result of having withdrawn the Property from sale and the failure of Closing to occur due to a default of ▇▇▇▇▇ or any excess of any such rents collected over ▇▇▇▇▇ Acquisition Subsidiary under this Agreement; (ii) the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, actual damages suffered and this Lease shall be deemed to have been terminated upon receipt costs incurred by Tenant of written notice the Owners as a result of such terminationwithdrawal and failure to close due to a default of ▇▇▇▇▇ or any ▇▇▇▇▇ Acquisition Subsidiary under this Agreement would be extremely difficult and impractical to determine; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions (iii) ▇▇▇▇▇ seek to limit its liability and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession liability of the Premises, the cost of any alteration of or repair ▇▇▇▇▇ Acquisition Subsidiaries under this Agreement to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents ▇▇▇▇▇▇▇ Money in the event this Agreement does not close due to a default by ▇▇▇▇▇ or any ▇▇▇▇▇ Acquisition Subsidiary under this Agreement; and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if such amount shall constitute full, complete and valid liquidated damages; provided, however, that the Lease were foregoing shall not terminated. Such election shall be made limit the Owners’ recourse against ▇▇▇▇▇ (or after such time as the ▇▇▇▇▇ Acquisition Subsidiaries have become parties hereto by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30amendment, against any ▇▇▇▇▇ Acquisition Subsidiary) days of the notice of termination.under Sections 8, 5.Q, 11 and 12.P.
vi) The exercise by Landlord of C. After Closing and subject to any one or more of the rights and remedies provided limitations set forth in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this LeaseAgreement, including, but not limited to, acceptance Sections 12.K and 12.M, the Owners, ▇▇▇▇▇ and the Surviving Companies shall, subject to the terms and conditions of this Agreement, have such rights and remedies as are available at law or in equity, but only for such obligations as expressly survive Closing; except that in no event shall any of the keysOwners, institution of an action for detainer ▇▇▇▇▇ or other dispossessory proceedingsthe Surviving Companies be entitled to recover from the others consequential, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenantexemplary, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantpunitive or special damages.
Appears in 1 contract
Sources: Merger Agreement (Mills Corp)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-re - enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Triple Net Office Lease Agreement (Franklin Financial Network Inc.)
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
(i) Failure by Tenant to pay any monetary amounts Rental within (including Base Rental and Additional Rental) due hereunder within ten (105) days following after the same becomes due hereunder; provided that no more than two (2) times per twelve (12) month period Landlord shall deliver written notice of non-payment to Tenant that the Rental is more than five (5) days past due and Tenant shall have (5) days from Landlord the date such notice is sent to Tenantpay such Rental;
(ii) Abandonment of The Leased Premises are deserted, vacated for more than thirty (30) days, or not used as regularly or consistently as would normally be expected for similar premises put to general office use, even though the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in Tenant continues to pay the Premises)stipulated monthly rent;
(iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Leaseset forth in Article VIII;
(iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
(v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant pursuant to Section 7.08 or Section 7.09 of this Lease, within twenty ten (2010) days after the initial written demand for same therefor to Tenant;
(vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
(vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty fifteen (3015) days from the date of such filing;
(viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
(ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty ninety (6090) days after such appointment;
(x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution;
(xi) Tenant’s repeated or continued failure to timely pay any Rental due Landlord hereunder where such failure shall continue or be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months; or
xi(xii) Tenant’s repeated failure to observe or perform any of the other covenants, ; terms or conditions hereof more than three six (36) times, in the aggregate, in any period of twelve (12) consecutive months.
b. (b) Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Rules and Regulations now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall vacate the Leased Premises and remove therefrom all property thereon belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises. Any such demand, re-entry and taking possession of the Leased Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Leased Premises and remove therefrom Tenant and all property belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Leased Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such relettingreletting including but not limited to the cost of any such alterations and repairs to the Leased Premises, attorneys’ fees, leasing inducements, and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Leased Premises, the cost of any alteration of or repair to the Leased Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Leased Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (ivSection 7.01(b)(iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi(c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all claims for damages which may be caused by such re-entry or termination by Landlord. Tenant shall and does hereby indemnify and hold Landlord harmless from any loss, cost (including court costs and attorneys’ fees), or damages suffered by Landlord by reason of such re-entry or termination. No such re-entry or termination shall be considered or construed to be a forcible entry.
(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii(e) No act by Landlord with respect to the Leased Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Leased Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Sublease Agreement (Cumberland Pharmaceuticals Inc)
Default and Remedies. a. The An “Event of Default” shall be deemed to have been committed by Tenant upon the occurrence of any of the following shall constitute a default under events: (i) the failure to pay when due any installment of Monthly Base Rent, which failure continues for five (5) days after notice from Landlord; or (ii) the failure to pay when due any Additional Rent or any other payment required by the terms and breach provisions hereof, which failure continues for five (5) days after notice from Landlord; or (iii) the conveyance, assignment, mortgage or sublet of this Lease by Tenant Lease, the Premises or any part thereof, or Tenant’s interest therein, or any attempt of the foregoing, without the prior written consent of Landlord (except to the extent otherwise expressly permitted pursuant to this Lease); or (iv) an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises Bankruptcy (defined as any period of one hundred and eighty in Section 17 below), or (180v) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant violation or failure to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure other terms, conditions, covenants, or agreements herein made by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition and which Tenant has created violation or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue continues for thirty (30) calendar days after written notice thereof from Landlord to TenantLandlord; provided provided, however, that if the nature of such violation or failure under this clause (v) is not reasonably capable of being cured within such thirty (30) day period, then the period in which Tenant may cure such failure shall be extended for the a period of time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences necessary to cure such violation or failure, provided Tenant promptly commences the cure of such violation or failure within said the initial thirty (30) day period and thereafter reasonably diligently pursues the cure of such violation or failure to completion within not more than ninety (90) days after commencement; and continuously proceeds provided, further, that no cure period shall be permitted to cure Tenant following notice of default in the payment of Rent after the second occurrence thereof in any consecutive twelve (12) month period.
b. In the event of any Event of Default by Tenant as defined in Section 16.a., Landlord may at any time thereafter, without notice and demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such failure;
vii) The levy upon execution default or the attachment by legal process breach (including self-help or specific performance or injunctive relief), do any of the leasehold interest following:
(i) Landlord may terminate this Lease, by giving written notice of such termination to Tenant, whereupon this Lease shall automatically cease and terminate and Tenant shall be immediately obligated to quit the Premises. Any other notice to quit or notice of Landlord’s intention to re-enter the Premises is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant all rent and any other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later.
(ii) With or without the termination of this Lease, Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the jurisdiction in which the Building is located, or by such other proceedings, including re-entry and possession, as may be applicable. If this Lease is terminated or Landlord recovers possession of the Premises before the expiration of the Term by reason of Tenant’s default as hereinabove provided, or if Tenant shall abandon or vacate the filing or creation of a lien in respect Premises before the Lease Expiration Date without having paid the full rental for the remainder of such leasehold interestTerm, which lien Landlord shall have the obligation to use commercially reasonable efforts to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances, and, if the full rental reserved under this Lease (and any of the costs, expenses or damages indicated below) shall not be released realized by Landlord, Tenant shall be liable for all damages sustained by Landlord, including, without limitation, deficiency in Rent during any period of vacancy or discharged within thirty otherwise; the costs of removing and storing the property of Tenant or of any other occupant; all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies, including, without limitation, reasonable attorneys’ fees, and advertising, brokerage fees and expenses of placing the Premises in first class rentable condition. Landlord, in putting the Premises in good order or preparing the same for re-rental may, at Landlord’s option, make such alterations, repairs, or replacements in the Premises as Landlord, in its reasonable judgment, considers advisable and necessary for the purpose of reletting the Premises, and the making of such alterations, repairs, or replacements shall not operate or be construed to release Tenant from liability hereunder as aforesaid.
(30iii) days Any damage or loss of rent sustained by Landlord may be recovered by Landlord from Tenant, at Landlord’s option, at the time of termination of this Lease, the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord’s option in a single proceeding deferred until the expiration of the Term (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior to either the time of reletting or the expiration of the Term. If Landlord elects to repossess the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such filing;repossession, together with interest thereon at the Default Rate, plus Rent required to be paid by Tenant to Landlord during the remainder of this Lease until the date of expiration of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period (after deducting expenses incurred by Landlord as provided in Section 16.b.(ii), above). In no event shall Tenant be entitled to any excess of any Rent obtained by reletting over and above the Rent herein reserved. Actions to collect amounts due from Tenant as provided in this Section 16.b.(iii) may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until expiration of the Term of this Lease.
viii(iv) Upon termination of this Lease, Landlord shall become entitled to recover from Tenant or any guarantor of as and for liquidated damages for Tenant’s obligations default hereunder, the difference, discounted to present value by applying a discount rate equal to the Prime Rate, between (i) the Annual Base Rent reserved hereunder for what, but for any such termination, would have been the unexpired portion of the Term, and (ii) the cash rental value of the Premises for such unexpired portion of the Term (unless the statute that governs or shall govern the proceedings in which such damages are to be proved limits the amount of such claim capable of being so proved, in which case Landlord shall be entitled to prove as and for liquidated damages an amount equal to that allowed by or under any such statute). In calculating such liquidated damages, the then cash rental value of the Premises shall be deemed prima facie to be the actual rent received by Landlord for the Premises upon a re-letting or, if not received, the estimated cash rental value of the Premises upon any re-letting, as determined by a broker or an appraiser selected by Landlord. The provisions of this subsection shall be without prejudice to Landlord’s right to prove and collect, in full, damages for all rent accrued prior to the termination of this Lease becomes insolvent but not paid.
c. Tenant hereby expressly waives any and all rights of redemption granted by or bankrupt under any present or admits future laws in writing its inability to pay its debts as they maturethe event Tenant is evicted or dispossessed for any cause, or makes an assignment for in the benefit event Landlord obtains possession of creditorsthe Premises, or applies for or consents to by reason of the appointment violation by Tenant of a trustee or receiver for all or a major part any of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor the covenants and conditions of Tenant’s obligations under this Lease or for a major part of either party’s property otherwise. In addition, Tenant hereby expressly waives any and is not discharged within sixty (60) days all rights to bring any action whatsoever against any tenant taking possession after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency Tenant has been dispossessed or liquidation proceedingevicted hereunder, or to make any such tenant a party to any action brought by Tenant against Landlord.
d. Landlord and Tenant shall and each does hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other proceeding on any matters whatsoever arising out of or in any way connected with this Lease or its termination, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises or any claim of injury or damage and any emergency statutory or any other statutory remedy.
e. Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for relief under anticipatory breach of the unexpired Term. In the event of a breach or anticipatory breach by Tenant of any bankruptcy of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or similar law in equity as if reentry, summary proceedings and other remedies were not provided for the relief herein.
f. If Landlord fails to perform any of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of TenantLandlord’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated the failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, continues for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days after Landlord receives notice from Tenant describing in detail the failure, then Landlord shall be in default under this Lease (a “Landlord Default”), except that if the failure cannot reasonably be cured within the 30-day period, then the failure shall not be a Landlord Default if Landlord commences to cure the failure within the 30-day period and then with reasonable diligence pursues and completes the cure within not more than ninety (90) days after commencement. If a Landlord Default occurs, then Tenant may exercise any of the notice following remedies: (i) cure the Landlord Default and deduct from Rent all actual reasonable costs of termination.
vi) The exercise by curing the Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and mayDefault, at the election of with evidence thereof being submitted to Landlord, be exercised alternatively, successively, or in any other manner and are in addition (ii) exercise all remedies available to any other rights provided for or allowed by Tenant at law or in equity, including specific performance.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Office Lease (Costar Group Inc)
Default and Remedies. a. The occurrence following events shall be deemed to be events of default by Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money becoming due to be paid to Landlord hereunder, whether such sum be any installment of the following rent herein reserved, any other amount treated as additional rent hereunder, or any other payment or reimbursement to Landlord required herein, whether or not treated as additional rent hereunder, and such failure shall constitute continue for a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten period often (10) days following after receipt of written notice of non-payment from Landlord; provided, however, notwithstanding the foregoing, Landlord shall not be required to give such notice to Tenant more than two (2) times in any calendar year with respect to Tenant;
ii) Abandonment of the Premises (defined as 's obligation to make any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of payment under this Lease, if and after Landlord shall have given two (2) such notices in any given calendar year, Tenant shall not be entitled to any notice or cure period for any subsequent default within with such calendar year; or
(b) Tenant shall fail to comply with any term, provision or covenant of this Lease other than by failing to pay when or before due any sum of money becoming due to be paid to Landlord hereunder, and such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord is given to Tenant; provided Tenant (provided, if the default is of a nature that such cannot be cured within thirty (30) day period days, no default shall be extended for the time reasonably required to complete such cure, occur if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to the cure within such failure within said thirty (30) day period and thereafter diligently and continuously proceeds pursues the same to cure conclusion within not more than ninety (90) days); or
(c) Tenant shall abandon or vacate any substantial portion of the Premises during the initial eighteen (18) months of the Lease Term; or
(d) Tenant shall create or allow to be created in or about the demised Premises any condition or circumstance constituting a hazard to people or property, a nuisance, a trespass, or other condition offensive to Landlord or others, whether or not such failurecondition or circumstance rises to the level of a civil or criminal law violation or action; or
(e) Tenant shall fail to vacate the Premises immediately upon termination of this Lease, by lapse of time or otherwise, or upon termination of Tenant's right to possession only;
vii(f) The levy If, in spite of the provisions hereof, the interest of Tenant shall be levied upon under execution or the attachment be attached by legal process of law or Tenant shall fail to contest diligently the leasehold interest validity of Tenantany lien or claimed lien and give sufficient security to Landlord to insure payment thereof or shall fail to satisfy any judgment rendered thereon and have the same released, or the filing or creation of a lien in respect of and such leasehold interest, which lien default shall not be released or discharged within thirty continue for ten (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (6010) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of written notice thereof to Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi(g) Tenant’s repeated failure to observe Tenant shall assign, sublet or perform any transfer its interest hereunder in violation of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. this Agreement. Upon the occurrence of an Event any such events of Defaultdefault described in this paragraph or elsewhere in this Lease, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform pursue any one or more of the following in addition to, and not in limitation of, remedies without any other remedy notice or right permitted it by law or in equity or by this Leasedemand whatsoever:
(i) LandlordLandlord may, with at its election, terminate this Lease or terminate Tenant's right to possession only, without terminating this the Lease, may immediately or at .
(ii) Upon any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation termination of this Lease, whether by lapse of time or otherwise, or upon any termination of Tenant's right to possession without termination of the Lease, Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to Landlord, and Tenant shall fully reimburse hereby grants to Landlord full and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, free license to enter into and upon the Premises in such event with or without terminating process of law and to repossess the Premises and to expel or remove Tenant and any others who may be occupying or within the Premises and to remove any and all property therefrom, without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, and without incurring any liability for any damage resulting therefrom; Tenant hereby waiving any right to claim damage for such reentry and expulsion, and without relinquishing Landlord's right to rent or any other right given to Landlord hereunder or by operation of law.
(iii) Upon termination of this Lease, may immediately whether by lapse of time, by or at in connection with a dispossessory proceeding or otherwise, Landlord shall be entitled to recover as Landlord's actual accrued damages, all rent, including any time thereafter demand in writing that amount treated as additional rent hereunder, and other sums due and payable by Tenant vacate on the date of termination, plus, as Landlord's liquidated damages for the balance of the stated term hereof and not as a forfeiture or penalty, the sum of: (a) an amount equal to the then present value of the rent, including any amounts treated as additional rent hereunder, and other sums provided herein to be paid by Tenant for the residue of the stated term hereof, less the fair rental value of the Premises for such residue (taking into account the time and thereupon Tenant shall vacate expenses necessary to obtain a replacement tenant or tenants, including expenses hereinafter described in subparagraph (iv)(B) relating to recovery of the Premises Premises, preparation for reletting and remove therefrom all property thereon belonging to or placed on for reletting itself), and (b) the Premises by, at the direction of, or with consent cost of Tenant within ten performing any other covenants which would have otherwise been performed by ▇▇▇▇▇▇.
(10A) days Upon termination of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the ▇▇▇▇▇▇'s right to re-enter and take possession of the demised Premises.
iii) Landlord, with or without terminating this Leaseregardless of whether such termination occurs as a result of a dispossessory proceeding, may immediately or at any time thereafterdistraint proceeding, exercise of right of termination, re-entry, lease expiration or otherwise, Tenant shall remain liable for payment of all rent thereafter accruing and for performance of all obligations thereafter performable under this Lease. Landlord may, at ▇▇▇▇▇▇▇▇'s option, enter the Premises Premises, remove ▇▇▇▇▇▇'s signs and remove therefrom Tenant other evidences of tenancy, and all property belonging to or placed on the Premises bytake and hold possession thereof as provided in subparagraph (g)(ii) above, at the direction of, or with consent of Tenant. Any without such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or possession releasing Tenant from any obligation, including ▇▇▇▇▇▇'s obligation to pay rent, including any amounts treated as additional rent, hereunder for the full term of the Premises by Tenant and shall not of itself constitute a termination of this Lease by LandlordLease.
iv(B) LandlordLandlord may, with or without terminating this Leasebut need not, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisableshall determine (including the right to relet the Premises for a greater or lesser term than that remaining under this Lease, the right to relet the Premises as a part of a larger area, and the right to change the character and use made of the Premises) and Landlord shall not be required to accept any tenant offered by Tenant or to observe any instructions given by ▇▇▇▇▇▇ about such reletting. In any such case, Landlord may make any repairs, alterations and additions in or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during redecorate the remainder of same to the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant extent Landlord deems necessary or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Leasedesirable, and this Lease shall be deemed to have been terminated Tenant shall, upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination demand, pay the cost thereof, together with Landlord's expenses for reletting, including, without limitation, unamortized sums expended any broker's commission incurred by Landlord. If the consideration collected by Landlord upon any such reletting plus any sums previously collected from Tenant are not sufficient to pay the full amount of all rent, including any amounts treated as additional rent hereunder and other sums reserved in this Lease for leasing commissions the remaining term hereof, together with the costs of repairs, alterations, additions, redecorating, and construction ▇▇▇▇▇▇'s expenses of tenant improvementsreletting and the collection of the rent accruing therefrom (including attorneys' fees and broker's commissions), Tenant shall pay to Landlord, as Landlord's liquidated damages and not as a forfeiture or penalty, the amount of such deficiency upon demand and Tenant agrees that Landlord may file suit to recover any sums falling due under this section from time to time.
(C) Without any showing of need, or the presence of any statutory or common law grounds, all arrearages in rentalsof which are expressly waived, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering Landlord may have a receiver appointed to take possession of the Premises and relet same in accordance with this Section 18(g)(iv).
(v) Landlord may, at ▇▇▇▇▇▇▇▇'s option, enter into and upon the Premises, with or without process of law, if Landlord determines in its sole discretion that Tenant is not acting within a commercially reasonable time to maintain, repair or replace anything for which ▇▇▇▇▇▇ is responsible hereunder, and correct the cost same, without being deemed in any manner guilty of trespass, eviction or forcible entry and detainer and without incurring any alteration of or repair liability for any damage resulting therefrom, and ▇▇▇▇▇▇ agrees to reimburse Landlord, on demand, as additional rent, for any expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease.
(vi) Any and all property which may be removed from the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, by Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions authority of subsection (iv) if the Lease were not terminatedor of law, to which Tenant is or may be entitled, may be handled, removed and stored, as the case may be, by or at the direction of Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. Such election Tenant shall pay to Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be made in Landlord's possession or under ▇▇▇▇▇▇▇▇'s control. Any such property of Tenant not retaken by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives from storage within thirty (30) days after removal from the Premises shall, at Landlord's option, be deemed conveyed by Tenant to Landlord under this Lease as by a bill of sale without further payment or credit by Landlord to Tenant. Pursuit of any of the notice foregoing remedies shall not preclude pursuit of termination.
vi) The exercise any of the other remedies herein provided or any other remedies provided by law or available in equity (all such remedies being cumulative), nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. No act or thing done by Landlord or its agents during the term hereby granted shall be deemed a termination of this Lease or an acceptance of the surrender of the Premises, and no agreement to terminate this Lease or accept a surrender of said Premises shall be valid unless in writing signed by ▇▇▇▇▇▇▇▇. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. ▇▇▇▇▇▇▇▇'s acceptance of the payment of rental or other payments hereunder after the occurrence of an event of default shall not be construed as a waiver of such default, unless Landlord so notifies Tenant in writing. Forbearance by Landlord in enforcing one or more of the rights and remedies herein provided in this Lease upon an event of default shall not prevent the subsequent exercise by Landlord be deemed or construed to constitute a waiver of any one such default or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in 's right to enforce any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord such remedies with respect to such default or any subsequent default. If Landlord commences any proceedings for non-payment of rent or other amounts due hereunder, ▇▇▇▇▇▇ will not interpose any counterclaim of any nature or description in such proceedings. Such agreement by Tenant shall not, however, be construed as a waiver of ▇▇▇▇▇▇'s right to assert such claims in a separate action brought by ▇▇▇▇▇▇. The covenants to pay rent and other amounts hereunder are separate and independent covenants, and Tenant shall have no right to hold back, offset, or fail to pay any such amounts for default by Landlord or for any other reason whatsoever. Without limiting the foregoing, to the extent permitted by law, Tenant hereby: (x) appoints and designates the Premises as a proper place for service of process upon Tenant, and agrees that service of process upon any person apparently employed by Tenant upon the Premises or leaving process in a conspicuous place within the Premises shall terminate this Leaseconstitute personal service of such process upon Tenant (provided, includinghowever, but Landlord does not limited to, acceptance hereby waive the right to serve Tenant with process by any other lawful means); and (y) expressly waives the service of any notice under any existing or future law of the keysState of Florida applicable to landlords and tenants. LANDLORD AND TENANT HEREBY KNOWINGLY, institution of an action for detainer or other dispossessory proceedingsVOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT WHICH EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED HEREON, it being understood that this Lease may only be terminated by express written notice from Landlord to TenantOR ARISING OUT OF, and any reletting of the Premises shall be presumed to be for and on behalf of TenantUNDER, and not LandlordOR IN CONNECTION WITH THIS LEASE OR ANY DOCUMENT TO BE EXECUTED IN CONJUNCTION HEREWITH, unless Landlord expressly provides otherwise in writing to TenantOR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER LANDLORD OR TENANT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LANDLORD TO ENTER INTO THIS LEASE.
Appears in 1 contract
Sources: Lease (Optium Corp)
Default and Remedies. a. The occurrence of any one or more of the following shall events will constitute a default under and breach of this Lease by Tenant (an “Event event of Default”):default” on the part Tenant:
i) A. Failure by Tenant to pay any monetary amounts (including Base Rental installment of rent or any other sum required to be paid by Tenant under this Lease, and Additional Rental) due hereunder within such failure shall continue for ten (10) days following written notice of non-payment from Landlord days.
B. Failure to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the other covenants or conditions which Tenant is required to observe and perform (except for the failure to pay rent or any other monetary obligation contained in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall should continue for thirty (30) days (or such shorter period of time as may be specified by Landlord in the event of an emergency) after written notice thereof from by Landlord to Tenant; provided provided, however, that if such default is other than the payment of money and cannot be cured within such thirty (30) day period period, then an event of default shall be extended for the time reasonably required to complete not have occurred if Tenant, without such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant period, commences to cure curing of such failure within said thirty (30) day period and thereafter diligently in good faith prosecutes the same to completion and continuously proceeds furnishes evidence thereof to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged Landlord within thirty (30) days from thereafter;
C. The levy of a writ of attachment or execution or other judicial seizure of substantially all of Tenant’s assets or its interest in this Lease, such attachment, execution or other seizure remaining undismissed or discharged for a period of thirty (30) days after the levy thereof;
D. The filing of any petition by or against Tenant to declare Tenant a bankrupt or to delay, reduce or modify Tenant’s debts or obligations, which petition is not discharged within forty-five (45) days after the date of such filing;
viii) Tenant E. The filing of any petition or any guarantor of other action taken to reorganize or modify Tenant’s obligations under this Lease becomes capital structure, which petition is not discharged within forty-five (45) days after the date of filing;
F. If Tenant shall be declared insolvent or bankrupt or admits in writing its inability according to pay its debts as they mature, or makes an law;
G. A general assignment by Tenant for the benefit of creditors, or applies for or consents to the ;
H. The appointment of a receiver or trustee for Tenant or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and property, which appointment is not discharged within sixty forty-five (6045) days after such appointmentthe date of filing;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) I. The filing by Tenant of a voluntary petition pursuant to the Bankruptcy Code or any guarantor successor thereto or the filing of Tenant’s obligations under this Lease, or (B) an involuntary petition against Tenant pursuant to the Bankruptcy Code or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or successor legislation, which petition is not dismissed discharged within sixty forty-five (6045) days after such institutionthe date of filing; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the J. The occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have Default under the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation provisions of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach an Event of this Lease by Tenant Default (an “"Event of Default”):") under this Lease on the part of Tenant:
(i) Failure by Tenant to pay any monetary amounts payment of Rent when due (including Base Rental including, without limitation, Annual Basic Rent, Tenant's Operating Expense Share, Tenant's Tax Share and Additional RentalAbove Standard Services Rent) due hereunder within and such failure to pay continues for a period of ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that Landlord shall not be obligated to send written notice of a failure to pay more than two (2) times in any consecutive twelve (12) month period, or
(ii) At any time that Tenant does not satisfy the Net Worth Test, failure of Tenant to maintain any policy of insurance that Tenant is required by the terms of this Lease to maintain and such failure continues for a period of ten (10) business days after written notice from Landlord to Tenant of such failure, which notice shall (A) specify the insurance policy which Tenant has failed to maintain and the provision of this Lease which requires Tenant to maintain such insurance, and (B) state, in all capital letters and in a prominent place, that the continuance of such failure to maintain insurance for ten (10) business days after Tenant's receipt of such written notice will constitute an Event of Default under Section 7.1(a) of the Lease, or
(iii) Tenant breaches or fails to comply with any term, provision, condition or covenant of this Lease, other than as described in Section 7.1(a)(i) and (ii), and such breach or failure continues for thirty (30) days after written notice from Landlord to Tenant of such breach or failure to comply (or, if such breach or failure is curable but reasonably cannot be cured within thirty (30) days, Tenant does not commence to cure such breach or failure promptly within such thirty (30) day period and continuously and diligently thereafter pursue such cure and remedy until such breach or failure is remedied; provided that there shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty a maximum period of one hundred eighty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60180) days after Landlord's written notice to cure or remedy such appointment;
x) Any bankruptcydefault, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding except that such maximum cure period shall extended as appropriate for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) delays caused by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsForce Majeure Events.
b. (b) Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord may immediately or at any time thereafter, collect all overdue Rent and other charges payable to Landlord, together with or without terminating this LeaseLandlord's legal fees and costs of enforcement, with interest at the Applicable Rate from the date such sums were originally due until the date paid in full.
(ii) Landlord may immediately or at any time thereafter re-enter the Leased Premises and correct or repair any condition which shall constitute a failure on Tenant’s 's part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Building Rules now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.
ii(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Leased Premises and thereupon Tenant shall immediately vacate the Leased Premises and remove therefrom all property thereon (other than Non-Removable Improvements) belonging to or placed on in the Leased Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from LandlordTenant, whereupon Landlord shall have the right to re-enter and take possession of the Leased Premises. Any such demand, re-entry and taking possession of the Leased Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iii(iv) Landlord, with or without terminating this Lease, Landlord may immediately or at any time thereafter, re-enter the Premises Leased Premises, and if persons or any of Tenant's property are then in the Leased Premises, then, upon prior written notice to Tenant, Landlord may remove therefrom Tenant and all property belonging to or placed on the Leased Premises by, at the direction of, or with consent of Tenant, all at Tenant's expense. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Leased Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv(v) Landlord, with or without terminating this Lease, may immediately or at any time anytime thereafter relet the Leased Premises or any part thereof thereof, for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisabledeems reasonable, and Landlord may make any alterations or repairs to the Leased Premises which it may deem that are necessary or proper to facilitate such relettingreletting as office space; and Tenant shall pay all reasonable costs of such reletting, including, but not limited to, the cost of any such alterations and repairs to the Leased Premises and reasonable attorneys' fees actually incurred; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges Rent due under this lease Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease Term the differenceamount, if any, between by which the Rent and other charges reserved in this Lease exceed the rent and other charges collected from any such subsequent tenant or tenants (net of the costs Landlord incurred to re-enter and relet the rent and other charges reserved in this LeaseLeased Premises), but Tenant shall not be entitled to receive any excess of any such rents collected over the rents Rent reserved herein. Landlord hereby agrees to use its commercially reasonable efforts to relet the Leased Premises to mitigate or otherwise reduce the damages for which Tenant may be liable hereunder, but only to the extent required under applicable law in the state in which the Building is located; provided that in no event shall Landlord's leasing or attempted leasing of other space in the Building instead of the Leased Premises, in and of itself, violate the provisions of the preceding sentence. Any such reletting may be for such rent, for such time, and upon such terms as the Landlord, in the Landlord's good faith discretion, shall determine to be commercially reasonable. Landlord shall be deemed to have exercised commercially reasonable efforts to relet the Leased Premises so long as Landlord or Landlord's agents employ marketing methods and procedures substantially similar to marketing methods and procedures used by Landlord or Landlord's agents to market and lease vacant space in other buildings, which are similar in nature and quality to the Building, owned by Landlord or an affiliate of Landlord.
v(vi) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by notice to Tenant of written notice of such termination; upon such termination Landlord shall elect to either recover from Tenant (A) all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and reasonable attorneys’ ' fees) of recovering possession of the Leased Premises, the actual or estimated (as reasonably estimated by Landlord) cost of any alteration of or repair to of the Leased Premises which that is necessary or proper to prepare the same for reletting andas office space, or (B) all arrearages in addition theretorentals, Landlord at its election shall have and recover from Tenant either (A) plus an amount equal to the excess, if any, of the present value discounted at the Prime Rate of the total amount of all rents and other charges Rent to be paid by Tenant for the remainder of the term of this Lease Term, over the then reasonable present value (discounted at the same rate) of the fair market rental value of the Leased Premises for the remainder of the term Term.
(c) If Landlord re-enters the Leased Premises or terminates this Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all claims for damages that may be caused by such re-entry or (B) the rents and other charges which termination by Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection this Lease. Tenant shall and does hereby indemnify and hold Landlord harmless from any loss, cost (iv) if the Lease were not terminated. Such election shall be made including court costs and attorneys' fees), or damages suffered by Landlord by serving written notice upon Tenant reason of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationsuch re-entry or termination unless caused by Landlord's gross negligence.
vi(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All Except as otherwise provided in this Lease, remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Master Lease Agreement (American Financial Realty Trust)
Default and Remedies. a. Section 21.01. The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “"Event of Default”):
i" under this Lease: (a) Failure by if Tenant shall fail to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure or other sums payable by Tenant to observe hereunder as and when such Rental or perform any of the covenants in respect of assignment other sums become due and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute payable and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for more than five (5) business days after written notice of such non-payment; (b) if Tenant shall fail to perform or observe any covenant or obligation hereunder and such failure shall continue for more than thirty (30) days after written notice thereof from Landlord to Tenantnotice; provided that or, if such failure is not of an emergency nature, does not endanger the health, safety or welfare of the Premises (or any portion thereof) or the occupants thereof, and is curable but cannot reasonably be cured within such thirty (30) day period period, Tenant shall be extended for the time reasonably required have a reasonable extension of such cure period, up to complete such curea maximum extension of one hundred twenty (120) days, if such failure cannot reasonably be cured within said thirty (30) day period and so long as Tenant commences to cure such failure correct same within said thirty (30) day period and thereafter diligently and continuously proceeds prosecutes the correction of same to cure such failure;
viicompletion; (c) The levy upon execution if any petition is filed by or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) against Tenant or any guarantor of Tenant’s 's obligations under this Lease under any section or chapter of the present or any future Federal Bankruptcy Code or under any similar law or statute of the United States or any state thereof (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of its commencement), or if any order for relief shall be entered against Tenant or any guarantor of Tenant's obligations under this Lease in proceedings filed under any section or chapter of the present or any future Federal Bankruptcy Code or under any similar law or statute of the United States or any state thereof; (d) if Tenant or any guarantor of Tenant's obligations under this Lease becomes insolvent or bankrupt makes a transfer in fraud of creditors; (e) if Tenant or admits in writing its inability to pay its debts as they mature, or any guarantor of Tenant's obligations under this Lease makes an assignment for the benefit of creditors; or (f) if a receiver, custodian, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, Tenant or any guarantor of Tenant’s 's obligations under this Lease or for a major part any of either party’s property and the assets of Tenant or any guarantor of Tenant's obligations under this Lease, which appointment is not discharged vacated within sixty (60) days after of the date of such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of Section 21.02. If an Event of DefaultDefault occurs, then at any time thereafter while Tenant remains in default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to may do and perform any one or more of the following following, thirty (30) days after notice of its intent to do so, during which period Tenant shall have the opportunity to file for injunctive relief:
(a) With respect to a monetary or a material non-monetary Event of Default, terminate this Lease, in addition towhich event Tenant shall immediately surrender the Premises to Landlord after Landlord obtains a judgment for possession (or similar judicial order). For purposes of this Section 21.02, a "material non-monetary default" shall relate to an Installation Requirement (as hereinafter defined), or an incurable default, or a default or breach of Tenant's obligations under Articles 9, 11, 18, 20 or 26 hereof, or a breach of Section 16.01 hereof, and not in limitation ofshall have a material adverse effect on the Building, Land and/or Landlord, and Landlord's notice of material non-monetary default shall clearly indicate thereon that a "material non-monetary" default has occurred. If Tenant fails to do so, Landlord may, without notice and without prejudice to any other remedy or right permitted it by law or in equity or by this Lease:
i) LandlordLandlord may have, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter upon and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and expel or remove therefrom Tenant and all property belonging its effects without being liable to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises prosecution or any part thereof claim for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such relettingdamages therefor; and Tenant shall pay indemnify Landlord for all reasonable costs of such reletting; loss and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages damage which Landlord may suffer by reason of such termination includingtermination, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair whether through inability to relet the Premises which is necessary or proper to prepare the same for reletting andotherwise, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, including any loss of the total amount of all rents and other charges to be paid by Tenant Rental for the remainder of the term Term.
(b) Terminate this Lease, as aforesaid in paragraph (a) above for a monetary or material non-monetary Event of Default, in which event Tenant's Event of Default should be considered a total breach of Tenant's obligations under this Lease over and Tenant immediately shall become liable for such damages for such breach in an amount, equal to the then reasonable rental value total of (1) the costs of recovering the Premises; (2) the unpaid Rental earned as of the Premises date of termination, plus interest thereon at a rate per annum from the due date equal to twelve percent (12%), provided, however, that such interest shall never exceed the Highest Lawful Rate; (3) the amount of the excess of (i) the total Rental and other benefits which Landlord would have received under this Lease for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and mayTerm, at the election of Landlord, be exercised alternatively, successively, or rates then in any other manner and are in addition to any other rights provided for or allowed effect (reduced by law or in equity.
vii) No act the rent received by Landlord under a lease with respect a new tenant covering the balance of this Lease term), together with all other expenses incurred by Landlord in connection with Tenant's default, over (ii) the Fair Market Value Rate of the balance of the Term as of the time of such breach, discounted at the rate of six percent (6%) per annum to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.then-present value; and
Appears in 1 contract
Sources: Lease Agreement (Infocrossing Inc)
Default and Remedies. a. 13.1. The occurrence of any one or more of the following events shall constitute a default an "EVENT OF DEFAULT" of Tenant under and breach of this Lease by Lease: (a) if Tenant (an “Event of Default”):
i) Failure by Tenant fails to pay any monetary amounts Rent hereunder as and when such Rent becomes due and such failure shall continue for more than five (including Base Rental 5) days after Landlord gives Tenant notice of past due Rent; (b) if the Premises are abandoned or if Tenant fails to take possession of the Premises on the Commencement Date or promptly thereafter; (c) if Tenant permits to be done anything which creates a lien upon the Premises and Additional Rentalfails to discharge or bond such lien or post such security with Landlord as is required by Article 11; (d) due hereunder within if Tenant violates the provisions of Article 8 by attempting to make an unpermitted assignment or sublease; (e) if Tenant fails to maintain in force all policies of insurance required by this Lease and such failure shall continue for more than ten (10) days following written after Landlord gives Tenant notice of non-payment from Landlord such failure; or (f) if Tenant fails to Tenant;
ii) Abandonment of the Premises (defined as perform or observe any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting other terms of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute Lease and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for more than thirty (30) days after written Landlord gives Tenant notice thereof from Landlord to Tenant; provided that of such failure, or, if such failure cannot be corrected within such thirty (30) day period shall be extended for the time reasonably required to complete such cureperiod, if Tenant does not commence to correct such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure default within said thirty (30) day period and thereafter diligently prosecute the correction of same to completion within a reasonable time and continuously proceeds in any event prior to cure the time a failure to complete such failurecorrection could cause Landlord to be subject to prosecution for violation of any law, rule, ordinance or regulation or causes, or could cause, a default under any mortgage, underlying lease, tenant leases or other agreements applicable to the Project. The provisions of any notice given pursuant to the foregoing will be in lieu of, and not in addition to, any notice required under applicable law (including, without limitation, California Code of Civil Procedure Section 1161 regarding unlawful detainer actions and any successor statute or similar law)
13.2. If an Event of Default occurs, Landlord shall have the right at any time to give a written termination notice to Tenant and, on the date specified in such notice, Tenant's right to possession shall terminate and this Lease shall terminate. Upon such termination, Landlord shall have the right to recover from Tenant:
A. The worth at the time of award of all unpaid Base Rent and Additional Rent which had been earned at the time of termination;
vii) B. The levy upon execution or worth at the attachment by legal process time of award of the leasehold interest amount by which all unpaid Base Rent and Additional Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided;
C. The worth at the time of award of the amount by which all unpaid Base Rent and Additional Rent for the balance of the term of this Lease after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and
D. All other amounts necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform all of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s 's obligations under this Lease or for a major part which in the ordinary course of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for things would be likely to result therefrom. The "worth at the relief time of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any award" of the other covenants, terms or conditions hereof more than three amounts referred to in clauses (3a) times, and (b) above shall be computed by allowing interest at the Interest Rate. The "worth at the time of award" of the amount referred to in clause (c) above shall be computed by discounting such amount at the aggregate, in any period discount rate of twelve the Federal Reserve Bank of San Francisco at the time of award plus one percent (12) consecutive months.
b. Upon 1%). Notwithstanding the occurrence of an Event of Default, pursuant to California Civil Code Section 1951.4, or any successor statute thereof, Landlord agrees may continue this Lease in effect after Tenant's breach and abandonment and recover all rent as it becomes due, if Tenant has the right to use sublet or assign, subject only to reasonable restrictions. Acts of maintenance or preservation or efforts to mitigate its damages, but relet the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord's interest under this Lease shall have the option not constitute a termination of Tenant's right to do and perform any one or more possession unless written notice of the following termination is given by Landlord to Tenant. The remedies provided for in this Lease are in addition to, and not in limitation of, any to all other remedy or right permitted it by remedies available to Landlord at law or in equity by statute or by this Lease:otherwise.
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter 13.3. No agreement to accept a surrender of the Premises and correct no act or repair any condition which omission by Landlord or Landlord's agents during the Term shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, an acceptance or abide by any term, condition, covenant, agreement, or obligation surrender of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand the Premises unless made in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt signed by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such No re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or taking possession of the Premises by Tenant and Landlord shall not of itself constitute a termination of an election by Landlord to terminate this Lease by Landlordunless a written notice of such intention is given to Tenant.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs 13.4. No provision of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt waived by Tenant Landlord unless such waiver is in writing and signed by Landlord. Landlord's acceptance of written notice Rent following an Event of Default hereunder shall not be construed as a waiver of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord Event of Default. No custom or practice which may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages arise between the parties in rentals, costs, charges, additional rentals, and reimbursements, connection with the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term terms of this Lease over the then reasonable rental value shall be construed to waive or lessen Landlord's right to insist upon strict performance of the Premises for the remainder of the term terms of this Lease, without a written notice thereof to Tenant from Landlord.
13.5. The rights granted to Landlord in this Article 13 shall be cumulative of every other right or (B) the rents and other charges remedy provided in this Lease or which Landlord would be entitled may otherwise have at law or in equity or by statute, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to receive from Landlord by reason of any Event of Default under this Lease. Tenant pursuant agrees to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made pay to Landlord all costs and expenses incurred by Landlord in the enforcement of this Lease, including all attorneys' fees incurred in connection with the collection of any sums due hereunder or the enforcement of any right or remedy of Landlord.
13.6. Landlord will not be in default in the performance of any obligation required to be performed by serving written notice upon Tenant of its choice of one of the two said alternatives Landlord under this Lease unless Landlord fails to perform such obligation within thirty (30) days after the receipt of written notice from Tenant specifying in detail Landlord's failure to perform; provided however, that if the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election nature of Landlord's obligation is such that more than thirty (30) days are required for performance, then Landlord will not be exercised alternativelydeemed in default if it commences such performance within such thirty (30) day period and thereafter diligently pursues the same to completion. Upon any default by Landlord, successively, or in Tenant may exercise any other manner and are in addition to any other of its rights provided for or allowed by at law or in equity.
vii, subject to the limitations on liability set forth in Section 25.5 of this Lease; provided, however: (a) No act Tenant shall have no right to offset or ▇▇▇▇▇ Rent in the event of any default by Landlord with respect under this Lease, except to the Premises extent offset rights are specifically provided to Tenant in this Lease; (b) Tenant shall have no right to terminate this Lease, including, but not ; (c) Tenant's rights and remedies hereunder shall be limited to, acceptance of to the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that extent (i) Tenant has expressly waived in this Lease may only any of such rights or remedies and/or (ii) this Lease otherwise expressly limits Tenant's rights or remedies; and (d) in no event shall Landlord be terminated by express written notice from Landlord to Tenant, and any reletting liable for consequential damages or loss of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantbusiness profits.
Appears in 1 contract
Default and Remedies. a. The occurrence If Tenant shall (i) fail to pay any installment of Monthly Base Rent, although no legal or formal demand has been made therefor, within five (5) calendar days after the due date therefor, or (ii) fail to make any payment of Additional Rent or any other payment required by the terms and provisions hereof, within five (5) days after notice or demand therefor; or (iii) convey, assign, mortgage or sublet this Lease, the Premises or any part thereof, or Tenant's interest therein, or attempt any of the following shall constitute foregoing, without the prior written consent of Landlord; or (iv) abandon the Premises for a default under and breach period of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises consecutive calendar days; or (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant commit or suffer to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty exist an Event of Bankruptcy (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Leasehereinafter defined), or (Bvi)fail to maintain the insurance coverage required by Section 12, above, or (vii) against Tenant violate or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented fail to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other terms, conditions, covenants, terms or conditions agreements herein made by Tenant and fails to cure such default within fifteen (15) calendar days after notice, provided, however, that if the nature of Tenant's failure is such that more than fifteen (15) days are reasonably required for its cure, then Tenant shall not be in default if it begins such cure within the fifteen (15) day period described above and thereafter diligently prosecutes such cure to completion within an additional fifteen (15) days; then there shall be deemed to have been committed an "Event of Default". Notwithstanding the foregoing cure periods, in the event that Tenant breaches its covenant set forth in Section 6.a. hereof on more than two (2) occasions in any twelve (12) consecutive month period, or on more than three (3) timesoccasions in any twenty-four (24) consecutive month period, then any subsequent breach of such covenant during the Term of this Lease shall be deemed to be an immediate Event of Default. Upon such immediate Event of Default, at Landlord's option, this Lease shall terminate without prejudice, however to the right of Landlord to recover from Tenant all rent and any other sums accrued up to the later of: (a) the date of termination of this Lease or (b) the date Landlord recovers possession of the Premises, and without release of Tenant from any indemnification obligations to Landlord under this Lease, which indemnification obligations arose or accrued prior to the later oft (a) the date of termination of this Lease or (b) the date Landlord recovers possession of the Premises. The foregoing is not intended to, and shall not, limit Landlord in the aggregateexercise of any other remedy for such immediate Event of Default.
b. In the event of any Event of Default by Tenant as defined in ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ may at any time thereafter, without notice and demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default or breach do any of the following:
(i) Landlord may terminate this Lease, by giving written notice of such termination to Tenant, whereupon this Lease shall automatically cease and terminate and Tenant shall be immediately obligated to quit the Premises. Any other notice to quit or notice of Landlord's intention to re-enter the Premises is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant all rent and any other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later.
(ii) With or without the termination of this Lease, Landlord may proceed to recover possession of the Premises under and by virtue of the provisions of the laws of the jurisdiction in which the Building is located, or by such other proceedings, including re-entry and possession, as may be applicable. If this Lease is terminated or Landlord recovers possession of the Premises before the expiration of the Term by reason of Tenant's default as hereinabove provided, or if Tenant shall abandon or vacate the Premises before the Lease Expiration Date without having paid the full rental for the remainder of such Term, Landlord shall have the option to take reasonable steps to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if the full rental reserved under this Lease (and any of the costs, expenses or damages indicated below) shall not be realized by Landlord, Tenant shall be liable for all damages sustained by Landlord, including without limitation deficiency in rent during any period of twelve (12) consecutive monthsvacancy or otherwise; the costs of removing and storing the property of Tenant or of any other occupant; the then-remaining unamortized portion of the Improvement Allowance described in the Work Agreement; all reasonable expenses incurred by Landlord in enforcing Landlord's remedies, including without limitation reasonable attorneys' fees and Late Charges as provided herein, and advertising, brokerage fees and expenses of placing the Premises in first class rentable condition. Landlord, in putting the Premises in good order or preparing the same for rerental may, at Landlord's option, make such alterations, repairs, or replacements in the Premises as Landlord, in its sole judgment, considers advisable and necessary for the purpose of reletting the Premises, and the making of such alterations, repairs, or replacements shall not operate or be construed to release Tenant from liability hereunder as aforesaid.
b. (iii) Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at Landlord's option, at the time of termination of this Lease, the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord's option in a single proceeding deferred until the expiration of the Term (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior to either the time of reletting or the expiration of the Term. If the Landlord elects to repossess the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such repossession, plus Rent required to be paid by Tenant to Landlord during the remainder of this Lease until the date of expiration of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period (after deducting expenses incurred by Landlord as provided in Section 16.b.(ii), above). In no event shall Tenant be entitled to any excess of any Rent obtained by reletting over and above the Rent herein reserved. Actions to collect amounts due from Tenant as provided in this Section 16(a)(iii) may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of this Lease term. Upon termination of this Lease or repossession of the Premises following a default hereunder, Landlord shall have no obligation to relet or attempt to relet the Premises or any portion thereof or to collect rental after reletting; and in the event of reletting Landlord may relet the whole or any portion of the Premises for any period, to any tenant, and for any use and purpose on such terms and at such rentals as Landlord in its exclusive judgment may determine.
c. Notwithstanding the foregoing, if Landlord terminates this Lease pursuant to Section 16.b.(i), above, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default, an amount equal to the difference between (i) all Monthly Base Rent, Additional Rent and other sums which would t>e payable under this Lease from the date of such demand (or, if it is earlier, the date to which Tenant shall have satisfied in full its obligations under Section 16b(ii), above) for what would be the then unexpired Term in the absence of such termination, and (ii) the fair market rental value of the Premises over the same period (net of all expenses and all vacancy periods reasonably projected by Landlord to be incurred in connection with the reletting of the Premises), with such differential discounted at the rate of five percent (5%) per annum. Nothing herein shall be construed to affect or prejudice Landlord's right to prove, and claim in full, unpaid Rent or any other amounts accrued prior to termination of this Lease.
d. Notwithstanding anything herein to the contrary, upon the occurrence of an Event of DefaultDefault hereunder, Landlord agrees to use reasonable efforts to mitigate its damagesLandlord, but shall have with or without terminating the option to do Lease, may immediately reenter and perform any one or more take possession of the following Premises and evict Tenant therefrom, without legal process of any kind, using such force as may be necessary, without being liable for or guilty of trespass, forcible entry or any other tort. Landlord's right to exercise such "self-help" remedy shall be in addition to, and not in limitation of, any . Landlord's other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises rights and correct or repair any condition which shall constitute remedies hereunder for a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt breach by Tenant of such notice from Landlord, whereupon Landlord shall have its obligations under the right to re-enter and take possession of the PremisesLease.
iii) Landlord, with or without terminating this Lease, may immediately or at e. Tenant hereby expressly waives any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to rights of redemption granted by or placed on under any present of future laws in the Premises by, at the direction ofevent Tenant is evicted or dispossessed for any cause, or with consent of Tenant. Any such re-entry and removal by in the event Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering obtains possession of the Premises, by reason of the cost violation by Tenant of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents covenants and other charges to be paid by Tenant for the remainder of the term conditions of this Lease over or otherwise. In addition, Tenant hereby expressly waives any and all rights to bring any action whatsoever against any tenant taking possession after Tenant has been dispossessed or evicted hereunder, or to make any such tenant or party to any action brought by Tenant against Landlord.
f. Landlord and Tenant shall and each does hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the then reasonable rental value parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Lease or its termination, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises or any claim of injury or damage and any emergency statutory or any other statutory remedy. In the event Landlord commences any summary proceeding for the remainder nonpayment of the term of Rent or Additional Rent, or commences any other action or proceeding against Tenant in connection with this Lease, Tenant will interpose no counterclaim of whatever nature or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or description in any other manner and are in addition to any other rights provided for or allowed by law or in equitysuch proceeding.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Deed of Lease (Eurotech LTD)
Default and Remedies. a. The following events shall be deemed to be events of default by Tenant under this Lease:
(a) Tenant shall fail to pay when due any sum of money becoming due to be paid to Landlord hereunder, whether such sum be any installment of the rent herein reserved, any other amount treated as additional rent hereunder, or any other payment or reimbursement to Landlord required herein, whether or not treated as additional rent hereunder, and such failure shall continue for a period of five (5) days from the date such payment was due; provided, however, that with respect to the first occurrence of a failure to pay during any consecutive twelve (12) month period during the Lease Term, such failure shall not constitute an event of the following shall constitute a default under and breach this Lease unless such failure shall continue for a period of five (5) days after written notice from Landlord to Tenant of such failure; or
(b) Tenant shall fail to comply with any term, provision or covenant of this Lease other than by Tenant failing to pay when or before due any sum of money becoming due to be paid to Landlord hereunder, and shall not cure such failure within (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts twelve (including Base Rental and Additional Rental12) due hereunder within ten (10) days following hours after written notice of non-payment from Landlord to Tenant;
Tenant if the failure involves a condition hazardous or dangerous to life or property or (ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after written notice to Tenant in the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform case of any other non-monetary covenantfailure (or, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for in the time reasonably required to complete such cure, if such event the failure cannot reasonably be cured within said twenty (20)-day period, and provided Tenant commences such cure within said twenty (20)-day period and thereafter diligently pursues such cure to completion, within such reasonable period of time (not to exceed ninety (90) days) necessary to cure such failure); or
(c) Tenant shall abandon or vacate any substantial portion of the Premises for at least thirty (30) day period and consecutive days; or
(d) Tenant commences shall create or allow to cure be created in or about the demised Premises any condition or circumstance constituting a hazard to people or property, a nuisance, a trespass, or other condition offensive to Landlord or others, whether or not such failure within said thirty condition or circumstance rises to the level of a civil or criminal law violation or action; or
(30e) day period and thereafter diligently and continuously proceeds Tenant shall fail to cure such failurevacate the Premises immediately upon termination of this Lease, by lapse of time or otherwise, or upon termination of Tenant's right to possession only;
vii(f) The levy If, in spite of the provisions hereof, the interest of Tenant shall be levied upon under execution or the attachment be attached by legal process of law or Tenant shall fail to contest diligently the leasehold interest validity of Tenantany lien or claimed lien and give sufficient security to Landlord to insure payment thereof or shall fail to satisfy any judgment rendered thereon and have the same released, or the filing or creation of a lien in respect of and such leasehold interest, which lien default shall not be released or discharged within thirty continue for ten (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (6010) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of written notice thereof to Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi(g) Tenant’s repeated failure to observe Tenant shall assign, sublet or perform any transfer its interest hereunder in violation of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. this Agreement. Upon the occurrence of an Event any such events of Defaultdefault described in this paragraph or elsewhere in this Lease, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform pursue any one or more of the following in addition toremedies without any notice or demand whatsoever:
(aa) Landlord may, at its election, terminate this Lease or terminate Tenant's right to possession only, without terminating the Lease.
(bb) Upon any termination of this lease, whether by lapse of time or otherwise, or upon any termination of Tenant's right to possession without termination of the Lease, Tenant shall surrender possession and vacate the Premises immediately, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) deliver possession thereof to Landlord, and Tenant hereby grants to Landlord full and free license to enter into and upon the Premises in such event with or without terminating this Lease, may immediately or at any time thereafter re-enter process of law and to repossess the Premises and correct to expel or repair remove Tenant and any condition which shall constitute a failure on Tenant’s part others who may be occupying or within the Premises and to keepremove any and all property therefrom, observewithout being deemed in any manner guilty of trespass, performeviction or forcible entry or detainer, satisfyand without incurring any liability for any damage resulting therefrom; Tenant hereby waiving any right to claim damage for such reentry and expulsion, and without relinquishing Landlord's right to rent or abide any other right given to Landlord hereunder or by any term, condition, covenant, agreement, or obligation operation of law.
(cc) Upon termination of this Lease, whether by lapse of time, by or in connection with a dispossessory proceeding or otherwise, Landlord shall be entitled to recover as Landlord's actual accrued damages, all rent, including any amount treated as additional rent hereunder, and Tenant shall fully reimburse other sums due and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt payable by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all termination, plus, as Landlord's liquidated damages for the balance of the Premises, stated term hereof and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant not as a forfeiture or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursementspenalty, the cost sum of: (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (Ai) an amount equal to the excess, if any, then present value of the total amount of all rents rent, including any amounts treated as additional rent hereunder, and other charges sums provided herein to be paid by Tenant for the remainder residue of the stated term of this Lease over hereof, less the then reasonable fair rental value of the Premises for such residue (taking into account the remainder of the term of this Leasetime and expenses necessary to obtain a replacement tenant or tenants, or including expenses hereinafter described in subparagraph (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.dd)
Appears in 1 contract
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default under and breach "events of this Lease by Tenant default":
(an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts The Base Rental (including Base Rental any additional rent) or any other sum of money payable under this Lease, or both, is not paid when due and Additional Rental) due hereunder within ten after five (105) days following written notice of non-payment from Landlord to Tenant;
(ii) Abandonment of The Premises are deserted, vacated, or not used regularly or consistently as would normally be expected for similar premises put to general office use, even though the Tenant continues to pay the stipulated monthly Base Rental;
(iii) Tenant's interest in the Lease or the Premises shall be subjected to any attachment, levy, or sale pursuant to any order or decree entered against Tenant in any legal proceeding and such order or decree shall not be vacated within fifteen (defined as any period 15) days of one hundred and eighty entry thereof; or
(180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant breaches or fails to cure forthwithcomply with any term, immediately after receipt of notice from Landlordprovision, any hazardous condition which Tenant has created condition, or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision covenant of this Lease, if such failure shall continue other than the payment of Base Rental and other charges, or with any of the Rules and Regulations now or hereafter established from time to time by Landlord to govern the operation of the Building, and the same continues for thirty (30) days after written notice thereof from Landlord to Tenant; provided that specifying such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failuredefault;
vii(b) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event event of Defaultdefault, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter reenter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s 's part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease or of the Rules and Regulations now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, Landlord on demand.;
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter reenter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry demand, reentry and removal taking possession of the Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord;
(iii) [Intentionally Deleted.]
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting, including, but not limited to, the cost of any such alterations and repairs to the Premises, attorneys' fees, and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter thereafter, Tenant shall pay monthly during the remainder of the term of this Lease the differencedifferences, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.;
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination termination, including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements"Tenant Improvements" (as such term is defined in the Prior Lease) which are not utilized by future tenants, all arrearages arrearage in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ ' fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminatedreletting. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi(c) If Landlord reenters the Premises or terminates this Lease pursuant to any of the provisions of this Lease, Tenant hereby waives all claims for damages which may be caused by such reentry or termination by Landlord. Tenant shall and does hereby indemnify and hold Landlord harmless from any costs (including court costs and attorneys' fees), suffered by Landlord by reason of such reentry or termination. No such reentry or termination shall be considered or construed to be a forcible entry.
(d) No course of dealing between Landlord and Tenant or any failure or delay on the part of Landlord in exercising any rights of Landlord under this Paragraph 9.1 or under any other provisions of this Lease shall operate as a waiver of any rights of Landlord hereunder or under any other provisions of this Lease, nor shall any waiver of a default on one occasion operate as a waiver of any subsequent default or of any other default. No express waiver shall affect any condition, covenant, rule, or regulation other than the one specific in such waiver and that one only for the time and in the manner specifically stated.
(e) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, Landlord be exercised alternatively, successively, or in any other manner except where such remedies are mutually exclusive as a matter of law and except as otherwise provided hereunder are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. 18.1 The occurrence of any one or more of the following shall constitute a default under and breach of this Lease by Tenant events (each an “Event of Default”):) shall constitute a breach of this Lease by Lessee:
i(a) Failure by Tenant Lessee fails to pay any monetary amounts Base Monthly Rent or additional rent under this Lease as and when it becomes due and payable and such failure continues for more than five (including Base Rental and Additional Rental) due hereunder within ten (105) days following after written notice of non-payment from Landlord to Tenant;Lessee that such payments are overdue; or
ii(b) Abandonment of the Premises (defined as Lessee fails to perform or breaches any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe other express or perform any of the covenants in respect of assignment and subletting implied covenant of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required Lease to be completed, executed performed or observed by Lessee as and delivered by Tenant within when performance or observance is due and such failure or breach continues for more than twenty (20) days after the initial Lessor gives written demand for same notice thereof to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenantLessee; provided, agreementhowever, condition or provision of this Lease, that if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure or breach cannot reasonably be cured within said thirty such period of twenty (3020) day period days, an Event of Default shall not exist as long as Lessee commences with due diligence and Tenant commences to cure dispatch the curing of such failure or breach within said thirty such period of ten (3010) day period and days and, having so commenced, thereafter prosecutes diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or and completes the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect curing of such leasehold interest, which lien shall failure or breach within a reasonable time not be released or discharged within thirty to exceed ninety (3090) days from such notice from Lessor; or
(c) Lessee files, or consents by answer or otherwise to the date of such filing;
viii) Tenant filing against it of, a petition for relief or reorganization or arrangement or any guarantor other petition in bankruptcy or for liquidation or to take advantage of Tenant’s obligations under this Lease becomes insolvent any bankruptcy, insolvency or bankrupt or admits in writing its inability to pay its debts as they mature, or other debtors’ relief law of any jurisdiction; makes an assignment for the benefit of its creditors, or applies for ; or consents to the appointment of a custodian, receiver, trustee or receiver other officer with similar powers of Lessee or of any substantial part of Lessee’s property; or
(d) A court or government authority enters an order, and such order is not vacated within thirty (30) days, appointing a custodian, receiver, trustee or other officer with similar powers with respect to Lessee or with respect to any substantial part of Lessee’s property; or constituting an order for relief or approving a petition for relief or reorganization or arrangement or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy, insolvency or other debtors’ relief law of any jurisdiction; or ordering the dissolution, winding-up or liquidation of Lessee.
(e) Lessee fails to surrender the 48710 Building within ninety (90) days after the Commencement Date and such failure continues for more than one (1) business day after Lessor gives written notice thereof to Lessee.
18.2 If an Event of Default occurs other than pursuant to Section 18.1(e) above, Lessor shall have the right, in addition to any other remedies available to Lessor under this Lease, at any time to give a written termination notice to Lessee and, on the date specified in such notice, Lessee’s right to possession shall terminate and this Lease shall terminate. Upon such termination, Lessor shall have the right to recover from Lessee:
(i) The worth at the time of award of all unpaid rent which had been earned at the time of termination;
(ii) The worth at the time of award of the amount by which all unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Lessee proves could have been reasonably avoided;
(iii) The worth at the time of award of the amount by which all unpaid rent for the balance of the term of this Lease after the time of award exceeds the amount of such rental loss that Lessee proves could be reasonably avoided; and
(iv) All other amounts necessary to compensate Lessor for all or a major part the detriment proximately caused by Lessee’s failure to perform all of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of TenantLessee’s obligations under this Lease or for a major part which in the ordinary course of either party’s property things would be likely to result therefrom. The “worth at the time of award” of the amounts referred to in clauses (i) and is not discharged within sixty (60ii) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar above shall be computed by allowing interest at the maximum annual rate allowed by law for business loans (not primarily for personal, family or household purposes) not exempt from the relief usury law at the time of debtorstermination or, if there is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after no such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises bymaximum annual interest rate, at the direction of, or with consent rate of Tenant within ten eighteen percent (1018%) days per annum. The “worth at the time of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession award” of the Premises.
amount referred to in clause (iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, above shall be computed by discounting such amount at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or discount rate of the Premises by Tenant Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). For the purpose of determining unpaid rent under clauses (i), (ii) and shall not of itself constitute a termination of this Lease by Landlord.
iv(iii) Landlordabove, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of be the total amount of all rents and other charges to be paid rent payable by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of Lessee under this Lease, or (B) the rents including Base Monthly Rent, additional rent and all other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made sums payable by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate Lessee under this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Triple Net Lease (Exar Corp)
Default and Remedies. a. The occurrence A. Each of the following shall be deemed an event of default by Borrower (each, an "Event of Default"):
(1) If any representation or warranty of any of the following shall constitute a default Borrower Parties set forth in any of the Loan Documents is false in any material respect when made, or if any of the Borrower Parties renders any statement or account which is false in any material respect.
(2) If any principal, interest or other monetary sum due under and breach the Note, the Mortgage or any other Loan Document is not paid within five days after the date when due; provided, however, notwithstanding the occurrence of this Lease by Tenant (such an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien Lender shall not be released or discharged within thirty (30) entitled to exercise its rights and remedies set forth below unless and until Lender shall have given Borrower notice thereof and a period of five days from the date delivery of such filing;notice shall have elapsed without such Event of Default being cured.
viii(3) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure If Borrower fails to observe or perform any of the other covenants, terms conditions, or conditions hereof more than three (3) timesobligations of this Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is within the aggregatereasonable power of Borrower to promptly cure after receipt of notice thereof, all as determined by Lender in any period of twelve (12) consecutive months.
b. Upon the occurrence of its reasonable discretion, then such failure shall not constitute an Event of DefaultDefault hereunder, Landlord agrees to use reasonable efforts to mitigate its damagesunless otherwise expressly provided herein, but unless and until Lender shall have the option to do given Borrower notice thereof and perform any one or more a period of the following in addition to30 days shall have elapsed, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, during which period Borrower may immediately or at any time thereafter re-enter the Premises and correct or repair any condition cure such failure, upon failure of which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation an Event of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease Default shall be deemed to have been terminated upon receipt occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within such 30-day period, as determined by Tenant Lender in its reasonable discretion, and Borrower is diligently pursuing a cure of written such failure, then Borrower shall have a reasonable period to cure such failure beyond such 30-day period, which shall not exceed 90 days after receiving notice of the failure from Lender. If Borrower shall fail to correct or cure such termination; upon failure within such termination Landlord 90-day period, an Event of Default shall recover from Tenant all damages Landlord may suffer by reason be deemed to have occurred hereunder without further notice or demand of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost any kind being required.
(including court costs and attorneys’ fees4) of recovering possession If any of the PremisesBorrower Parties becomes insolvent within the meaning of the Code, files or notifies Lender that it intends to file a petition under the cost Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action, or is not generally paying its debts as the same become due.
(5) If there is an "Event of Default" or a breach or default, after the passage of all applicable notice and cure or grace periods, under any alteration other Loan Document, or any of or repair to the Other Agreements.
(6) If a final, nonappealable judgment is rendered by a court against any of the Borrower Parties which (i) has a material adverse effect on the operation of the Premises which as a Permitted Concept, or (ii) is necessary or proper to prepare the same for reletting in an amount greater than $100,000.00 and not covered by insurance, and, in addition theretoeither case, Landlord at its election shall have and recover is not discharged or provision made for such discharge within 60 days from Tenant either (A) an amount equal to the excess, if any, date of the total amount entry of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationsuch judgment.
vi(7) The exercise by Landlord of any one or more of If Parent Company shall fail to maintain the rights and remedies provided Corporation Fixed Charge Coverage ratio covenant set forth in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.Section 6.J.
Appears in 1 contract
Sources: Loan Agreement (Kona Grill Inc)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant Tenant: (an “Event of Default”):
i) Failure the filing of any voluntary petition or similar pleading under any section or sections of any bankruptcy or insolvency act by or against Tenant or the institution of any voluntary or involuntary proceeding in any court or tribunal to declare Tenant insolvent or unable to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they maturemature and, in the case of an involuntary petition or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, the petition or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institutionfrom the date it is filed, or the making of an assignment for the benefit of its creditors by Tenant, or the appointment of a trustee or receiver for Tenant or for the major part of Tenant’s property; or
xi(ii) Tenant’s repeated failure to observe pay the monthly Base Rental, Additional Rent or any other sum due hereunder, or portion thereof, if such nonpayment continues for five (5) or more days after receipt of notice that the same is past due; (iii) Tenant’s default in the prompt and full performance of any other provision of this Lease that Tenant continues to fail to perform fully within thirty (30) days after written demand by Landlord that the default be cured (unless the default involves a condition dangerous to person or property, or which will become worse if no immediate action is taken to cure such default, in which event such default shall be cured forthwith upon Landlord’s demand); provided, however, if any such non-monetary default is of the other covenantsa nature that it cannot reasonably be cured within such 30-day period, terms or conditions hereof then so long as Tenant promptly and in good faith commenced to cure such default within such 30-day period and diligently and continuously pursues such cure to completion thereafter, then Tenant’s cure period under this (iii) will be extendable by no more than three a total of ninety (390) times, in days following Tenant’s receipt of Landlord’s default notice; and/or (iv) Tenant shall do or permit to be done anything that creates a lien upon the aggregate, in any period of twelve (12) consecutive monthsPremises or the Building.
b. Upon the occurrence of an Event of Defaultany default by Tenant as aforesaid, Landlord agrees Landlord, in addition to use reasonable efforts to mitigate its damagesany and all other rights or remedies it may have at law or in equity, but shall have the option to do and perform of pursuing any one or more of the following in addition toremedies:
i. Landlord shall have the immediate right of reentry, without judicial process, and not in limitation may remove all property from the Premises to a warehouse or elsewhere, at the cost of, and for the account of Tenant, all without being deemed guilty of trespass or constructive eviction or becoming liable for any other remedy loss or right permitted it damages which may be occasioned thereby;
ii. Landlord may terminate this Lease by law or giving notice of termination, in equity or by which event this Lease shall expire and terminate on the date specified in such notice of termination, with the same force and effect as though the date so specified were the date herein originally fixed as the expiration date of the Term of this Lease:, and all rights of Tenant under this Lease and in and to the Premises shall expire and terminate, and Tenant shall remain liable for all obligations under this Lease arising up to the date of such termination, and Tenant shall voluntarily surrender the Premises to Landlord on the date specified in such notice without the necessity of judicial process;
iiii. Landlord recover from Tenant any and all damages Landlord may incur by reason of Tenant’s default, including, without limitation, a sum which, should the Lease be terminated, at the date of such termination, represents the then present value (calculated at the discount rate of twelve percent (12%) Landlordinterest per annum) of the Base Rental (including without limitation, increases in Base Rental pursuant to Section 11 hereof), Additional Rent, and all other sums which would have been payable hereunder by Tenant for the period commencing with or the day following the date of such termination and ending with the date hereinbefore set for the expiration of the full Term hereby granted, which sum shall be deemed immediately due and payable;
iv. Landlord may, from time to time without terminating this Lease, may immediately and without releasing Tenant in whole or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on in part from Tenant’s part obligation to keeppay Base Rental, observeAdditional Rent and all other amounts due under this Lease and perform all of the covenants, performconditions, satisfy, or abide and agreements to be performed by any term, condition, covenant, agreement, or obligation of Tenant provided in this Lease, make such alterations and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging repairs as necessary to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of relet the Premises.
iii) Landlord, with or without terminating this Leaseand, may immediately or at any time thereafterafter making such alterations and repairs, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises byLandlord may, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord but shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlordbe obligated to, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, term (which may be for a term extending beyond the Term of this Lease) at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisableadvisable or acceptable; upon each reletting, all rentals received by Landlord from such reletting to be applied as determined by Landlord in its sole discretion, but not in all events last applied against payments of future Base Rental, Additional Rent or other charges that are not yet due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord may make over and above charges that Tenant is obligated to pay hereunder, including Base Rental, Additional Rent and all other charges; if such rentals received from such reletting during any alterations or repairs month are less than those to be paid during the Premises which it may deem necessary or proper to facilitate such reletting; month by Tenant hereunder, including Base Rental, Additional Rent and all other charges, Tenant shall pay all reasonable costs any such deficiency to Landlord, which deficiency shall be calculated and paid monthly, unless Landlord secures a judgment for the aggregate deficiency for the balance of such reletting; and if this Lease shall not have been terminated, the Term from a court of competent jurisdiction. Tenant shall continue to also pay Landlord as soon as ascertained and upon demand all rent costs and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended expenses incurred by Landlord for leasing commissions in connection with such reletting and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, making any alterations and reimbursements, repairs which are not covered by the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for rentals received from such reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance brokers’ commissions, tenant improvements, tenant allowances, and attorneys’ fees; notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
c. All sums past due from Tenant under this Lease shall bear interest at eighteen percent (18%) per annum (the “Default Rate”), but in no event in excess of the keysmaximum lawful rate, institution from due date until paid in full.
d. Tenant shall and hereby agrees to pay all costs and expenses incurred by Landlord in enforcing any of the covenants and agreements of this Lease and as a result of an action brought by Landlord against Tenant including, without limitation, for an unlawful detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises should Tenant fail or refuse to voluntarily surrender possession of the Premises as required by this Lease, and all such costs, expenses and reasonable attorneys’ fees shall be presumed paid by Tenant to be Landlord within fifteen (15) days after Landlord’s written demand therefor, together with interest at the Default Rate if not paid in such 15-day period, which interest shall accrue from the date Landlord incurred liability for such cost, expense, and/or reasonable attorneys’ fees.
e. In the event of a default hereunder beyond applicable periods of notice and on behalf cure, if any, Landlord may declare Tenant in default under any or all other agreements between Landlord and Tenant or any affiliate of Tenant, and not Landlord, unless Landlord expressly provides otherwise whether in writing to Tenanteffect now or following the date of this Lease.
Appears in 1 contract
Sources: Office Lease Agreement (Surgical Care Affiliates, Inc.)
Default and Remedies. a. The occurrence (A) If Tenant defaults in the payment of Basic Rent or any Additional Rent and fails to cure the default within fifteen (15) days after same is due, or if Tenant defaults in compliance with any of the following shall constitute a default under and breach other covenants or conditions of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant the same within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after the receipt of notice specifying the default, then at the expiration of such fifteen (15) days or thirty (30) days, as the case may be, Landlord may (a) cancel and terminate this Lease upon written notice thereof from Landlord to Tenant; Tenant (whereupon the Term shall terminate, and Tenant shall then quit and surrender the premises to Landlord, but Tenant shall remain liable as hereinafter provided) and/or (b) at any time thereafter re-enter and resume possession of the premises as if this Lease had not been made, Tenant hereby waiving the service of any notice of intention of re-enter or to institute legal proceedings to that end. Anything above to the contrary notwithstanding, the said thirty (30) days for the period of time necessary to effect the cure provided that Tenant shall diligently commence the cure during such thirty (30) day period and shall be extended for diligently prosecute the time reasonably required cure to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;completion.
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under If this Lease shall be terminated or if Landlord shall be entitled to re-enter the premises and is allowed against it dispossess or is consented remove Tenant under the provisions of this Section (either or both of which events are hereinafter referred to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Defaultas a "Termination"), Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy Landlord's agents or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, servants may immediately or at any time thereafter re-enter the Premises premises and correct remove therefrom Tenant, its agents, employees, servants, licensees, and any subtenants and other persons, and all or repair any condition which shall constitute a failure on Tenant’s part to keepof its or their property therefrom, observe, perform, satisfy, either by summary dispossess proceedings or abide by any termsuitable action or proceeding at law or by peaceable re-entry or otherwise, conditionwithout being liable to indictment, covenantprosecution or damages therefor, agreementand may repossess and enjoy the premises, or obligation including all Alterations.
(C) In case of this LeaseTermination, the Basic Rent and all other charges required to be paid by Tenant hereunder shall thereupon become due and shall be paid by Tenant up to the time of the Termination, and Tenant shall fully reimburse also pay to Landlord all reasonable expenses which Landlord may then or thereafter incur as a result of or arising out of a Termination, including but not limited to court costs, reasonable attorneys' fees, brokerage commissions, and compensate Landlordcosts of terminating the tenancy of Tenant, re-entering, dispossessing or otherwise removing Tenant and restoring the premises to good order and condition, and from time to time altering and otherwise preparing the same for Landlord’s actual cost incurredre-letting. Upon a Termination, on demand.
ii) LandlordLandlord may (but shall not be obligated to), with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging from time to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereaftertime, re-enter let the Premises and remove therefrom Tenant and all property belonging to premises, in whole or placed on the Premises byin part, either in its own name or as Tenant's agent, for a term or terms which, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease's option, may immediately or at any time thereafter relet the Premises or any part thereof be for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term Term or for any longer or shorter period.
(D) In addition to the payments required hereinabove in this Section 19, Tenant shall pay to Landlord upon demand and at Landlord's option:
(i) liquidated damages in an amount which, at the time of this Lease Termination, is equal to the differenceexcess, if any, between of the rent then present amount of the installments of Basic Rent and other charges collected from any such subsequent tenant or tenants and Additional Rent reserved hereunder, for the rent and other charges reserved in this Leaseperiod which would otherwise have constituted the unexpired portion of the Term, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.then present rental value of the premises for such unexpired portion of the Term,
v(ii) Landlord may immediately or at any time thereafter terminate this Leasedamages (payable in monthly installments, in advance, on the first day of each calendar month following the Termination, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord continuing until the date originally fixed herein for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession expiration of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, Term) in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount sums of the aggregate expenses paid by Landlord during the month immediately preceding such calendar month for all rents and other charges such items as, by the terms of this Lease, are required to be paid by Tenant, plus an amount equal to the installment of Basic Rent which calendar month, had this Lease not been terminated, over the sum of such calendar month pursuant to a re-letting or to any holding over by any subtenants of Tenant.
(E) Landlord shall make a good faith attempt but in no event be liable for failure to mitigate or failure to re-let the premises, or in the event that the premises are re-let, for failure to collect rent due under such re-letting; and in no event shall Tenant be entitled to receive any excess or rents over the sums payable by Tenant to Landlord hereunder but such excess shall be credited to the unpaid rents due hereunder, and to the expense of re-letting and preparing for re-letting as provided herein.
(F) Suit or suits for the remainder recovery of damages hereunder, or for any installments of rent, may be brought by Landlord from time to time at its election, and nothing herein contained shall be deemed to require Landlord to postpone suit until the term of this Lease over date when the then reasonable rental value of Term would have expired if it had not been terminated under the Premises for the remainder of the term provisions of this Lease, or (B) under any provision of law, or had Landlord not re-entered into or upon the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationpremises.
vi(G) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and mayLandlord, at the election of Landlordits option, be exercised alternatively, successively, or in any other manner and are in addition to any and all remedies available to it, shall have the right to charge a fee for payment of Basic Rent and/or Additional Rent received later than ten (10) days after the date due, which fee shall be equal to five percent (51/6) per month applied to the amount of such overdue rent.
(H) Tenant hereby waives all rights of redemption to which Tenant or any person claiming under Tenant might be entitled, after an abandonment of the premises, after a surrender and acceptance of the premises and the Tenant's leasehold estate, after a dispossession of Tenant from the premises, after a termination of this Lease, after a judgment against Tenant in an action in ejectment, after the issuance of a final order or warrant of dispossess in a summary proceeding, or an any other rights provided for proceeding or allowed action authorized by any rule of law or statute now or hereafter in force or effect.
(I) No mention in this Lease of any specific right or remedy shall preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action to which Landlord may otherwise be entitled hereunder or at law or in equity.
vii(J) No act Should Tenant be adjudicated a bankrupt, insolvent or placed in receivership, or should proceedings be instituted by or against Tenant for bankruptcy, insolvency, receivership, agreement or composition or assignment for the benefit of creditors, or if this Lease or the estate of Tenant hereunder shall pass to another by virtue of any court proceedings, writ of execution, levy, sale or by operation of law, Landlord with respect to the Premises shall may, if Landlord so elects, at any time thereafter, terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord upon giving to Tenant, and or to any reletting trustee, receiver, assignee or other person in charge of or acting as custodian of the Premises assets or property of Tenant, five (5) days notice in writing of Landlord's intention to do so. Upon the giving of such notice, this Lease shall end on the date fixed in such notice as if such date were the date originally fixed in this Lease for the expiration hereof, and Landlord shall have the right to remove all persons, goods, fixtures and chattels therefrom by force or otherwise, without liability for damages.
(K) If Tenant shall be presumed to be for in default hereunder in any respect, Landlord may, at Landlord's option and without waiving its rights hereunder, cure such default on behalf of Tenant, and not in which event Tenant shall, promptly upon demand by Landlord, unless reimburse Landlord expressly provides otherwise for all expenses incurred by Landlord in writing effecting such cure, including but not limited to reasonable attorneys' fees, together with interest on such expenses at fifteen percent (15%) per annum. In order to collect such reimbursement, Landlord shall have all the remedies available under this Lease and/or by law or equity for a default in the payment of Rent. Tenant shall also be responsible for all court costs and reasonable attorneys' fees incurred by Landlord in connection with any default or threatened default by Tenant, the enforcement by Landlord of any covenant made by Tenant, and/or Landlord's exercise of any right of approval or consent as may be provided for hereunder, whether or not there shall be instituted any litigation or proceedings relating to this Lease.
Appears in 1 contract
Default and Remedies. a. The occurrence following events shall be deemed to be events of default by Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money becoming due to be paid to Landlord hereunder, whether such sum be any installment of the following rent herein reserved, any other amount treated as additional rent hereunder, or any other payment or reimbursement to Landlord required herein, whether or not treated as additional rent hereunder, and such failure shall constitute continue for a default under and breach period of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following after receipt of written notice of non-payment from Landlord; provided, however, notwithstanding the foregoing, Landlord shall not be required to give such notice to Tenant more than two (2) times in any calendar year with respect to Tenant;
ii) Abandonment of the Premises (defined as 's obligation to make any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of payment under this Lease, if and after Landlord shall have given two (2) such notices in any given calendar year, Tenant shall not be entitled to any notice or cure period for any subsequent default within with such calendar year; or
(b) Tenant shall fail to comply with any term, provision or covenant of this Lease other than by failing to pay when or before due any sum of money becoming due to be paid to Landlord hereunder, and such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord is given to Tenant; provided Tenant (provided, if the default is of a nature that such cannot be cured within thirty (30) day period days, no default shall be extended for the time reasonably required to complete such cure, occur if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to the cure within such failure within said thirty (30) day period and thereafter diligently and continuously proceeds pursues the same to cure conclusion within not more than ninety (90) days); or
(c) Tenant shall fail to take occupancy of the Premises or shall abandon the Premises during the first thirty-six (36) months of the Lease Term; or
(d) Tenant shall create or allow to be created in or about the demised Premises any condition or circumstance constituting a hazard to people or property, a nuisance, a trespass, or other condition offensive to Landlord or others, whether or not such failurecondition or circumstance rises to the level of a civil or criminal law violation or action; or
(e) Tenant shall fail to vacate the Premises immediately upon termination of this Lease, by lapse of time or otherwise, or upon termination of Tenant's right to possession only;
vii(f) The levy If, in spite of the provisions hereof, the interest of Tenant shall be levied upon under execution or the attachment be attached by legal process of law or Tenant shall fail to contest diligently the leasehold interest validity of Tenantany lien or claimed lien and give sufficient security to Landlord to insure payment thereof or shall fail to satisfy any judgment rendered thereon and have the same released, or the filing or creation of a lien in respect of and such leasehold interest, which lien default shall not be released or discharged within thirty continue for ten (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (6010) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of written notice thereof to Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi(g) Tenant’s repeated failure to observe Tenant shall assign, sublet or perform any transfer its interest hereunder in violation of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. this Agreement. Upon the occurrence of an Event any such events of Defaultdefault described in this paragraph or elsewhere in this Lease, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform pursue any one or more of the following in addition to, and not in limitation of, remedies without any other remedy notice or right permitted it by law or in equity or by this Leasedemand whatsoever:
(i) LandlordLandlord may, with at its election, terminate this Lease or terminate Tenant's right to possession only, without terminating this the Lease, may immediately or at .
(ii) Upon any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation termination of this Lease, whether by lapse of time or otherwise, or upon any termination of Tenant's right to possession without termination of the Lease, Tenant shall surrender possession and vacate the Premises immediately, and deliver possession thereof to Landlord, and Tenant shall fully reimburse hereby grants to Landlord full and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, free license to enter into and upon the Premises in such event with or without terminating process of law and to repossess the Premises and to expel or remove Tenant and any others who may be occupying or within the Premises and to remove any and all property therefrom, without being deemed in any manner guilty of trespass, eviction or forcible entry or detainer, and without incurring any liability for any damage resulting therefrom; Tenant hereby waiving any right to claim damage for such reentry and expulsion, and without relinquishing Landlord's right to rent or any other right given to Landlord hereunder or by operation of law.
(iii) Upon termination of this Lease, may immediately whether by lapse of time, by or at in connection with a dispossessory proceeding or otherwise, Landlord shall be entitled to recover as Landlord's actual accrued damages, all rent, including any time thereafter demand in writing that amount treated as additional rent hereunder, and other sums due and payable by Tenant vacate on the date of termination, plus, as Landlord's liquidated damages for the balance of the stated term hereof and not as a forfeiture or penalty, the sum of: (a) an amount equal to the then present value of the rent, including any amounts treated as additional rent hereunder, and other sums provided herein to be paid by Tenant for the residue of the stated term hereof, less the fair rental value of the Premises for such residue (taking into account the time and thereupon Tenant shall vacate expenses necessary to obtain a replacement tenant or tenants, including expenses hereinafter described in subparagraph (iv)(B) relating to recovery of the Premises Premises, preparation for reletting and remove therefrom all property thereon belonging to or placed on for reletting itself), and (b) the Premises by, at the direction of, or with consent cost of Tenant within ten performing any other covenants which would have otherwise been performed by Tenant.
(10A) days Upon termination of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the Tenant's right to re-enter and take possession of the demised Premises.
iii) Landlord, with or without terminating this Leaseregardless of whether such termination occurs as a result of a dispossessory proceeding, may immediately or at any time thereafterdistraint proceeding, exercise of right of termination, re-entry, lease expiration or otherwise, Tenant shall remain liable for payment of all rent thereafter accruing and for performance of all obligations thereafter performable under this Lease. Landlord may, at Landlord's option, enter the Premises Premises, remove Tenant's signs and remove therefrom Tenant other evidences of tenancy, and all property belonging to or placed on the Premises bytake and hold possession thereof as provided in subparagraph (g)(ii) above, at the direction of, or with consent of Tenant. Any without such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or possession releasing Tenant from any obligation, including Tenant's obligation to pay rent, including any amounts treated as additional rent, hereunder for the full term of the Premises by Tenant and shall not of itself constitute a termination of this Lease by LandlordLease.
iv(B) LandlordLandlord may, with or without terminating this Leasebut need not, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisableshall determine (including the right to relet the Premises for a greater or lesser term than that remaining under this Lease, the right to relet the Premises as a part of a larger area, and the right to change the character and use made of the Premises) and Landlord shall not be required to accept any tenant offered by Tenant or to observe any instructions given by Tenant about such reletting. In any such case, Landlord may make any repairs, alterations and additions in or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during redecorate the remainder of same to the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant extent Landlord deems necessary or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Leasedesirable, and this Lease shall be deemed to have been terminated Tenant shall, upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination demand, pay the cost thereof, together with Landlord's expenses for reletting, including, without limitation, unamortized sums expended any broker's commission incurred by Landlord. If the consideration collected by Landlord upon any such reletting plus any sums previously collected from Tenant are not sufficient to pay the full amount of all rent, including any amounts treated as additional rent hereunder and other sums reserved in this Lease for leasing commissions and construction the remaining term hereof, together with the costs of tenant improvementsrepairs, all arrearages in rentalsalterations, costsadditions, charges, additional rentalsredecorating, and reimbursementsLessor's expenses of reletting and the collection of the rent accruing therefrom (including attorneys' fees and broker's commissions), Tenant shall pay to Landlord, as Landlord's liquidated damages and not as a forfeiture or penalty, the cost amount of such deficiency upon demand and Tenant agrees that Landlord may file suit to recover any sums falling due under this section from time to time.
(including court costs v) Landlord may, at Landlord's option, enter into and attorneys’ fees) of recovering possession of upon the Premises, with or without process of law, if Landlord determines in its sole discretion that Tenant is not acting within a commercially reasonable time to maintain, repair or replace anything for which Tenant is responsible hereunder, and correct the cost same, without being deemed in any manner guilty of trespass, eviction or forcible entry and detainer and without incurring any alteration of or repair liability for any damage resulting therefrom, and Tenant agrees to reimburse Landlord, on demand, as additional rent, for any expenses which Landlord may incur in thus effecting compliance with Tenant's obligations under this Lease.
(vi) Any and all property which may be removed from the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, by Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions authority of subsection (iv) if the Lease were not terminatedor of law, to which Tenant is or may be entitled, may be handled, removed and stored, as the case may be, by or at the direction of Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event be responsible for the value, preservation or safekeeping thereof. Such election Tenant shall pay to Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be made in Landlord's possession or under Landlord's control. Any such property of Tenant not retaken by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives from storage within thirty (30) days after removal from the Premises shall, at Landlord's option, be deemed conveyed by Tenant to Landlord under this Lease as by a bill ▇▇ sale without further payment or credit by Landlord to Tenant. Pursuit of any of the notice foregoing remedies shall not preclude pursuit of termination.
vi) The exercise any of the other remedies herein provided or any other remedies provided by law or available in equity (all such remedies being cumulative), nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained. No act or thing done by Landlord or its agents during the term hereby granted shall be deemed a termination of this Lease or an acceptance of the surrender of the Premises, and no agreement to terminate this Lease or accept a surrender of said Premises shall be valid unless in writing signed by Landlord. No waiver by Landlord of any violation or breach of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants herein contained. Landlord's acceptance of the payment of rental or other payments hereunder after the occurrence of an event of default shall not be construed as a waiver of such default, unless Landlord so notifies Tenant in writing. Forbearance by Landlord in enforcing one or more of the rights and remedies herein provided in this Lease upon an event of default shall not prevent the subsequent exercise by Landlord be deemed or construed to constitute a waiver of any one such default or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in 's right to enforce any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord such remedies with respect to such default or any subsequent default. If, on account of any breach or default by Tenant in Tenant's obligations under the terms and conditions of this Lease, it shall become necessary or appropriate for Landlord to employ or consult with an attorney concerning or to enforce or defend any of Landlord's rights or remedies hereunder, Tenant agrees to pay reasonable attorneys' fees so incurred. Without limiting the foregoing, to the extent permitted by law, Tenant hereby: (x) appoints and designates the Premises as a proper place for service of process upon Tenant, and agrees that service of process upon any person apparently employed by Tenant upon the Premises or leaving process in a conspicuous place within the Premises shall terminate this Leaseconstitute personal service of such process upon Tenant (provided, includinghowever, but Landlord does not limited to, acceptance hereby waive the right to serve Tenant with process by any other lawful means); (y) expressly waives any right to trial by jury; and (z) expressly waives the service of any notice under any existing or future law of the keys, institution State of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord Georgia applicable to Tenant, landlords and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenanttenants.
Appears in 1 contract
Default and Remedies. a. The occurrence (a) Debtor shall be in default under this Agreement and each of the other Debt Documents if:
(i) Debtor breaches its obligation to pay when due any installment or other amount due or coming due under any of the following shall constitute a default under Debt Documents and such breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within continues uncured after ten (10) days following written notice of non-payment from Landlord to Tenantnotice;
(ii) Abandonment Debtor, without the prior written consent of the Premises Secured Party, attempts to or does sell, rent, lease, license, mortgage, grant a security interest in, or otherwise transfer or encumber (defined as any period of one hundred and eighty (180except for Permitted Liens) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants Collateral; provided however, Debtor is permitted to sale or dispose of worn out or obsolete Collateral which in respect the aggregate shall not exceed $250,000.00 annually.
(iii) Debtor breaches any of assignment and subletting of this Leaseits insurance obligations under Section 4;
(iv) Failure by Tenant Debtor breaches any of its other obligations under any of the Debt Documents and fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant that breach within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; Secured Party provided that such thirty (30) day period shall be extended for however, so long as Debtor has commenced and thereafter is, in the time reasonably required to complete reasonable opinion of Secured Party, diligently pursuing such cure, then no default shall be deemed to have occurred provided such cure occurs within one hundred twenty (120) days after the date of such notice;
(v) Any warranty, representation or statement made by Debtor in any of the Debt Documents or otherwise in connection with any of the Indebtedness shall be false or misleading in any material respect;
(vi) Any of the Collateral is subjected to attachment, execution, levy, seizure or confiscation in any legal proceeding or otherwise, or if any legal or administrative proceeding is commenced against Debtor or any of the Collateral, which in the good faith judgment of Secured Party subjects any of the Collateral to a material risk of attachment, execution, levy, seizure or confiscation and no bond is posted or protective order obtained to negate such failure cannot reasonably be cured within said thirty risk; and such breach continues uncured after forty-five (3045) day period days written notice.
(vii) Debtor breaches or is in default under any other agreement between Debtor and Tenant commences Secured Party and fails to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged that breach within thirty (30) days after written notice from the date of such filingSecured Party;
(viii) Tenant Debtor or any guarantor or other obligor for any of Tenant’s obligations under this Lease the Indebtedness (collectively "Guarantor") dissolves, terminates its existence, becomes insolvent or bankrupt ceases to do business as a going concern;
(ix) If Debtor or admits in writing its inability to pay its debts as they matureany Guarantor is a natural person, Debtor or any such Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any part of the property of Debtor or any Guarantor which exceeds $250,000.00, or Debtor or any Guarantor makes an any assignment for the benefit of creditors, or applies for or consents creditors and Debtor fails to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged cure such breach within sixty forty-five (6045) days after such appointmentwritten notice from Secured Party;
x(xi) Any Debtor or any Guarantor files a petition under any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedingsimilar law, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, such petition is instituted (A) by Tenant filed against Debtor or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease Guarantor and is allowed against it or is consented to by it or is not dismissed within sixty one hundred twenty (60120) days after such institutionforty-five (45) days; or
xi(xii) Tenant’s repeated failure Debtor's improper filing of an amendment or termination statement relating to observe a filed financing statement describing the Collateral.
(b) If Debtor is in default, the Secured Party, at its option, may declare any or perform any all of the other covenantsIndebtedness to be immediately due and payable, terms without demand or conditions hereof more than three notice to Debtor or any Guarantor. The accelerated obligations and liabilities shall bear interest (3both before and after any judgment) times, until paid in full at the aggregate, lower of eighteen percent (18%) per annum of 2% over the Contract Rate stipulated in any period of twelve (12) consecutive monthsPromissory Note attached hereto or the maximum rate not prohibited by applicable law.
b. Upon the occurrence of an Event of Default(c) After default, Landlord agrees to use reasonable efforts to mitigate its damages, but Secured Party shall have the option to do and perform any one or more all of the following in addition torights and remedies of a Secured Party under the Uniform Commercial Code, and not in limitation of, under any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlordapplicable law. Without limiting the foregoing, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord Secured Party shall have the right to re-(i) notify any account debtor of Debtor or any obligor on any instrument which constitutes part of the Collateral to make payment to the Secured Party, (ii) with or without legal process, enter any premises where the Collateral may be and take possession of and remove the Premises.
Collateral from the premises or store it on the premises, (iii) Landlordsell the Collateral at public or private sale, with in whole or without terminating this Leasein part, may immediately or and have the right to bid and purchase at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction ofsaid sale, or with consent (iv) lease or otherwise dispose of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease all or part of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) LandlordCollateral, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for applying proceeds from such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs disposition to the Premises obligations then in default. If requested by Secured Party, Debtor shall promptly assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party which it is reasonably convenient to both parties. Secured Party may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by also render any subsequent tenant of part or all of the Premises, Collateral unusable at the Debtor's premises and thereafter Tenant shall pay monthly during may dispose of such Collateral on such premises without liability for rent or costs. Any notice that Secured Party is required to give to Debtor under the remainder Uniform Commercial Code of the term of this Lease the difference, if any, between the rent time and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess place of any such rents collected over public sale or the rents reserved herein.
v) Landlord may immediately time after which any private sale or at any time thereafter terminate this Lease, and this Lease other intended disposition of the Collateral is to be made shall be deemed to have been terminated upon receipt by Tenant constitute reasonable notice if such notice is given to the last known address of written notice Debtor at least ten (10) five (5) days prior to such action.
(d) Proceeds from any sale or lease or other disposition shall be applied: first, to all costs of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination includingrepossession, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentalsstorage, and reimbursementsdisposition including without limitation attorneys', appraisers', and auctioneers' fees; second, to discharge the cost (including court costs obligations then in default; third, to discharge any other Indebtedness of Debtor to Secured Party, whether as obligor, endorser, guarantor, surety or indemnitor; fourth, to expenses incurred in paying or settling liens and attorneys’ fees) of recovering possession of claims against the PremisesCollateral; and lastly, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excessDebtor, if any, of the total amount of there exists any surplus. Debtor shall remain fully liable for any deficiency.
(e) Debtor agrees to pay all rents reasonable attorneys' fees and other charges to be paid costs incurred by Tenant for Secured Party in connection with the remainder enforcement, assertion, defense or preservation of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the Secured Party's rights and remedies provided in under this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successivelyAgreement, or in any other manner if prohibited by law, such lesser sum as may be permitted. Debtor further agrees that such fees and are in addition to any other rights provided for or allowed by law or in equitycosts shall constitute Indebtedness.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. 13.01 The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
iDefault (herein so called) Failure by of Tenant under this Lease: (a) if Tenant fails to pay any monetary amounts (including Base Rental Rent hereunder as and Additional Rental) when such Rent becomes due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for more than five (5) days after Landlord gives Tenant written notice of past due Rent; (b) if Tenant fails to pay Rent on time more than twice in any period of twelve (12) months; (c) if the Premises become vacant, deserted, or abandoned for more than thirty (30) consecutive days; (d) if Tenant dissolves its business; (e) if any petition is filed by or against Tenant or any guarantor of this Lease under any present or future section or chapter of the United States bankruptcy code, or under any similar law or statute of the United States or any state thereof (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within sixty (60) days of commencement), or if any order for relief shall be entered against Tenant or any guarantor of this Lease in any such proceedings; (f) if Tenant or any guarantor of this Lease becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors; (g) if a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the assets of Tenant or of any guarantor of this Lease, which appointment is not vacated within sixty (60) days following the date of such appointment; or (h) if Tenant fails to perform or observe any other terms of this Lease and such failure shall continue for more than thirty (30) days after written Landlord gives Tenant notice thereof from Landlord to Tenant; provided that of such failure, or, if such failure cannot be corrected within such thirty (30) day period shall be extended for the time reasonably required to complete such cureperiod, if Tenant does not commence to correct such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure default within said thirty (30) day period and thereafter diligently and continuously proceeds prosecute the correction of same to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of completion within a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsreasonable time.
b. 13.02 Upon the occurrence of an any Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option right, at Landlord's option, to elect to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy without further notice or right permitted it by law or in equity or by this Leasedemand to Tenant:
i(a) Landlord, with or without terminating terminate this Lease, may in which event Tenant shall immediately or at any time thereafter re-enter surrender the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurredand, on demand.
ii) Landlordif Tenant fails to so surrender, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter upon and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and to expel or remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or its effects without terminating this Lease, may immediately or at any time thereafter relet the Premises being liable for prosecution or any part thereof claim for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such relettingdamages therefor; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premisesshall, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the differencehereby agrees to, if any, between the rent indemnify Landlord for all loss and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) damage which Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer suffers by reason of such termination includingtermination, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages including damages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, total of (1) the costs of recovering the Premises and all other expenses incurred by Landlord in connection with Tenant's default; (2) the unpaid Rent earned as of the date of termination, plus interest at the Interest Rate; (3) the total amount of all rents and other charges to be paid by Tenant Rent which Landlord would have received under this Lease for the remainder of the term of this Lease over Term, but discounted to the then reasonable present value at a rate of eight percent (8%) per annum, minus the fair market rental value for the balance of the Premises for the remainder of the term of this LeaseTerm, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.determined as of
Appears in 1 contract
Default and Remedies. a. 11.1. The occurrence following events shall be deemed to be events of any of the following shall constitute a default by LESSEE under and breach of this Lease by Tenant (an “Event of Default”):Agreement:
i) Failure by Tenant 11.1.1. LESSEE shall fail to pay any monetary amounts (including Base Rental installment of rent as provided for in this Lease Agreement and Additional Rental) due hereunder within such failure shall continue for a period of ten (10) calendar days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlordthe CITY.
11.1.2. The subletting of any part of the Leased Premises, subject to the terms of Section 10.1.
11.1.3. The encroachment on the public right-of-way beyond the authorized Leased Premises.
11.1.4. LESSEE shall fail to comply with any hazardous condition which Tenant has created term, provision, or permitted in violation of law or covenant of this Lease;
v) Failure by Tenant to completeLease Agreement, execute other than the payment of rent, and deliver any instrument or document required to be completedincluding the Event of Default as set forth in Section 14.5, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if shall not cure such failure shall continue for within thirty (30) calendar days after written notice thereof from Landlord to Tenant; provided that LESSEE, unless LESSEE has undertaken to effect such cure within such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) calendar day period and Tenant commences is diligently pursuing the same to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthscompletion.
b. 11.2. Upon the occurrence of an Event event of Defaultdefault as heretofore provided, Landlord agrees CITY may, at its option, declare this Lease Agreement, and all rights and interests created by it, terminated. Upon CITY electing to use reasonable efforts terminate, this Lease Agreement shall cease and come to mitigate its damages, but shall have an end as if that were the option to do and perform any one or more day originally fixed herein for the expiration of the following in addition toterm hereof; or CITY, its agents or attorney may, at its option, resume possession of the Leased Premises.
11.3. Any termination of this Lease Agreement as herein provided, shall not relieve LESSEE from the payment of any sum or sums that shall then be due and payable or become due and payable to CITY hereunder, or any claim for damages then or theretofore accruing against LESSEE hereunder, and not in limitation of, any other such sum or sums or claim for damages by any remedy or right permitted it provided for by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfylaw, or abide by from recovering damages from LESSEE for any termdefault hereunder. All rights, condition, covenant, agreement, or obligation options and remedies of CITY contained in this LeaseLease Agreement shall be cumulative of the other, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord CITY shall have the right to re-enter and take possession pursue any one or all of such remedies or any other remedy or relief available at law or in equity, whether or not stated in this Lease Agreement. No waiver by CITY of a breach of any of the Premisescovenants, conditions or restrictions of this Lease Agreement shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other covenant, condition or restriction herein contained.
iii) Landlord11.4. Upon any such expiration or termination of this Lease Agreement, with or without terminating this LeaseLESSEE shall quit and peacefully surrender the Leased Premises to CITY, may immediately and CITY, upon or at any time thereafterafter such expiration or termination, may, without further notice, enter upon and re-enter the Leased Premises and remove therefrom Tenant possess and all property belonging to repossess itself thereof, by force, summary proceedings, ejectment or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisableotherwise, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; dispossess LESSEE and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent remove LESSEE and all other charges due under this lease up persons and property, including all signs, furniture, trade fixtures, and other personal property which may be disputed as to and including its status as fixtures, from the date of beginning of payment of rent by any subsequent tenant of part or all of the Leased Premises, and thereafter Tenant such action by CITY shall pay monthly during the remainder not constitute CITY’S acceptance of abandonment and surrender of the term of this Lease the difference, if any, between the rent and other charges collected Leased Premises by LESSEE nor prevent CITY from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled pursuing all legal remedies available to receive any excess of any such rents collected over the rents reserved hereinit.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement
Default and Remedies. a. (a) The occurrence of any of the following shall constitute a default events of default:
(i) Base Rental, Tenant’s Forecast Additional Rental, Tenant’s Additional Rental Adjustment, or any other sum of money payable under this lease is not paid when due;
(ii) Tenant’s interest in the lease or the Premises shall be subjected to any attachment, levy, or sale pursuant to any order or decree entered against Tenant in any legal proceeding and breach such order or decree shall not be vacated within sixty (60) days of entry thereof; or
(iii) Tenant breaches or fails to comply with any term, provision, condition, or covenant of this Lease by Tenant lease, other than as described in Section 7.01(a)(i), or with any of the Rules and Regulations now or hereafter established to govern the operation of the Building or Project.
(b) Upon the occurrence of an “Event event of Default”):
default and (i) Failure by Tenant to pay any monetary amounts if the event of default described in Section 7.01(a)(i) is not cured within five (including Base Rental and Additional Rental5) due hereunder within ten (10) business days following after written notice of non-payment from Landlord to Tenant;
ii) Abandonment of such default (notwithstanding the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation foregoing, in the event of Tenant’s business failure to pay Base Rental, Tenant’s Forecast Additional Rental, or Tenant’s Additional Rental when due, Landlord shall only be obligated to notify Tenant of such monetary default twice in any twelve (12) month period; thereafter Tenant’s failure to pay all such sums when due shall constitute an event of default), or (ii) the Premises);
iiievent of default described in Section 7.01(a)(iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant is not cured within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenantof such default; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cureprovided, however, if such failure canevent of default is not reasonably be cured within said thirty (30) day period and Tenant commences susceptible to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from days, Tenant shall not be in default if Tenant promptly commences the date of cure and diligently pursues the cure to completion as soon as reasonably possible (such filing;
viiiperiod to cure not to exceed, in any event, ninety (90) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Leasedays), or (Biii) against Tenant or any guarantor the event of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or default described in Section 7.01(a)(ii) is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of cured immediately, the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Leaselease:
(i) Landlord, with or without terminating this Leaselease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Leaselease or of the Rules and Regulations now in effect or hereafter adopted or of any notice given Tenant by Landlord pursuant to the terms of this lease, and Tenant shall fully reimburse and compensate Landlord, Landlord on demand for Landlord’s actual cost incurredactual, on demandreasonable costs.
(ii) Landlord, with or without terminating this Leaselease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten thirty (1030) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises. Any such demand, re-entry and taking possession of the Premises by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this lease or of the Premises by Tenant and shall not of itself constitute a termination of this lease by Landlord.
(iii) Landlord, with or without terminating this Leaselease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease lease by Landlord.
(iv) Landlord, with or without terminating this Leaselease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole reasonable discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all actual, reasonable costs of such relettingreletting including but not limited to the cost of any such repairs to the Premises, attorneys’ fees, leasing inducements, and brokerage commissions; and if this Lease lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Leaselease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Tenant and Landlord agree that Landlord shall have the duty to use commercially reasonable efforts to relet the Premises and otherwise mitigate its damages under this lease. Landlord and Tenant agree that such duty to mitigate shall be satisfied and Landlord shall be deemed to have used objectively reasonable efforts to fill the Premises by doing the following: (a) posting a “For Lease” sign at the Project, if Landlord chooses to do so; (b) advising Landlord’s leasing agent of the availability of the Premises; (c) advising at least two (2) outside commercial brokerage entities of the availability of the Premises and (d) using such other commercially reasonable marketing then being generally employed by Landlord with respect to other space in the Building for lease; provided, however, that Landlord shall not be obligated to relet the Premises before leasing any other unoccupied portions of the Project. If Landlord receives any payments from the reletting of the Premises and is required to mitigate damages, any such payment shall first be applied to any costs or expenses incurred by Landlord as a result of Tenant’s default under this lease.
(vi) Landlord may immediately or at any time thereafter terminate this Leaselease, and this Lease lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall have the right to recover from Tenant all actual damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvementsthe Tenant Improvements (to the extent not recovered from a successor tenant), all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and reasonable, actual attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A1) an amount equal to the then current present value (using a discount rate of ten percent (10%) of the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease lease over the then reasonable rental value of the Premises for the remainder of the term of this Leaselease, or (B2) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (ivSection 7.01(b)(iv) if the Lease lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi(c) If Landlord re-enters the Premises or terminates this lease pursuant to any of the provisions of this lease, Tenant hereby waives all claims for damages which may be caused by such re-entry or termination by Landlord, except any damages arising out of the gross negligence or willful misconduct of Landlord, its agents or employees. Tenant shall and does hereby indemnify and hold Landlord harmless from any loss, cost (including court costs and reasonable, actual attorneys’ fees), or damages suffered by Landlord by reason of such re-entry or termination. No such re-entry or termination shall be considered or construed to be a forcible entry.
(d) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement (Homebanc Corp)
Default and Remedies. a. The (a) In addition to the circumstances hereinbefore set forth, the occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant Tenant: (an “Event of Default”):
i) Failure the filing of any voluntary petition or similar pleading under any section or sections of any bankruptcy or insolvency act by or against Tenant or the institution of any voluntary or involuntary proceeding in any court or tribunal to declare Tenant insolvent or unable to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined 's debts as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business they mature and, in the Premises);
iii) Failure by Tenant to observe case of an involuntary petition or perform any of proceeding, the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created petition or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant proceeding is not dismissed within twenty forty-five (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (3045) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they matureit is filed, or makes the making of an assignment for the benefit of creditorsits creditors by Tenant, or applies for or consents to the appointment of a trustee or receiver for all Tenant or a for the major part of its property;
ixTenant's property which appointment is not revoked within thirty (30) A trustee days; (ii) Tenant's failure to pay the monthly Base Rental, Additional Rent or receiver any other sum due hereunder, if such nonpayment continues for five (5) or more business days after the date notice of such late payment is appointed for provided to Tenant, ; (iii) Tenant's default in the prompt and full performance of any guarantor other provision of Tenant’s obligations under this Lease or for a major part of either party’s property and is Tenant does not discharged cure the default within sixty twenty (6020) days after written demand by Landlord that the default be cured provided, however, that if the default cannot reasonably be cured within such appointment;
x) Any bankruptcytime period, reorganization, arrangement, insolvency then Tenant shall not be in default if Tenant commences to cure such default within such time period and thereafter diligently pursues the performance thereof to completion (unless the default involves a condition dangerous to person or liquidation proceedingproperty, or other proceeding for relief under which will become worse if no immediate action is taken to cure such default, in which event such default shall be cured forthwith upon Landlord's demand); (iv) Tenant shall do or permit to be done anything that creates a lien upon the Premises or the Building if such lien is not removed within twenty (20) days after written notice thereof to Tenant. Landlord shall have no obligation to notify Tenant of any bankruptcy law or similar law for the relief violations of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenantsexcept monetary, terms or conditions hereof on more than three two (32) timesoccasions during any Lease Year, and an event of default shall be deemed to have occurred hereunder in such circumstances without the aggregate, in necessity of any period of twelve (12) consecutive monthsprior notice by Landlord or opportunity to cure by Tenant.
b. (b) Upon the occurrence of an Event of Defaultany default by Tenant as aforesaid, Landlord agrees Landlord, in addition to use reasonable efforts to mitigate its damagesany and all other rights or remedies it may have at law or in equity, but shall have the option to do and perform of pursuing any one or more of the following in addition toremedies:
(i) Landlord shall have the immediate right of reentry and may remove all property from the Premises to a warehouse or elsewhere at the cost of, and not for the account of Tenant, all without being deemed guilty of trespass or becoming liable for any loss, damage or damages which may be occasioned thereby;
(ii) Landlord may terminate this Lease by giving notice of termination, in limitation ofwhich event this Lease shall expire and terminate on the date specified in such notice of termination, any other remedy or right permitted it by law or in equity or by with the same force and effect as though the date so specified were the date herein originally fixed as the expiration date of the Term of this Lease:, and all rights of Tenant under this Lease and in and to the Premises shall expire and terminate, and Tenant shall remain liable for all obligations under this Lease arising up to the date of such termination, and Tenant shall surrender the Premises to Landlord on the date specified in such notice;
i(iii) LandlordLandlord may terminate this Lease as provided in subparagraph 28(b)(ii) hereof and recover from Tenant all damages Landlord may incur by reason of Tenant's default, including, without limitation, a sum which, at the date of such termination, represents the then present value (calculated at the rate of twelve percent (12%) interest per annum) of the excess, if any, of (A) the Base Rental (including without limitation, increases in Base Rental pursuant to Paragraph 11 hereof), Additional Rent, and all other sums which would have been payable hereunder by Tenant for the period commencing with or the day following the date of such termination and ending with the date hereinbefore set for the expiration of the full term hereby granted, over (B) the aggregate reasonable rental value of the Premises (less reasonable brokerage commissions, attorneys' fees and other costs relating to the reletting of the Premises) for the same period, all of which excess sum shall be deemed immediately due and payable;
(iv) Landlord may, from time to time without terminating this Lease, may immediately and without releasing Tenant in whole or at any time thereafter re-enter in part from Tenant's obligation to pay Base Rental, Additional Rent and all other amounts due under this Lease and perform all of the Premises covenants, conditions and correct or repair any condition which shall constitute a failure on Tenant’s part agreements to keep, observe, perform, satisfy, or abide be performed by any term, condition, covenant, agreement, or obligation of Tenant provided in this Lease, make such alterations and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging repairs as necessary to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of relet the Premises.
iii) Landlord, with or without terminating this Leaseand, may immediately or at any time thereafterafter making such alterations and repairs, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises byLandlord may, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord but shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlordbe obligated to, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, term (which may be for a term extending beyond the Term of this Lease) at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisableadvisable or acceptable; upon each reletting, all rentals received by Landlord from such reletting shall be applied first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys' fees, and of costs of such alterations and repairs; third, to the payment of the Base Rental, Additional Rent and other charges due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied against payments of future Base Rental, Additional Rent or other charges as the same may make become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above charges that Tenant is obligated to pay hereunder, including Base Rental, Additional Rent and all other charges; if such rentals received from such reletting during any month are less than those to be paid during the month by Tenant hereunder, including Base Rental, Additional Rent and all other charges, Tenant shall pay any such deficiency to Landlord, which deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand all costs and expenses incurred by Landlord in connection with such reletting and in making any alterations or and repairs to which are not covered by the Premises which it may deem necessary or proper to facilitate rentals received from such reletting; and notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.
(c) All sums past due from Tenant shall pay all reasonable costs of such reletting; and if under this Lease shall not have been terminatedbear interest at fifteen percent (15%) per annum, but in no event in excess of the maximum lawful rate, from due date until paid in full.
(d) Tenant shall continue and hereby agrees to pay all rent costs and all other charges due under expenses incurred by Landlord in enforcing any of the covenants and agreements of this lease up to and including the date Lease, or as a result of beginning of payment of rent an action brought by any subsequent tenant of part or all Landlord against Tenant for an unlawful detainer of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the differenceall such costs, expenses and attorneys' fees shall, if anypaid by Landlord, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder to Landlord within fifteen (15) days of Landlord's written demand therefor, together with interest at fifteen percent (15%) per annum, but in no event in excess of the term maximum lawful rate, from the date of this Lease over Landlord's payment thereof.
(e) In the then reasonable rental value event of a default hereunder beyond applicable periods of notice and cure, Landlord may declare Tenant in default under any or all other agreements between Landlord and Tenant or any affiliate of Tenant, whether in effect now or following the Premises for the remainder of the term date of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement (Infinity Property & Casualty Corp)
Default and Remedies. a. The occurrence A. Each of the following shall be deemed an event of default by Borrower (each, an "Event of Default"):
(1) If any representation or warranty of any of the following shall constitute a default Borrower Parties set forth in any of the Loan Documents is false in any material respect or if any of the Borrower Parties renders any statement or account which is false in any material respect.
(2) If any principal, interest or other monetary sum due under and breach the Notes, the Mortgages or any other Loan Document is not paid within five days after the date when due; provided, however, notwithstanding the occurrence of this Lease by Tenant (such an “Event of Default”):
i) Failure by Tenant , Lender shall not be entitled to pay any monetary amounts (including Base Rental exercise its rights and Additional Rental) due hereunder within ten (10) days following written remedies set forth below unless and until Lender shall have given Borrower notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any thereof and a period of one hundred and eighty five days from the delivery of such notice shall have elapsed without such Event of Default being cured.
(1803) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant If Borrower fails to observe or perform any of the other covenants (except with respect to a breach of the Fixed Charge Coverage Ratio, which breach is addressed in respect of assignment and subletting subitem (7) below), conditions, or obligations of this Lease;
iv) Failure by Tenant Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is within the reasonable power of Borrower to cure forthwith, immediately within the period provided below after receipt of notice from Landlordthereof, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if then such failure shall continue for thirty (30) days after written not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lender shall have given Borrower notice thereof from Landlord to Tenant; provided that and a period of 30 days shall have elapsed, during which period Borrower may correct or cure such thirty (30) day period failure, upon failure of which correction or cure an Event of Default shall be extended for the time reasonably required deemed to complete such cure, if have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within said thirty (such 30) -day period, and Borrower is diligently pursuing a cure of such failure, then Borrower shall have a reasonable period and Tenant commences to cure such failure within said thirty (beyond such 30) -day period and thereafter diligently and continuously proceeds period, which shall not exceed 90 days after receiving notice of the failure from Lender. If Borrower shall fail to correct or cure such failure;
viifailure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. Notwithstanding anything in this subitem (3) The levy upon execution to the contrary, if a breach of one or more of the attachment by legal covenants in Section 6.F. shall have occurred as a result of any occurrence or event or series of occurrences or events and that occurrence or event or series of occurrences or events may be, or shall be required to be, Remediated under applicable Environmental Laws or directive of any Governmental Authority having jurisdiction over such matter, the cure period for such breach of that covenant or those covenants shall be deemed extended if Borrower promptly commences the process of effecting the leasehold interest Remediation of Tenantsuch occurrence or event or series of occurrences or events within the cure period set forth in this subitem (3) and Borrower continuously and diligently pursues and completes such Remediation in accordance with applicable Environmental Laws and directives of any Governmental Authority having jurisdiction over such matter until either:
(i) Borrower ceases the Remediation in accordance with this subitem (3); or (ii) completes the Remediation.
(4) If any of the Borrower Parties becomes insolvent within the meaning of the Code, files or notifies Lender that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action (and, if such petition or Action is involuntary, such petition or Action is not dismissed within 60 consecutive days), or is not generally paying its debts as the filing same become due.
(5) If an "Event of Default" has occurred and is continuing under any other Loan Document, the Equipment Loan Documents, the Lease, any of the Related Leases, any of the Affiliated Borrower Loan Documents or creation there is a breach or default, after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements. SCS Finance II, L.P. Mortgage Loan
(6) If a lien final, nonappealable judgment is rendered by a court against any of the Borrower Parties which (i) has a material adverse effect on the operation of any of the Premises as a Permitted Concept, or (ii) is in respect of an amount greater than $350,000 as to Borrower, or $700,000 as to any guarantor, and not covered by insurance, and, in either case, is not discharged or provision made for such leasehold interest, which lien shall not be released or discharged discharge within thirty (30) 60 days from the date of entry of such filing;judgment.
viii(7) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of If there is a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any breach of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any Fixed Charge Coverage Ratio requirement and Lender shall have given Borrower notice thereof and Borrower shall have failed within a period of twelve (12) consecutive months.
b. Upon 30 days from the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant delivery of such notice from Landlord, whereupon Landlord shall have to (i) pay to Lender the right FCCR Amount (without premium or penalty) with respect to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, (starting with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals with the lowest Fixed Charge Coverage Ratio and upon such other terms and conditions as Landlord proceeding in its sole discretion may deem advisable, and Landlord may make any alterations or repairs ascending order to the Premises which it may deem with the next lowest Fixed Charge Coverage Ratio) as is necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including cure the date of beginning of payment of rent by any subsequent tenant of part or all breach of the Premises, Fixed Charge Coverage Ratio requirement and thereafter Tenant shall pay monthly during for which the remainder then Fixed Charge Coverage Ratio (with the definitions in Section 6.J being deemed to be modified as applicable to provide for the calculation of the term Fixed Charge Coverage Ratio for each such Premises on an individual basis rather than on an aggregate basis with the other Premises) is below 1.25:1 (each, a "Subject Premises"), (ii) prepay the Note corresponding to the Subject Premises in whole but not in part (without premium or penalty) or (iii) notify Lender of this Lease Borrower's election to substitute a Substitute Premises for each Subject Premises in accordance with the difference, if any, between terms of Section 11 in an attempt to cure the rent and other charges collected from any breach of the Fixed Charge Coverage Ratio (the failure of Borrower to complete such subsequent tenant or tenants and substitution within 60 days after Lender shall have given the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease notice discussed above shall be deemed to have been terminated upon receipt by Tenant be an Event of written Default without further notice or demand of any kind being required). For purposes of the preceding sentence, "FCCR Amount" means that sum of money which, when subtracted from the outstanding principal amount of the Note corresponding to a Subject Premises, and assuming the resulting principal balance is reamortized in equal monthly payments over the remaining term of such termination; upon Note at the rate of interest set forth therein, will result in an adjusted aggregate Fixed Charge Coverage Ratio for all of the Premises of at least 1.25:1 based on the prior year's operations. Promptly after Borrower's payment of the FCCR Amount, Borrower and Lender shall execute an amendment to each such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason Note, in form and substance reasonably acceptable to Lender, reducing the principal amount payable to Lender under such Note and reamortizing the principal amount of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages Note in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease monthly payments over the then reasonable rental value of the Premises for the remainder of the remaining term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, such Note at the election rate of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityinterest set forth therein.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s 's business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s 's obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s 's obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s 's obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s 's obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s 's repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s 's part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ ' fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Triple Net Office Lease Agreement (Franklin Financial Network Inc.)
Default and Remedies. a. 11.1 The occurrence following events (any one or more of any them) shall be deemed to be “Events of the following shall constitute a default under and breach of this Lease Default” by Tenant (an “Event of Default”):under this Lease:
i) Failure by 11.1.1 Tenant shall fail to pay any monetary Rent, additional Rent, or any monthly payment, or any other cost, sum, expense, charge or amounts (including Base Rental and Additional Rental“Payments”) due hereunder within to Landlord as herein provided, and such failure shall continue for a period of ten (10) days following written notice of non-after any such Payments are due.
11.1.2 Tenant shall fail to make any payment from Landlord to Tenant;
ii) Abandonment of third parties as required by the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision terms of this Lease, if or shall fail to comply with any other term, provision or covenant of this Lease [other than the payment of the Payments referred to in Article 11.1.1 above] and shall not cure such failure shall continue for within thirty (30) days after written notice thereof from Landlord to Tenant; provided that . The Tenant shall not be considered in default under this Lease if such curative action cannot be completed within such thirty (30) day period shall be extended for period, and Tenant has commenced efforts to cure the time reasonably required to complete same within such cure, if such failure cannot reasonably be cured within said thirty (30) day period and is diligently pursuing the cure of such default.
11.1.3 Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenantshall become insolvent, or the filing or creation shall make a transfer in fraud of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they maturecreditors, or makes shall make an assignment for the benefit of creditors.
11.1.4 Tenant shall file a petition under any section or chapter of the Bankruptcy Code, as amended, or applies under any similar law or statute of the United States or any State thereof; or Tenant shall be adjudged bankrupt or insolvent in proceedings filed against Tenant.
11.1.5 A receiver or Trustee shall be appointed for all of the Premises or consents to the appointment of a trustee or receiver for all or substantially all of the assets of Tenant under this Lease.
11.1.6 Tenant shall do or permit to be done anything which creates a major part lien upon the Premises.
11.1.7 The business operated by Tenant shall be closed for failure to pay any State sales tax as required, for violation of its property;law, or for any other reason.
ix) A trustee 11.1.8 The vacating or receiver is appointed abandonment of the Premises by Tenant.
11.1.9 The making by Tenant it of any general assignment, or general arrangement for Tenantthe benefit of creditors.
11.1.10 The attachment, any guarantor execution, or other judicial seizure of substantially all of Tenant’s obligations under assets located at the Premises or of Tenant’s interest in this Lease or for a major part of either party’s property and Lease, where such seizure is not discharged within sixty thirty (6030) days after days.
11.2 Upon the occurrence of any one or more of such appointment;
x) Any bankruptcyEvents of Default, reorganization, arrangement, insolvency Landlord shall have the option to pursue any one or liquidation proceedingmore of the following remedies, or any other proceeding remedy set forth in this Lease or otherwise permitted by law, or in equity, without any notice or demand whatsoever (except as expressly required by the terms of this Lease):
11.2.1 Terminate this Lease in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for relief under possession or arrearages in rental, enter upon and take possession of the Premises and expel or remove Tenant and any bankruptcy law or similar law for other person who may be occupying the relief of debtors, is instituted (A) by Tenant Premises or any guarantor part thereof, by force if necessary, without being liable for prosecution or any claim of damages therefor.
11.2.2 Terminate Tenant’s right of possession, without terminating this Lease, and enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages therefor.
11.2.3 Enter upon the Premises by force if necessary without being liable for prosecution or any claim for damages therefor, and do whatever Tenant is obligated to do under the terms of this Lease, and Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in thus affecting compliance with Tenant’s obligations under this Lease, or (B) against and Tenant or further agrees that Landlord shall not be liable for any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented damages resulting to by it or is not dismissed within sixty (60) days after the Tenant from such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsaction.
b. Upon the occurrence of 11.2.4 The remedies stated herein for an Event of DefaultDefault by Tenant are not exclusive, and Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option right to do and perform pursue any one or more of the following in addition to, and not in limitation of, remedies stated above or any other remedy or right permitted it provided by law or in equity equity. Forbearance by Landlord to enforce one or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession more of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent remedies herein provided upon an Event of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant Default shall not be entitled deemed or construed to receive any excess constitute a waiver of any such rents collected over the rents reserved hereindefault.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise 11.3 Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the rights Premises, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and remedies provided in Tenant.
11.4 In the event Tenant fails or refuses to make timely and punctual payment of any Rent, additional Rent or other sums payable or charges due under this Lease as and when the same shall become due and payable, or in the event of any breach of any of the terms or provisions of this Lease by Tenant, in addition to the other remedies available to Landlord, Landlord at their option, shall be entitled, and is hereby authorized, without any notice to Tenant whatsoever, to enter into and upon the Premises by any peaceable means, and to change, alter and/or modify the door locks on all entry doors of the Premises, permanently excluding Tenant and its officers, principals, agents, employees, representatives and invitees therefrom. In the event that Landlord has either permanently repossessed the Premises as aforesaid or has elected to terminate this Lease by reason of Tenant’s default, Landlord shall not prevent thereafter be obligated to provide Tenant with a key to the subsequent exercise by Landlord Premises at any time, regardless of any one or more amounts subsequently paid by Tenant; provided, however, that in any such instance, during Landlord’s normal business hours and at the convenience of the other rights Landlord, and remedies herein provided. All remedies provided for in this Lease are cumulative upon receipt of a written request from Tenant accompanied by such written waivers and releases as Landlord may require, Landlord may, at the election of Landlordtheir option, be exercised alternatively, successively, (a) escort Tenant or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect its authorized representative to the Premises to retrieve any personal belongings or other property of Tenant not subject to the Landlord’s lien or security interest described herein, or (b) obtain a list from Tenant of such personal property Tenant intends to remove, whereupon Landlord shall terminate this Leaseremove such property and make it available to Tenant at a time and place designated by Landlord. In the event Landlord elects option (b) above, Tenant shall pay, in cash and in advance, all costs and expenses estimated by Landlord to be incurred in removing such property and making it available to Tenant, including, but not limited to, acceptance all moving and/or storage charges theretofore incurred by Landlord with respect to such property. If Landlord elects to exclude Tenant from the Premises without permanently repossessing the Premises or terminating this Lease pursuant to the foregoing, then Landlord shall not be obligated to permit Tenant entry into the Premises or provide Tenant with a key to re-enter the Premises until such time as all delinquent Rent and other sums, including interest and late charges thereon, if any, due under this Lease have been fully paid, and all other defaults, if any, have been completely and timely cured to Landlord’s satisfaction (if such cure occurs prior to actual permanent repossession or termination), and Landlord has been given assurances by Tenant reasonably satisfactory to Landlord evidencing Tenant’s ability to satisfy its remaining obligations under this Lease. Landlord’s remedies hereunder shall be in addition to, and not in lieu of, any of its other remedies set forth in this Lease, or otherwise available to Landlord at law or in equity. It is intended that this paragraph, and the provisions herein contained, shall supersede and be paramount to any conflicting provisions of the keysTexas Property Code, institution as well as any successor statute governing the rights of landlords to change locks of commercial tenants.
11.5 In the event Landlord elects to terminate this Lease by reason of an Event of Default, then notwithstanding such termination, Tenant shall be liable for and shall pay to Landlord, at the address specified for notice to Landlord herein the sum of all Rent and other indebtedness accrued to date of such termination, plus an amount equal to the difference between (a) the total Rent due plus any other payment required to be made by Tenant hereunder for the remaining portion of the Lease Term (had such Term not been terminated by Landlord prior to the date of expiration stated in Article 2), and (b) the then present value of the then fair rental value of the Premises for such period.
11.6 In the event that Landlord elects to repossess the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord at the address specified for notice to Landlord herein all Rent and other indebtedness accrued to the date of such repossession, plus Rent required to be paid by Tenant to Landlord during the remainder of the Lease Term until the date of expiration of the Term as stated in Article 2 hereof, diminished by any net sums thereafter received by Landlord through reletting the Premises during said period (after deducting expenses incurred by Landlord as provided in this Article 11 hereof). In no event shall Tenant be entitled to any excess of any rental obtained by reletting over and above the rental herein reserved. Actions to collect amounts due by Tenant to Landlord as provided in this Article 11 may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until expiration of the Lease Term.
11.7 In case of any Event of Default or breach by Tenant, Tenant shall also be liable for and shall pay to Landlord, at the address specified for notice to Landlord herein, in addition to any sum provided to be paid above, broker’s fees incurred by Landlord in connection with reletting the whole or any part of the Premises; the costs of removing and storing Tenant’s or other occupant’s property; the costs of repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Landlord in enforcing or defending Landlord’s rights and/or remedies hereunder including reasonable attorneys’ fees incurred by Landlord.
11.8 In the event of termination or repossession of the Premises for an Event of Default, Landlord shall not have any obligation to relet or attempt to relet the Premises, or any portion thereof, or to collect rental after reletting; and in the event of reletting, Landlord may relet the whole or any portion of the Premises for any period, for any rental, to any tenant, and for any use and purpose, which Landlord may desire.
11.9 If Tenant should fail to make any payment or cure any default hereunder within the time expressly permitted herein, Landlord, without being under any obligation to do so and without thereby waiving such default, may make such payment and/or remedy such other default for the account of Tenant (and enter the Premises for such purpose), and thereupon Tenant shall be obligated to, and hereby agrees, to pay Landlord, upon demand, all costs, expenses and disbursements (including reasonable attorneys’ fees) incurred by Landlord in taking such remedial action.
11.10 In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for detainer or other dispossessory proceedingsdamages (Tenant hereby waiving the benefit of any laws granting it a lien upon the property of Landlord, it being understood that and/or upon Rent due Landlord), but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall thereupon have thirty (30) days in which to cure any default; provided, however, Landlord shall not be considered in default under this Lease may only if such curative action cannot be terminated by express written notice from Landlord to Tenantcompleted within such thirty (30) day period, and any reletting Landlord has commenced efforts to cure within such period and is diligently pursuing the cure of such default. All obligations of Landlord hereunder will be construed as covenants, not conditions; and all such obligations will be binding upon Landlord only during the period of its ownership of the Premises shall be presumed to be for and on behalf of TenantPremises, and not thereafter, provided that in the event of a transfer (excepting an involuntary transfer such as a foreclosure) such transferee of Landlord, unless Landlord expressly provides otherwise in writing ’s ownership interest has assumed all of Landlord’s obligations hereunder and that notice has been given to TenantTenant pursuant to Section 10.3.
Appears in 1 contract
Default and Remedies. a. The occurrence (a) In the event that (a) any installment of rent, additional rent or any of the following shall constitute a default under and breach of this Lease other amount to be paid by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder is not paid within ten (10) days following after written notice to Tenant that such was not received when the same is due and payable, provided that Landlord may charge Tenant $500 to cover its administrative expenses each time Landlord sends Tenant a valid notice of non-payment from Landlord default in excess of two (2) times in any calendar year, with no such charge to Tenant;
iibe assessed for said first two (2) Abandonment of the Premises notices in any calendar year (defined as any period of one hundred and eighty said amount may only be charged once for each default), or (180b) consecutive days without operation of Tenant’s business Tenant defaults in the Premises);
iii) Failure by Tenant to observe performance or perform any observance of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, covenant or condition or provision of in this Lease, if Lease and such failure shall continue default remains unremedied for thirty (30) days after written notice thereof from has been given or sent to Tenant by Landlord to Tenant; provided that unless such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure default cannot reasonably be cured within said thirty (30) day period 30 days, in which case, commencement within 30 days, followed by completion of cure thereafter with due diligence and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenantcontinuity, shall suffice, or the filing (c) any warranty or creation of a lien in respect of such leasehold interestrepresentation made by Tenant herein proves to be false or misleading, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viiid) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, is generally not paying its debts as such debts become due, a custodian is appointed or applies takes possession of its assets not discharged or dismissed within 90 days, commences any bankruptcy or reorganization proceeding against or by Tenant as a debtor or against any substantial part of Tenant’s property, dissolution or liquidation law or statute of any jurisdiction whether now or hereafter in effect not discharged or dismissed within 90 days, or there is commenced against Tenant any such proceeding which remains undismissed for a period of ninety (90) days, or consents to any order approving the petition in any such proceeding is entered, or Tenant by any act indicates its consent to, or acquiescence in, any such proceeding or the appointment of a any receiver or trustee for Tenant or receiver for all or a major any substantial part of its property;
ix, or suffers any such receivership or trusteeship to continue undischarged for a period of ninety (90) A trustee days, or receiver is appointed for Tenant, any guarantor party holding a security interest in any of Tenant’s obligations under this Lease 's fixtures or for a major part personal property of either party’s any material nature that are located on the Leased Premises institutes or gives notice of foreclosure against any such property and is not discharged or dismissed within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease90 days, or (Be) against Tenant shall have assigned or sublet the Leased Premises without the prior written consent of Landlord, or (f) the dissolution of any corporate or limited liability Tenant or the termination of any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any partnership Tenant in violation of the other covenantsterms hereof, terms or conditions hereof more than three (3) timesthen Landlord shall be entitled to all remedies available to Landlord at law and equity, in including without limitation, the aggregate, in any period remedy of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do forcible entry and perform any one or more of the following in addition todetainer, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, Landlord lawfully may immediately or at any time thereafter re-enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess the same as of its former estate, provided however that unless Tenant shall have vacated the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession first obtain an order from a court of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any competent jurisdiction authorizing such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender repossession notwithstanding any other provision of this Lease or of the Premises by lease, and expel Tenant and shall not those claiming through or under it and remove it or their effects and without prejudice to any remedies which might otherwise be used for arrears of itself constitute a termination rent or preceding breach of covenant, and upon entry as aforesaid, this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such relettingshall terminate; and Tenant shall pay all reasonable costs covenants and agrees, notwithstanding any entry or reentry by Landlord, by summary proceedings, termination, or otherwise, that Tenant shall, as of the date of such reletting; termination, immediately be liable for and if this Lease shall not have been terminated, Tenant shall continue pay to pay all rent Landlord the entire unpaid rental and all other charges balances due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term less the value of the premises for the balance of the term, discounted to present value at the then Wall Street Journal Prime Rate (the “Accelerated Rent”). Tenant shall also remain and continue liable to Landlord in an amount equal to all reasonable costs associated with the default of Tenant and the termination of the Lease, excluding, however, Landlord's attorneys' fees incurred in enforcing the provisions of this Lease over against Tenant.
(b) In the then reasonable rental value event of the Premises termination of this Lease for the remainder default of the term of this LeaseTenant, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection the preceding paragraph, Landlord will have the right from time to time to relet the Leased Premises upon such terms as it deems fit. Nothing herein contained will be deemed to require Landlord to await the date on which this Lease or the term hereof, would have expired had there been no default by Tenant, or no such termination or cancellation. Except as expressly set forth herein, ▇▇▇▇▇▇▇▇'s rights and remedies under this Lease are distinct, separate and cumulative remedies, and no one of them, whether or not exercised by Landlord, will be deemed to be in exclusion of any of the others herein provided. Nothing contained in this Section will limit or prejudice the right of Landlord to prove and obtain, in proceedings involving the bankruptcy or insolvency of, or a composition with creditors by ▇▇▇▇▇▇, the maximum allowed by any statute or rule of law at the time in effect. Notwithstanding any other provision of this Lease, Landlord shall, in the event of termination of this lease or of Tenant’s rights hereunder, have the obligation to mitigate its damages pursuant to the provisions of Maine statute if applicable and other applicable law. If Tenant has paid the Accelerated Rent to Landlord, then all net amounts received by Landlord in mitigation of its damages (ivi.e., as rent or other charges received from any re-letting of the Leased Premises) if the Lease were not terminated. Such election shall be made paid over by Landlord to Tenant within 30 days after the same are received by serving written notice upon Tenant Landlord (up to but not in excess of the total amount of Accelerated Rent actually paid by ▇▇▇▇▇▇), which “net amounts” received in mitigation shall be computed by taking the gross amounts received by Landlord as mitigation of its choice damages, and subtracting therefrom all reasonable costs of one obtaining such mitigation, including without limitation brokerage commissions, costs of refitting the two said alternatives Leased Premises and the like.
(c) Landlord shall in no event be in default in the performance of any of its obligations hereunder unless and until Landlord shall have failed to perform such obligations within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of or such additional time as is reasonably required to correct any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express such default after written notice from by Tenant to Landlord properly specifying wherein Landlord has failed to Tenant, and perform any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantsuch obligation.
Appears in 1 contract
Sources: Triple Net Lease
Default and Remedies. a. The occurrence If Tenant shall (i) fail to pay any installment of Monthly Base Rent, although no legal or formal demand has been made therefor, within five (5) business days after written notice by Landlord (provided that no such notice shall be required with respect to the second (2nd) and each successive late payment of Monthly Base Rent during any twelve (12) month period hereunder, with respect to which an Event of Default shall occur hereunder upon Tenant's failure to tender any such installment of Monthly Base Rent to Landlord with five (5) business days after its due date), or (ii) fail to make any payment of Additional Rent or any other payment required by the terms and provisions hereof, within five (5) days after notice or demand therefor; or (iii) convey, assign, mortgage or sublet this Lease, the Premises or any part thereof, or Tenant's interest therein, or attempt any of the following shall constitute a default under and breach foregoing, without the prior written consent of this Lease by Tenant Landlord; or (iv) commit or suffer to exist an “Event of Default”):
iBankruptcy (hereinafter defined), or (v) Failure fail to maintain the insurance coverage required by Tenant Section 12, above, or (vi) violate or fail to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure other terms, conditions, covenants, or agreements herein made by Tenant and fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
vsuch default within thirty (30) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) calendar days after notice, provided, however, that if the initial written demand for same to nature of Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if 's failure is such failure shall continue for that more than thirty (30) days after written notice thereof from Landlord to Tenant; provided that are reasonably required for its cure, then Tenant shall not be in default if it begins such cure within the thirty (30) day period shall be extended for the time reasonably required described above and thereafter diligently prosecutes such cure to complete such cure, if such failure cannot reasonably be cured completion within said an additional thirty (30) day period days; then there shall be deemed to have been committed an "Event of Default".
b. In the event of any Event of Default by Tenant as defined in ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ may at any time thereafter, without notice and demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default or breach do any of the following:
(i) Landlord may terminate this Lease, by giving written notice of such termination to Tenant, whereupon this Lease shall automatically cease and terminate and Tenant commences shall be immediately obligated to cure such failure within said thirty quit the Premises. Any other notice to quit or notice of Landlord's intention to re-enter the Premises is hereby expressly waived. If Landlord elects to terminate this Lease, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, subject, however, to the right of Landlord to recover from Tenant all rent and any other sums accrued up to the time of termination or recovery of possession by Landlord, whichever is later.
(30ii) day period and thereafter diligently and continuously proceeds With or without the termination of this Lease, Landlord may proceed to cure such failure;
vii) The levy upon execution or the attachment by legal process recover possession of the leasehold interest Premises under and by virtue of the provisions of the laws of the jurisdiction in which the Building is located, or by such other proceedings, including re-entry and possession, as may be applicable. If this Lease is terminated or Landlord recovers possession of the Premises before the expiration of the Term by reason of Tenant's default as hereinabove provided, Landlord shall take reasonable steps to attempt to relet the Premises for such rent and upon such terms as are not unreasonable under the circumstances and, if the full rental reserved under this Lease (and any of the costs, expenses or the filing or creation of a lien in respect of such leasehold interest, which lien damages indicated below) shall not be released realized by Landlord, Tenant shall be liable for all damages sustained by Landlord, including without limitation deficiency in rent during any period of vacancy or discharged within thirty otherwise; the costs of removing and storing the property of Tenant or of any other occupant; the then-remaining unamortized portion of the Improvement Allowance described in the Work Agreement; all reasonable expenses incurred by Landlord in enforcing Landlord's remedies, including without limitation reasonable attorneys' fees and Late Charges as provided herein, and advertising, brokerage fees and expenses of placing the Premises in first class rentable condition. Landlord, in putting the Premises in good order or preparing the same for rerental may, at Landlord's option, make such alterations, repairs, or replacements in the Premises as Landlord, in its sole judgment, considers advisable and necessary for the purpose of reletting the Premises, and the making of such alterations, repairs, or replacements shall not operate or be construed to release Tenant from liability hereunder as aforesaid.
(30iii) days Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at Landlord's option, at the time of termination of this Lease, the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord's option in a single proceeding deferred until the expiration of the Term (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said Term) or in a single proceeding prior to either the time of reletting or the expiration of the Term. If the Landlord elects to repossess the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord all Rent and other indebtedness accrued to the date of such repossession, plus Rent required to be paid by Tenant to Landlord during the remainder of this Lease until the date of expiration of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period (after deducting expenses incurred by Landlord as provided in Section 16b(ii), above). In no event shall Tenant be entitled to any excess of any Rent obtained by reletting over and above the Rent herein reserved. Actions to collect amounts due from Tenant as provided in this Section 16(a)(iii) may be brought from time to time, on one or more occasions, without the necessity of Landlord's waiting until expiration of this Lease term. Upon termination of this Lease or repossession of the Premises following a default hereunder, Landlord shall attempt to relet the Premises or any portion thereof; provided that, if Landlord is successful in reletting, it shall not be responsible for the payment of Rent by such new tenant. In the event of reletting Landlord may relet the whole or any portion of the Premises for any period, to any tenant, and for any use and purpose on such terms and at such rentals as Landlord in its exclusive judgment may determine.
c. Notwithstanding the foregoing, if Landlord terminates this Lease pursuant to Section 16b(i), above, Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default, an amount equal to the difference between (i) all Monthly Base Rent, Additional Rent and other sums which would be payable under this Lease from the date of such filing;
viiidemand (or, if it is earlier, the date to which Tenant shall have satisfied in full its obligations under Section 16b(ii), above) Tenant for what would be the then unexpired Term in the absence of such termination, and (ii) the fair market rental value of the Premises over the same period (net of all expenses and all vacancy periods reasonably projected by Landlord to be incurred in connection with the reletting of the Premises), with such differential discounted at the rate of seven percent (7%) per annum. Nothing herein shall be construed to affect or prejudice Landlord's right to prove, and claim in full, unpaid Rent or any guarantor other amounts accrued prior to termination of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents Lease.
d. Notwithstanding anything herein to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenantcontrary, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon upon the occurrence of an Event of DefaultDefault hereunder, Landlord agrees to use reasonable efforts to mitigate its damagesLandlord, but shall have with or without terminating the option to do Lease, may immediately reenter and perform any one or more take possession of the following Premises and evict Tenant therefrom, without legal process of any kind, using such force as may be necessary, without being liable for or guilty of trespass, forcible entry or any other tort. Landlord's right to exercise such "self-help" remedy shall be in addition to, and not in limitation of, Landlord's other rights and remedies hereunder for a breach by Tenant of its obligations under the Lease.
e. Tenant hereby expressly waives any and all rights of redemption granted by or under any present of future laws in the event Tenant is evicted or dispossessed for any cause, or in the event Landlord obtains possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease or otherwise. In addition, Tenant hereby expressly waives any and all rights to bring any action whatsoever against any tenant taking possession after Tenant has been dispossessed or evicted hereunder, or to make any such tenant or party to any action brought by Tenant against Landlord.
f. Landlord and Tenant shall and each does hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Lease or its termination, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises or any claim of injury or damage and any emergency statutory or any other remedy statutory remedy. In the event Landlord commences any summary proceeding for nonpayment of Rent or right permitted it by law Additional Rent, or commences any other action or proceeding against Tenant in equity or by this Lease:
i) Landlord, connection with or without terminating this Lease, may immediately Tenant will interpose no counterclaim of whatever nature or at description in any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demandsuch proceeding.
ii) Landlord, with g. Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired Term. In the event of a breach or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt anticipatory breach by Tenant of such notice from Landlordany of the covenants or provisions hereof, whereupon Landlord shall have the right of injunction and the right to re-enter invoke any remedy allowed at law or in equity as if reentry, summary proceedings and take possession of the Premisesother remedies were not provided for herein.
iii) h. Prior to exercising any rights or remedies upon a default by Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any will give Landlord notice specifying such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisabledefault, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days after receipt of such notice in which to cure any such default; provided, however, that if such default cannot, by its nature, be cured within such period, Landlord shall not be deemed in default if Landlord shall within such period commence to cure such default and shall diligently prosecute the same to completion. Unless and until Landlord fails so to cure any default after notice, Tenant shall have no remedy or cause of action by reason thereof. All obligations of Landlord hereunder will be construed as covenants, not conditions; all such obligations will be binding upon Landlord only during the period of its ownership of the notice of termination.
vi) The exercise Building and not thereafter; and no default or alleged default by Landlord shall relieve or delay performance by Tenant of any one or more of its obligations to continue to pay Annual Base Rent and Additional Rent hereunder as and when the rights and remedies same shall be due, except as expressly provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and maySection 9a, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityabove.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Deed of Lease (Universal Access Inc)
Default and Remedies. a. The Section 11.1 - Default ---------------------- Tenant shall be in default under this Lease upon the occurrence of any of the following shall constitute a default acts, events or conditions:
(a) The Fixed Minimum Rent, Percentage Rent, Additional Rent or any other sum of money payable under and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental is not paid when due and Additional Rental) due hereunder such failure is not cured within ten (10) days following of the date upon which written notice of such failure is given by Landlord to Tenant [however, such notice and cure period shall not be given more than two (2) times in any twelve (12) month period];
(b) Tenant shall fail to open for business in the Premises as required by this Lease, or shall cease its business operation at the Premises, except as expressly permitted herein, for a period of three (3) consecutive days, or ten (10) non-payment from Landlord to Tenant;
ii) Abandonment consecutive days during any Year, or shall abandon or vacate all or any portion of the Premises (defined as any for a period of one hundred and eighty three (1803) consecutive days, or ten (10) non-consecutive days without operation during any Year (subject to closures due to casualty, condemnation or a remodeling of Tenant’s business the Premises, which closure due to remodeling shall be for a reasonable time given the nature and extent of the remodeling, but in no event greater than 120 days); provided, however, in the Premises);
iii) Failure by event Tenant to observe or perform ceases operations at any time after the 5th Year in excess of the covenants foregoing permitted time periods, then Tenant shall be permitted to pursue a sublessee or assignee for a period of eighteen (18) months without being deemed to be in respect of default under this Lease due to such closure; provided that:
(i) Tenant is using good faith efforts to enter into an assignment and or subletting of this Lease;; and
iv(ii) Failure by Tenant Landlord shall have the right during such eighteen (18) month period to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of elect to recapture the Premises and terminate this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty Lease upon thirty (2030) days after the initial prior written demand for same notice to Tenant;; provided, however, Tenant shall have the right to nullify such termination in the event Tenant gives written notice to Landlord that Tenant intends to reopen for business within the Premises and Tenant, in fact, reopens for business within such thirty (30) day period.
vi(c) Failure by Tenant The failure or refusal of Tenant, at any time during the Lease Term, to observe fulfill or perform any other non-monetary covenant, agreement, condition agreement or provision obligation of this Lease, Tenant hereunder if such failure or refusal shall continue without correction for a period of thirty (30) days after written notice thereof from Landlord to Tenant; , provided that if such covenant, agreement or obligation shall be of such nature that it can be fulfilled or performed and if Tenant in good faith commences to fulfill or perform same within said thirty (30) day period shall period, but due to the nature of same it could not be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured fulfilled or performed within said thirty (30) day period and exercising due diligence, a default by Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released deemed to have occurred if Tenant is then diligently pursuing the fulfillment or discharged within thirty (30) days from performance of the date of such filingcovenant, agreement or obligation and shall thereafter continuously and diligently proceed therewith until completion;
viii(d) The initiation of any proceeding whereupon the estate or interest of Tenant in the Premises, or any guarantor of Tenant’s obligations under portion thereof, or in this Lease becomes insolvent is levied upon or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and attached if such proceeding is not vacated, discharged or bonded within sixty (60) days after the date of such appointmentlevy or attachment;
x(e) Any bankruptcy, reorganization, arrangement, insolvency The entry of any decree or liquidation proceeding, or other proceeding order for relief under any bankruptcy law or similar law for by a court having jurisdiction in the relief Premises in respect of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s 's obligations ("Guarantor") in an involuntary case under this Leasethe federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (Bor similar official) against of Tenant or any guarantor Guarantor or for any substantial part of Tenant’s obligations under this Lease the assets of Tenant or any Guarantor, or the entry of any decree or order with respect to winding-up or liquidation of the affairs of Tenant or any Guarantor, if any such decree or order continues unstayed and is allowed against it or is consented to by it or is not dismissed within in effect for a period of sixty (60) days after such institutionconsecutive days; or
xi(f) Tenant’s repeated failure The commencement by Tenant or any Guarantor of a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or the consent by Tenant or any Guarantor to observe the appointment of or perform possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or any Guarantor or for any substantial part of the other covenants, terms assets of Tenant or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfysuch Guarantor, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt assignment made by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant Guarantor for the remainder benefit of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of terminationcreditors.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease (Harrys Farmers Market Inc)
Default and Remedies. a. The occurrence of Section 16.01. If during the Term any one or more of the following shall constitute a default under and breach acts or events (any one of this Lease by Tenant (such events or acts being herein called an “Event of Default”):) shall occur:
(a) Tenant (i) Failure by Tenant shall, subject to pay Section 3.07(b), default in making the payment of any monetary amounts (including Base Rental installment of the Monthly Rent, or any component thereof, or any Operating Costs or Impositions as and Additional Rental) when the same shall become due hereunder within and payable hereunder, which default continues for a period of ten (10) days following written notice of non-payment thereof from Landlord to Tenant;
Landlord, or (ii) Abandonment shall fail to pay any other amounts payable under this Lease as and when the same shall become due and payable or shall default in any other manner curable by the payment of the Premises money; or
(defined as any period of one hundred and eighty (180b) consecutive days without operation of Tenant’s business Tenant shall default in the Premises);
iii) Failure by Tenant to observe performance of or perform compliance with any of the covenants in respect of assignment and subletting other covenants, agreements, terms or conditions of this Lease;
iv) Failure Lease to be performed by or complied with by Tenant to cure forthwith(other than any default curable by payment of money), immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure default shall continue for a period of thirty (30) days after receipt of written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for , or, in the time reasonably required to complete such curecase of a default which cannot, if such failure cannot reasonably with due diligence, be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days, Tenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such notice and with all due diligence to cure such default and thereafter to prosecute the curing thereof with all due diligence (it being intended that as to a default not susceptible of being cured with due diligence within thirty (30) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence; provided, however that in no event shall the extension of any such cure period exceed any applicable cure periods under the Loan Documents or otherwise result in a cure period exceeding one hundred eighty (180) days); or
(c) Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable Law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of Tenant or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(d) if within ninety (90) days after the filing of an involuntary petition in bankruptcy against Tenant or the commencement of any proceeding against Tenant seeking any reorganization, composition, readjustment or similar relief under any Law, such proceeding shall not have been dismissed, or if, within ninety (90) days after the appointment, without the consent or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of all or any substantial part of the properties of Tenant or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within ninety (90) days after the expiration of any such stay, such appointment shall not have been vacated, or if, within ninety (90) days after the taking of possession, without the consent or acquiescence of Tenant, of the property of Tenant by any Governmental Authority pursuant to statutory authority for the dissolution or liquidation of Tenant, such taking shall not have been vacated or stayed on appeal or otherwise; or
(e) if Tenant shall assign, pledge or encumber any of the rentals or other sums payable from time to time under the Space Leases, other than to Landlord’s lender, as may be requested by ▇▇▇▇▇▇▇▇; or
(f) if, without the consent of Landlord (or as otherwise permitted herein), ▇▇▇▇▇▇’s interest in this Lease or the Term hereby demised shall be mortgaged, encumbered or pledged; or
(g) if any representation, warranty or statement made or deemed to be made by Tenant hereunder or in connection herewith is or proves to have been incorrect or misleading in any material respect when made; or
(h) if it becomes unlawful for Tenant to perform any material obligation hereunder or under any other document executed in connection herewith; or
(i) Tenant ceases to do business or terminates its business as presently conducted for any reason whatsoever or institutes any proceeding for its dissolution or termination; or
(j) if ▇▇▇▇▇▇ fails to deliver possession of the Demised Premises at the end of the Term; or
(k) if any act or omission of Tenant results in the breach of any indenture, deed of trust, mortgage or other instrument (beyond any applicable notice and cure periods contained therein) to which Landlord or Tenant is a party or to which the Demised Premises is bound or may be affected; then, and in any such event, and during the continuance thereof, Landlord may at its option, then or thereafter while any such Event of Default shall continue and notwithstanding the fact that Landlord may have any other remedy hereunder or at law or in equity, and without prejudice to any of the same, pursue one or more of the following remedies: (1) by notice to Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon the date specified in such notice with the same force and effect as if the date specified in such notice were the date herein fixed for the expiration of such filing;
viiithe Term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided and/or (2) pursue any other remedies available to Landlord at law or in equity; so long as the foregoing actions are not prohibited by documents evidencing and/or securing a first mortgage loan secured by the Property. In the event of any Default by Tenant or as hereinabove provided, Landlord shall have the option to enter the Property and do whatever Tenant is obligated to do under the terms of this Agreement and ▇▇▇▇▇▇ agrees to reimburse Landlord on demand for any guarantor of expenses which Landlord may incur in effecting compliance with Tenant’s obligations under this Agreement, and Tenant further agrees that Landlord shall not be liable for any damages resulting to Tenant from such Action.
Section 16.02. If this Lease becomes insolvent or bankrupt or admits is terminated as provided in writing its inability to pay its debts as they matureSection 16.01, or makes as permitted by Law, Tenant shall peaceably quit and surrender the Demised Premises to Landlord, and Landlord may, without further notice, enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any Law or an assignment for order of any court shall be entitled to possession or to remain in possession of the benefit Demised Premises but shall forthwith quit and surrender the Demised Premises. After any termination of creditorsthis Lease, or applies for or consents Landlord will be entitled to recover all unpaid rent that has accrued through the appointment date of a trustee or receiver for all or a major part termination plus the costs of its property;
ix) A trustee or receiver is appointed for Tenant, performing any guarantor of Tenant’s obligations (other than the payment of rent) that should have been but were not satisfied as of the date of such termination.
Section 16.03. Notwithstanding the provisions of 16.01(a)(i) above (but only with respect to failure to fully and timely pay Stated Rent and/or Bonus Rent), it shall not be a default so long as any amounts remain owing under this Lease or the Loan and so long as, after providing for a major part Base Rent, Operating Costs, Impositions and all other obligations hereunder except Stated Rent and Bonus Rent (collectively, the “Expenses”), and after providing for an amount equal to one-half of either partythe amounts owning hereunder as Stated Rent (the “Minimum Current Stated Rent”), all Tenant’s property revenues after Expenses and is not discharged within sixty Minimum Current Stated Rent (60“Cash Flow”) shall be allocated and paid toward Stated Rent and Bonus Rent. The shortfall if any shall be accrued (the “Accrued Stated and Bonus Rent”) and paid as follows:
(a) The Accrued Stated and Bonus Rent shall bear interest at the rate of Prime plus 3% until paid;
(b) Accrued Stated and Bonus Rent plus interest thereon shall be paid on the next succeeding due date of Stated Rent hereunder, to the extent of available Cash Flow;
(c) All Accrued Stated and Bonus Rent plus interest thereon shall be due and payable in full on the earlier of 91 days after such appointment;
(x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, date the Lender’s Loan is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, indefeasibly paid in full or (By) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any the end of the other covenantsTerm, terms or conditions hereof more than three (3) timesprovided however, in all such payment rights hereunder shall be at all times fully subordinated to the aggregate, in any period of twelve (12) consecutive monthsLoan Documents.
b. Section 16.04. Upon the occurrence and during the continuance of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, to any other remedy or right permitted it by remedies available to Landlord under this Lease, at law or in equity or by this Lease:
i) Landlordequity, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter continue this Lease in full force and take possession effect, whether or not Tenant shall have abandoned the Demised Premises. If Landlord elects to continue this Lease in full force and effect pursuant to this Section 16.04, then Landlord shall be entitled to enforce all of the Premises.
iii) Landlord, with or without terminating its rights and remedies under this Lease, may immediately or at any time thereafter, re-enter including the Premises and remove therefrom Tenant and all property belonging right to or placed on the Premises by, at the direction of, or with consent of Tenantrecover rent as it becomes due. Any such re-entry and removal by Landlord shall ▇▇▇▇▇▇▇▇’s election not of itself constitute an acceptance by Landlord of a surrender of to terminate this Lease pursuant to this Section 16.04 or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at pursuant to any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term provision of this Lease, at law or (B) the rents and other charges which in equity, shall not preclude Landlord would be entitled from subsequently electing to receive from Tenant pursuant to the provisions of subsection (iv) if the terminate this Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant or pursuing any of its choice of one other remedies.
Section 16.05. The exercise, or beginning of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise exercise, by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, or otherwise existing at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act , or otherwise, shall not preclude the simultaneous or later exercise by Landlord with respect to of any or all other rights or remedies so provided for or so existing. The obligations of Tenant under this Article 16 shall survive the Premises shall terminate expiration or any earlier termination of this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Master Lease (Versity Invest, LLC)
Default and Remedies. a. The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant Teant (an “Event of Default”):
(i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
(ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
(iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
(iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
(v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
(vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
(vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
(viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
(ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
(x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
(xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
(ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
(iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
(iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
(vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
(vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
c. In the event Landlord fails to perform any of its obligations under this Lease and such non-performance continues for a period of thirty (30) days following written notice of default from Tenant, Landlord shall be deemed to be in material default of this Lease, and Tenant shall have all remedies available at law, in equity or under this Lease; provided, however, that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Landlord commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure.
Appears in 1 contract
Sources: Triple Net Office Lease Agreement (Franklin Financial Network Inc.)
Default and Remedies. a. The occurrence of any one or more of the following events shall constitute a default under and breach hereunder by Tenant:
(a) The abandonment of the Premises by Tenant. Abandonment is herein defined to include, but is not limited to any absence by Tenant from the premises for five (5) days or longer while in default of any provision of this Lease by Tenant Lease.
(an “Event of Default”):
ib) Failure The failure by Tenant to pay make any monetary amounts payment of rent or additional charges required to be paid by Tenant hereunder, as and when due, where such failure shall continue for a period of three (including Base Rental and Additional Rental) due hereunder within ten (103) days following after written notice of non-payment thereof from Landlord to Tenant;.
ii(c) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure The failure by Tenant to observe or perform any of the express or implied covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this LeaseLease to be observed or performed by Tenant, if other than as specified in (a) or (b) above, where such failure shall continue for thirty a period of ten (3010) days after written notice thereof from Landlord to Tenant; provided provided, however, that if the nature of Tenant's default is such thirty that more than ten (3010) day period shall be extended for the time days are reasonably required to complete such for its cure, then Tenant shall not be deemed to be in default if Tenant shall commence such failure cannot reasonably be cured cure within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) ten-day period and thereafter diligently prosecute such cure to completion.
(d) Failure of Tenant to vacate and continuously proceeds to cure such failure;
vii) The levy upon execution or surrender the attachment by legal process Premises and/or give the Landlord full and complete possession of the leasehold interest premises on or before the termination date of this Lease shall constitute a default of the terms of this Lease. Holding over by the Tenant after the termination date of this Lease shall, by itself, constitute a default except when the Landlord has given Tenant written permission to hold over beyond the termination date of this Lease.
14.1 In the event of any such default by Tenant, in addition to any other remedies available to Landlord at law or the filing in equity, Landlord may, without notice or creation demand of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability kind to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:described remedies;
i(a) Landlord, with or without terminating this Lease, Landlord may immediately or at any time thereafter re-enter the Premises and correct take possession of the same and of all equipment and fixtures of Tenant therein and expel or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, remove Tenant and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or all other parties occupying the Premises without terminating this Lease, may immediately or at any time thereafter demand and from time to time relet the premises or any part thereof for the account of Tenant, for such term, upon such conditions and at such rental as Landlord may deem proper. In such event Landlord may receive and collect the rent from such reletting and apply it against any amounts due from tenant hereunder (including without limitation such expenses as Landlord may have incurred in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take recovering possession of the Premises.
iii) , placing the same in good order and condition, altering or repairing the same for reletting, and all other expenses, commissions and charges including attorneys' fees which Landlord may have paid or incurred in connection with such repossession and reletting). Whether or not the Premises are relet, Tenant shall pay Landlord all amounts required to be paid by Tenant up to the date of Landlord's re-entry and thereafter Tenant shall pay Landlord, with or without terminating until the end of the term hereof, the amount of all rent and other charges required to be paid by Tenant hereunder, less the proceeds of such reletting during the term hereof, if any, after payment of Landlord's expenses as provided above and prorated to the amount caused by tenants default. Such payments by Tenant shall be due at such times as are provided elsewhere in this Lease, and Landlord need not wait until the termination of this Lease to recover them by legal action or otherwise. Landlord shall not, by any re-entry or other act, be deemed to have terminated this Lease or the liability of Tenant for the total rent hereunder unless Landlord shall give Tenant written notice of Landlord's election to terminate this Lease.
(b) Landlord may immediately or at any time thereaftergive written notice to Tenant of Landlord's election to terminate this Lease, re-enter the Premises with or without process of law and take possession of the same and of all equipment and fixtures therein, and expel or remove therefrom Tenant and all property belonging other parties occupying the Premises, using such force as may be reasonably necessary to or placed on the Premises bydo so, at the direction of, or with consent of Tenant. Any without being liable to any prosecution for such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of for the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs use of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved hereinforce.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence If Tenant defaults in its performance of any of the following shall constitute a default under and breach of this Lease by Tenant covenants, conditions, agreements, or undertakings contained herein (an “Event of Default”):
i), and such Event of Default continues for thirty (30) Failure by days after written notice from Landlord (subject to a reasonable extension if a cure is not practical during such period and Tenant has commenced cure and is diligently pursuing the same), or if Tenant should fail to pay any monetary amounts cause the Premises to be occupied and used as stated herein (including Base Rental the alternative uses described in this Lease), then, subject to the notice and Additional Rental) due hereunder within ten (10) days following written notice cure rights of non-payment from any Tenant Mortgagee as stated in Article 6, Landlord may exercise any rights or remedies it has at law or in equity against Tenant including but not limited to Tenant;
ii) Abandonment the right to remove and eject Tenant and all persons occupying any part of the Premises (defined as any period of one hundred Premises, and eighty (180) consecutive days without operation of Tenant’s business in Landlord shall be entitled to terminate this Lease. In the Premises);
iii) Failure by Tenant event Landlord shall fail to observe or perform any of the covenants in respect of assignment and subletting covenants, obligations or agreements of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute Lease and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days (subject to a reasonable extension if a cure is not practical during such period and Landlord has commenced cure and is diligently pursuing the same, or such shorter time as may be appropriate in the event of an emergency) after receipt of written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure setting forth such failure;
vii) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter cure such failure and take possession to recover all costs of curing said default from Landlord. In the event Landlord shall fail to perform any of the Premises.
iii) Landlordcovenants, with obligations or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender agreements of this Lease or and such failure shall continue for ninety (90) days after receipt of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for written notice setting forth such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminatedfailure, Tenant shall continue have the right to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Ground Lease Agreement
Default and Remedies. a. The occurrence of (a) If either party (the “Defaulting Party”) should default with respect to any of the following shall constitute a default under its obligations hereunder and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder should fail, within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after receipt of written notice thereof of such default from Landlord the non-defaulting party (the “Complaining Party”) ”) to Tenant; provided the Defaulting Party, who shall also have the right, but not the obligation to cure such default (or if the nature of the default is such that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure it cannot reasonably be cured within said such thirty (30) day period days, then such additional time as may be necessary and Tenant commences reasonable under the circumstances provided, and for so long as, the Defaulting Party has commenced and diligently continues to pursue such cure) then the Complaining Party shall have the right, in addition to other rights and remedies which may be available at law or in equity, to cure such failure within said thirty (30) day period default for the account of the Defaulting Party, and thereafter diligently thereupon the Complaining Party shall be entitled to reimbursement by the Defaulting Party for the reasonable costs and continuously proceeds expenses so incurred. Notwithstanding the foregoing, if the nature of the default is such that it has caused an emergency situation, meaning that there is imminent danger to life or property, the Complaining Party may cure such default for the account of the Defaulting Party immediately. Any notice hereunder shall specify with particularity the nature of the default claimed and shall set forth in detail the action which the Complaining Party proposes to take in order to cure the claimed default. To effectuate such failure;
vii) The levy upon execution or cure, the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord Complaining Party shall have the right to re-enter and take possession upon the property of the PremisesDefaulting Party (but not any building on such property) to perform the necessary work or furnish any necessary materials or services to cure the default of the Defaulting Party.
iii(b) LandlordNotwithstanding anything to the contrary contained herein, with in no event shall the Complaining Party have any right to terminate this Agreement (whether at law, in equity or without terminating otherwise) as a result of any default or failure to perform by the Defaulting Party, it being agreed that this LeaseAgreement may not be terminated except pursuant to a written instrument executed by the then fee simple owners of the properties, may immediately but not otherwise.
(c) Each party shall have the right to prosecute any proceedings at law or at in equity against any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction ofother party hereto, or with consent any other person, violating or attempting to violate or defaulting in the performance of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or any of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved provisions contained in this LeaseAgreement, but Tenant shall not be entitled in order to receive any excess prevent such party or person from violating or attempting to violate or defaulting in the performance of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection this Agreement and to recover actual damages for any such violation or default. The remedies available under this Section shall include, by way of illustration but not limitation, temporary restraining orders, preliminary injunctions and permanent injunctions enjoining any such violation or attempted violation or default (iv) if or commanding compliance with the Lease were not terminated. Such election shall be made by Landlord by serving written notice provisions hereof), and actions for specific performance of this Agreement, each upon Tenant the proof of its choice such breach or threatened or attempted breach, and without the necessity of one proving the inadequacy of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of legal remedies and without compliance with any one requirements to post a bond or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein providedsecurity. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, permitted or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises available hereunder shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantcumulative.
Appears in 1 contract
Default and Remedies. a. The occurrence of any Section 10 of the following Lease shall constitute a default under be deleted in its entirety and breach of this Lease by Tenant (an “Event of Default”):
i) Failure by Tenant replaced with the following: If Lessee fails to pay any monetary amounts (including Base Rental and Additional Rental) rent due hereunder under this Lease within ten (10) days following of receiving written notice from Lessor of non-payment from Landlord such failure, or Lessee fails to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition covenants or provision of conditions contained in this Lease, if such failure shall continue for Lease within thirty (30) days after receiving written notice thereof from Landlord to Tenant; provided Lessor of such nonperformance (or if the default is of such a nature that such it cannot be cured within thirty (30) day period days, and Lessee fails to commence and pursue such cure with diligence within thirty (30) days of receiving such written notice of nonperformance from Lessor), then Lessee shall be extended for in default hereunder. In the time reasonably required event of a default and failure to complete cure by Lessee, Lessor may, at its option, exercise one or more of the following remedies (i) terminate this Lease; (ii) retake possession of the Premises without terminating the Lease; (iii) relet the Premises, and (iv) pursue any other remedies available at law or in equity. In such cureevent, Lessor shall use reasonable efforts to mitigate its damages. Lessor shall be in default under this Lease if Lessor fails to perform any covenant or obligation contained within this Lease within thirty (30) days after receiving written notice from Lessee of such failure cannonperformance. In the event such nonperformance is not reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or if the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect default is of such leasehold interest, which lien shall a nature that it cannot be released or discharged cured within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition todays, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, Lessor fails to commence and pursue such cure with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives diligence within thirty (30) days of the receiving such written notice of termination.
vi) The exercise by Landlord of any one nonperformance from Lessee), Lessee may elect to cure such nonperformance and deduct the cost thereof from Lessee’s monthly rental obligation or more of the rights and remedies provided in terminate this Lease shall not prevent the subsequent exercise by Landlord of and pursue any one or more of the other rights and all remedies herein provided. All remedies provided for in this Lease are cumulative and may, available to Lessee at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to . In the Premises shall terminate this Leaseevent of any dispute between the parties, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises prevailing party shall be presumed entitled to be for recover its attorneys’ fees and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise courts costs in writing to Tenantsuch dispute.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nn Inc)
Default and Remedies. a. 16.1 The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant Tenant:
(an “Event a) The abandonment of Default”):the Premises by Tenant.
i(b) Failure by The failure of Tenant to pay make any monetary amounts (including Base Rental and Additional Rental) payment of Rent or any other sum or payment due from Tenant hereunder within ten (10) days following after delivery of a written notice of non-payment demand from Landlord to Tenant;therefor.
ii(c) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure The failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting covenants, conditions or provisions of this Lease;
iv, other than described in Section 16.1(b) Failure by Tenant to cure forthwithabove, immediately after receipt where such failure shall continue for a period of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from by Landlord to Tenant; provided provided, however, that if the nature of Tenant's default is such thirty that more than twenty (3020) day period shall be extended for the time days are reasonably required to complete such for its cure, then Tenant shall not be deemed to be in default if Tenant commences such failure cannot reasonably be cured cure within said thirty twenty (30) day period and Tenant commences to cure such failure within said thirty (3020) day period and thereafter diligently and continuously proceeds prosecutes such cure to cure such failure;completion.
vii(d) The levy upon execution making by Tenant of any general assignment or general arrangement for the attachment by legal process benefit of the leasehold interest of Tenant, creditors; or the filing by or creation against Tenant of a lien petition to have Tenant adjudged as bankrupt, or a petition of reorganization or arrangement under any law relating to bankruptcy (unless in respect the case of such leasehold interestpetition filed against Tenant, which lien shall the same is dismissed within sixty (60) days); or the appointment of a trustee or a receiver to take possession of all or substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is not be released or discharged restored to Tenant within thirty (30) days from days; or the date attachment, execution or other judicial seizure of such filing;
viii) Tenant all or any guarantor substantially all of Tenant’s obligations under 's assets located at the Premises or of Tenant's Interest in this Lease becomes insolvent or bankrupt or admits Lease, where such Seizure is not discharged in thirty (30) days; the admission by Tenant in writing its of the inability to pay its debts as they maturebecome due.
(e) Failure by Tenant to renew the Standby Letter of Credit as defined in Exhibit F attached hereto.
16.2 Upon the occurrence of a default by Tenant as provided in Section 16.1, Landlord shall have the following rights and remedies in addition to all other rights and remedies available to Landlord in law or makes an assignment equity;
(a) The rights and remedies provided by California Civil Code Section 1951.2, including, but not limited to, the right to terminate Tenants right to possession of the Premises and to recover the worth at the time of award of the amount by which the unpaid Rent and Additional Charges for the benefit balance of creditorsthe Term after the time of award exceed the amount of rental loss for the same period that the Tenant proves could be reasonably avoided, as computed pursuant to subsection (b) of said Section 1951.2;
(b) The rights and remedies provided by California Civil Code Section 1951.4, which allows Landlord to continue this Lease in effect and to enforce all of its rights and remedies under this Lease, including the right to recover Rent and additional Charges as they become due, for so long as Landlord does not terminate Tenant's right to possession. Acts of maintenance or applies for preservation, efforts to relet the Premises or consents to the appointment of a trustee or receiver for all or upon Landlord's initiative to protect its interest under this Lease shall not constitute a major part termination of its propertyTenant's right to possession;
ix(c) A trustee or receiver is appointed The right to terminate this Lease by giving notice to Tenant in accordance with applicable law;
(d) The right and power, as attorney-in-fact for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all persons and property, to store such property thereon belonging to in a public warehouse or placed on the Premises by, elsewhere at the direction ofcost of and for the account of Tenant, or with consent of Tenant within ten (10) days of receipt and to sell such property and apply the proceeds therefrom pursuant to applicable California law; provided, however, that the foregoing remedy shall only apply to a default by Tenant in payment of such notice from capital rent. Landlord, whereupon Landlord shall have the right to reas attorney-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Leasein-fact for Tenant, may immediately or at any from time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet sublet the Premises or any part thereof for such time term or times, terms (which may extend beyond the Term) and at such rental or rentals rent and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, with the right to make alterations and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate Premises. Upon each such reletting; and subletting, (i) Tenant shall pay all reasonable costs be immediately liable for payment to Landlord of, in addition to indebtedness other than Rent and Additional Charges due hereunder, the cost of such reletting; subletting and if this Lease shall not have been terminated, Tenant shall continue to pay all rent such alterations and all other charges due under this lease up to repairs incurred by Landlord and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the differenceamount, if any, between by which the rent Rent and Additional Charges for the period of such subletting (to the extent such period does not exceed the Term) exceeds the amount to be paid as Rent and Additional Charges for the Premises for such period, or (ii) at the option of Landlord, rents received from such subletting shall be applied, first, to payment of any indebtedness other charges collected than Rent and Additional Charges due hereunder from Tenant to Landlord; second, to the payment of any costs of such subsequent tenant or tenants subletting and of such alterations and repairs; third, to payment of Rent and Additional Charges due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future Rent and Additional Charges as the same become due hereunder. If Tenant has been credited with any rent to be received by such subletting under clause (i) and other charges reserved in this Lease, but Tenant such rent shall not be entitled promptly paid to receive Landlord by the subtenant(s), or it such rentals received from such subletting under clause (ii) during any excess of month are less than those to be paid during that month by Tenant hereunder, Tenant shall pay any such rents collected over deficiency to Landlord. Such deficiency shall be calculated and paid monthly. For all purposes set forth in this Section 16.2(d), Landlord is hereby irrevocably appointed attorney-in-fact for Tenant with power of substitution. No taking possession of the rents reserved herein.
v) Premises by Landlord, as attorney-in- fact for Tenant, shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant. Notwithstanding any such subletting without termination, Landlord may immediately or at any time thereafter elect to terminate this Lease, and this Lease shall be deemed for such previous breach; and
(e) The right to have been terminated a receiver appointed for Tenant, upon receipt application by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination includingLandlord, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering to take possession of the Premises, the cost of Premises and to apply any alteration of or repair to rental collected from the Premises which is necessary or proper and to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of exercise all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein granted to Landlord as attorney-in-fact for Tenant pursuant to Section 16.2(d) hereof; provided. All remedies provided for , however, that the foregoing remedy shall only apply to a default by Tenant in payment of capital rent.
16.3 If Tenant shall default in the performance of its obligations under this Lease are cumulative and mayLease, Landlord, at the election of Landlordany time thereafter and without notice, be exercised alternativelymay remedy such default for Tenant's account and at Tenants expense, successively, or in any other manner and are in addition to without thereby waiving any other rights provided for or allowed by law or in equity.
vii) No act by remedies of Landlord with respect to such default.
16.4 If Landlord fails to perform its obligations under this Lease within fifteen (15) days after notice by Tenant to Landlord specifying the Premises shall terminate this Lease, including, but not limited to, acceptance nature of the keysobligations Landlord has failed to perform, institution Landlord shall be in default hereunder. If the nature of Landlord's obligations is such that more than fifteen (15) days are required for performance, then Landlord shall not be in default if Landlord commences performance within such fifteen (15) day period and thereafter diligently prosecutes the same to completion. In the event of a default by Landlord hereunder, Tenant's remedies shall include an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenantdamages and/or an injunction.
Appears in 1 contract
Sources: Office Lease (Andromedia Inc)
Default and Remedies. a. (a) The occurrence of any one or more of the following events shall constitute a material default under and breach of this Lease Sublease by Tenant Sublessee:
(an “Event of Default”):
i) Failure The failure by Tenant Sublessee to pay make any monetary amounts payment of rent or any other payment required to be made by Sublessee hereunder, as and when due, where such failure shall continue for a period of three (including Base Rental and Additional Rental) due hereunder within ten (103) days following after written notice of non-payment from Landlord thereof by Sublessor to TenantSublessee;
(ii) Abandonment The abandonment (but not vacation of the Subleased Premises (defined as any period provided Sublessee continue to timely pay all rent due hereunder) of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises)Subleased Premises by Sublessee;
(iii) Failure The failure by Tenant Sublessee to observe or perform any of the covenants in respect of assignment and subletting covenants, conditions or provisions of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required Sublease to be completedobserved or performed by Sublessee, executed and delivered by Tenant within where such failure shall continue for a period of twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord by Sublessor to Tenant; provided Sublessee. If the nature of such default is such that the same cannot be reasonably cured within such thirty twenty (3020) day period, Sublessee shall not be deemed to be in default hereunder if Sublessee shall within such period shall be extended for commence such cure and thereafter diligently prosecute the time reasonably required same to complete such curecompletion, if such provided Master Landlord has not declared a material default and breach of the Master Lease as a result of Sublessee's failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failuredefault;
vii(iv) The levy upon execution making by Sublessee of any general assignment or general arrangement for the attachment by legal process benefit of the leasehold interest of Tenant, creditors; or the filing by or creation against Sublessee of a lien petition to have Sublessee adjudged a bankrupt, or a petition for reorganization or arrangement under any law, now existing or hereafter amended or enacted, relating to bankruptcy or insolvency (unless, in respect the case of such leasehold interesta petition filed against Sublessee, which lien shall Sublessee has not be released consented to, or discharged admitted the material allegation of said petition is dismissed within thirty (30) days from the date of such filing;
viii) Tenant days); or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or a receiver for (other than in a bankruptcy or insolvency proceeding) to take possession of substantially all of Sublessee's assets located at the Subleased Premises or of Sublessee's interest in this Sublease, where possession is not restored to Sublessee within thirty (30) days; or
(v) Sublessee causes a major part material default and breach under the Master Lease.
(b) In the event of its property;any such material default or breach by Sublessee, Sublessor may, at any time thereafter, with or without notice or demand, and without limiting Sublessor in the exercise of any right or remedy which Sublessor may have hereunder, under the Master Lease as incorporated herein or otherwise at law or in equity by reason of such default or breach, including, but not limited to:
ix(i) A trustee Terminate this Sublease and Sublessee's right to possession of the Subleased Premises by notice to Sublessee or receiver is appointed for Tenantany other lawful means, any guarantor in which case this Sublease shall terminate and Sublessee shall immediately surrender possession of Tenant’s obligations the Subleased Premises to Sublessor. In such event Sublessor shall be entitled to recover from Sublessee all unpaid installments of rent and other sums due and owing under this Lease or for a major part Sublease as of either party’s property the date of Sublessee's default and is all damages incurred by Sublessor by reason of Sublessee's default, including, but not discharged within sixty (60) days after such appointment;limited to:
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor The cost of Tenant’s obligations under this Lease, or recovering possession of the Subleased Premises; or
(B) against Tenant or any guarantor The worth at the time of Tenant’s obligations under this Lease and is allowed against it or is consented to award by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Sublessee proves could be reasonably avoided. Unpaid installments of rent or other covenants, terms or conditions hereof more than three (3) times, sums shall bear interest from the date due at the highest legal rate permissible in the aggregateState where the Subleased Premises are located. In the event Sublessee shall have abandoned the Subleased Premises, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but Sublessor shall have the option to do of (1) taking possession of the Subleased Premises and perform any one recovering from Sublessee the amounts specified hereinabove, or more (2) proceeding under the provisions of the following paragraphs (ii) and/or (iii).
(ii) Maintain Sublessee's right to possession, in addition towhich case this Sublease shall continue in effect whether or not Sublessee shall have abandoned the Subleased Premises. In such event Sublessor shall be entitled to enforce all of Sublessor's rights and remedies under this Sublease, including, without limitation, the right to recover the rent as it becomes due hereunder. Notwithstanding any election by Sublessor not to terminate this Sublease or Sublessee's right to possession, and whether or not in limitation ofSublessor has sublet the Subleased Premises or any part thereof as provided hereinabove, any other remedy or Sublessor shall retain the right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, to and may immediately or at any time thereafter re-enter elect to terminate this Sublease or Sublessee's right to possession for any default of Sublessee which remains uncured or for any subsequent default of Sublessee by giving Sublessee written notice thereof.
(iii) Pursue any other remedy now or thereafter available to Sublessor under the laws or judicial decisions of the State in which the Subleased Premises and correct are located.
(c) No entry or repair taking of possession of the Subleased Premises or any condition which part thereof by Sublessor, nor any subletting thereof by Sublessor for Sublessee, nor any appointment of a receiver, nor any other act of Sublessor, whether acceptance of keys to the Subleased Premises or otherwise, shall constitute or be construed as an election by Sublessor to terminate this Sublease or Sublessee's right to possession of the Subleased Premises unless a failure on Tenant’s part written notice of such election be given to keepSublessee by Sublessor.
(d) In the event Sublessor elects to terminate this Sublease or Sublessee's right to possession hereunder, observe, perform, satisfy, or abide by any term, Sublessee shall surrender and vacate the Subleased Premises in broom-clean condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, Sublessor may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the PremisesSubleased Premises and may eject all parties in possession or eject some and not others or eject none. Any personal property of or under the control of Sublessee remaining on the Subleased Premises at the time of such re- entry may be considered and treated by Sublessor as abandoned.
iii(e) Landlord, with Termination of this Sublease or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging Sublessee's right to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal possession by Landlord Sublessor shall not of itself constitute an acceptance by Landlord of a surrender relieve Sublessee from any liability to Sublessor under any provision of this Lease or Sublease providing for any indemnification of the Premises Sublessor by Tenant and shall not of itself constitute a termination of this Lease by LandlordSublessee.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Sublease Agreement (Ubid Inc)
Default and Remedies. a. The occurrence A. Each of the following shall be deemed an event of default by Borrower (each, an "Event of Default"):
(1) If any representation or warranty of any of the following shall constitute a default Borrower Parties set forth in any of the Loan Documents is false in any material respect or if any of the Borrower Parties renders any statement or account which is false in any material respect.
(2) If any principal, interest or other monetary sum due under and breach the Notes, the Mortgages or any other Loan Document is not paid within five days after the date when due; provided, however, notwithstanding the occurrence of this Lease by Tenant (such an “Event of Default”):
i) Failure by Tenant , Lender shall not be entitled to pay any monetary amounts (including Base Rental exercise its rights and Additional Rental) due hereunder within ten (10) days following written remedies set forth below unless and until Lender shall have given Borrower notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any thereof and a period of one hundred and eighty five days from the delivery of such notice shall have elapsed without such Event of Default being cured.
(1803) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant If Borrower fails to observe or perform any of the other covenants (except with respect to a breach of the Fixed Charge Coverage Ratio, which breach is addressed in respect of assignment and subletting subitem (7) below), conditions, or obligations of this Lease;
iv) Failure by Tenant Agreement; provided, however, if any such failure does not involve the payment of any monetary sum, is not willful or intentional, does not place any rights or interest in collateral of Lender in immediate jeopardy, and is within the reasonable power of Borrower to cure forthwith, immediately within the period provided below after receipt of notice from Landlordthereof, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if then such failure shall continue for thirty (30) days after written not constitute an Event of Default hereunder, unless otherwise expressly provided herein, unless and until Lender shall have given Borrower notice thereof from Landlord to Tenant; provided that and a period of 30 days shall have elapsed, during which period Borrower may correct or cure such thirty (30) day period failure, upon failure of which correction or cure an Event of Default shall be extended for the time reasonably required deemed to complete such cure, if have occurred hereunder without further notice or demand of any kind being required. If such failure cannot reasonably be cured within said thirty (such 30) -day period, and Borrower is diligently pursuing a cure of such failure, then Borrower shall have a reasonable period and Tenant commences to cure such failure within said thirty (beyond such 30) -day period and thereafter diligently and continuously proceeds period, which shall not exceed 90 days after receiving notice of the failure from Lender. If Borrower shall fail to correct or cure such failure;
viifailure within such 90-day period, an Event of Default shall be deemed to have occurred hereunder without further notice or demand of any kind being required. Notwithstanding anything in this subitem (3) The levy upon execution to the contrary, if a breach of one or more of the attachment by legal covenants in Section 6.F. shall have occurred as a result of any occurrence or event or series of occurrences or events and that occurrence or event or series of occurrences or events may be, or shall be required to be, Remediated under applicable Environmental Laws or directive of any Governmental Authority having jurisdiction over such matter, the cure period for such breach of that covenant or those covenants shall be deemed extended if Borrower promptly commences the process of effecting the leasehold interest Remediation of Tenantsuch occurrence or event or series of occurrences or events within the cure period set forth in this subitem (3) and Borrower continuously and diligently pursues and completes such Remediation in accordance with applicable Environmental Laws and directives of any Governmental Authority having jurisdiction over such matter until either:
(i) Borrower ceases the Remediation in accordance with this subitem (3); or (ii) completes the Remediation.
(4) If any of the Borrower Parties becomes insolvent within the meaning of the Code, files or notifies Lender that it intends to file a petition under the Code, initiates a proceeding under any similar law or statute relating to bankruptcy, insolvency, reorganization, winding up or adjustment of debts (collectively, an "Action"), becomes the subject of either a petition under the Code or an Action (and, if such petition or Action is involuntary, such petition or Action is not dismissed within 60 consecutive days), or is not generally paying its debts as the filing same become due.
(5) If an "Event of Default" has occurred and is continuing under any other Loan Document, the Equipment Loan Documents, the Lease, any of the Related Leases, any of the Affiliated Borrower Loan Documents or creation there is a breach or default, after the passage of all applicable notice and cure or grace periods, under any of the Other Agreements. SCS Finance I, L.P. Mortgage Loan
(6) If a lien final, nonappealable judgment is rendered by a court against any of the Borrower Parties which (i) has a material adverse effect on the operation of any of the Premises as a Permitted Concept, or (ii) is in respect of an amount greater than $350,000 as to Borrower, or $700,000 as to any guarantor, and not covered by insurance, and, in either case, is not discharged or provision made for such leasehold interest, which lien shall not be released or discharged discharge within thirty (30) 60 days from the date of entry of such filing;judgment.
viii(7) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of If there is a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any breach of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any Fixed Charge Coverage Ratio requirement and Lender shall have given Borrower notice thereof and Borrower shall have failed within a period of twelve (12) consecutive months.
b. Upon 30 days from the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant delivery of such notice from Landlord, whereupon Landlord shall have to (i) pay to Lender the right FCCR Amount (without premium or penalty) with respect to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, (starting with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals with the lowest Fixed Charge Coverage Ratio and upon such other terms and conditions as Landlord proceeding in its sole discretion may deem advisable, and Landlord may make any alterations or repairs ascending order to the Premises which it may deem with the next lowest Fixed Charge Coverage Ratio) as is necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including cure the date of beginning of payment of rent by any subsequent tenant of part or all breach of the Premises, Fixed Charge Coverage Ratio requirement and thereafter Tenant shall pay monthly during for which the remainder then Fixed Charge Coverage Ratio (with the definitions in Section 6.J being deemed to be modified as applicable to provide for the calculation of the term Fixed Charge Coverage Ratio for each such Premises on an individual basis rather than on an aggregate basis with the other Premises) is below 1.25:1 (each, a "Subject Premises"), (ii) prepay the Note corresponding to the Subject Premises in whole but not in part (without premium or penalty) or (iii) notify Lender of this Lease Borrower's election to substitute a Substitute Premises for each Subject Premises in accordance with the difference, if any, between terms of Section 11 in an attempt to cure the rent and other charges collected from any breach of the Fixed Charge Coverage Ratio (the failure of Borrower to complete such subsequent tenant or tenants and substitution within 60 days after Lender shall have given the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease notice discussed above shall be deemed to have been terminated upon receipt by Tenant be an Event of written Default without further notice or demand of any kind being required). For purposes of the preceding sentence, "FCCR Amount" means that sum of money which, when subtracted from the outstanding principal amount of the Note corresponding to a Subject Premises, and assuming the resulting principal balance is reamortized in equal monthly payments over the remaining term of such termination; upon Note at the rate of interest set forth therein, will result in an adjusted aggregate Fixed Charge Coverage Ratio for all of the Premises of at least 1.25:1 based on the prior year's operations. Promptly after Borrower's payment of the FCCR Amount, Borrower and Lender shall execute an amendment to each such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason Note, in form and substance reasonably acceptable to Lender, reducing the principal amount payable to Lender under such Note and reamortizing the principal amount of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages Note in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease monthly payments over the then reasonable rental value of the Premises for the remainder of the remaining term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, such Note at the election rate of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equityinterest set forth therein.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The occurrence If (i) default shall be made in the prompt payment of Rent or any installment thereof and such default shall continue for five (5) or more days after written notice to Tenant, or (ii) default shall be made in the payment of any sum required to be paid by Tenant under the terms of any other agreement between Landlord and Tenant and such default shall continue for five (5) days after written notice to Tenant, or (iii) default shall be made in the observance or performance of any of the following shall constitute a default under and breach of other covenants or conditions in this Lease by which Tenant is required to observe and perform and such default shall continue for ten (an “Event 10) business days after written notice to Tenant; provided, however, if such default is of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder the nature that cannot be cured within ten (10) business days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure the default and diligently pursues such failure within said thirty (30) day period and thereafter diligently and continuously proceeds cure, Tenant shall have such time as is reasonably necessary to cure such failure;
viidefault, not to exceed ninety (90) The levy days, or (iv) a default involves a hazardous condition and is not cured by Tenant immediately upon execution or the attachment by legal process of the leasehold interest of written notice to Tenant, or (v) the interest of Tenant in this Lease shall be levied or under execution or attached by process of law, or (vi) any voluntary petition in bankruptcy or for corporate reorganization or any similar relief shall be filed by Tenant, or (vii) any involuntary petition in bankruptcy shall be filed against Tenant under any federal or state bankruptcy or insolvency act and shall not have been dismissed within sixty (60) days from the filing thereof, or creation (viii) a receiver shall be appointed for Tenant or any of a lien in respect the property of Tenant by any court and such leasehold interest, which lien receiver shall not be released or discharged have been dismissed within thirty sixty (3060) days from the date of such filing;
viiihis appointment, or (ix) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes shall make an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedingTenant shall admit in writing Tenant's inability to meet Tenant's debts as they mature, or other proceeding for relief under (xi) Tenant shall abandon or vacate the Premises during the Term without paying Rent, then and in any bankruptcy law such event Landlord if it so elects, with or similar law for without notice or demand, may treat the relief occurrence of debtorsany one or more of the foregoing events as a breach of this Lease, is instituted (A) by and thereupon at its option may, with or without notice or demand of any kind to Tenant or any guarantor of Tenant’s obligations under this Leaseother person, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following described remedies (any of which may be pursued by Landlord in its own name or by and in the name of the beneficiaries of Landlord or the agent of such beneficiaries) in addition to, to all other rights and not in limitation of, any other remedy or right permitted it by remedies provided at law or in equity or elsewhere herein:
(a) Landlord may terminate this Lease and the Term created hereby, in which event all Rent provided to be paid by Tenant for the balance of the original Term shall immediately become due and payable and Landlord may forthwith repossess the Premises and be entitled to recover forthwith as damages (1) all of the Base Rent accrued and unpaid for the period up to and including such termination date, as well as Additional Rent payable by Tenant, (2) the unamortized cost of leasehold improvements, additions, alterations, leasing commissions, abatements, and other concessions, if any, paid for by Landlord pursuant to this Lease:
i, (3) any other sums for which Tenant is liable or in respect of which Tenant has agreed to indemnify Landlord under any provisions of this Lease which may be then due and owing and (4) a sum of money equal to the value of the Rent provided to be paid by Tenant for the balance of the original Term, less the rental value of the Premises for said period net of the costs and expenses of reletting ("Rental Value"), and plus any other sum of money and damages owed by Tenant to Landlord, with all discounted to a net present value using an interest rate of five percent (5%). Should the Rental Value exceed the value of the Rent provided to be paid by Tenant for the balance of the original Term of the Lease, Landlord shall have no obligation to pay to Tenant the excess or any part hereof.
(b) Landlord may terminate Tenant's right of possession and may repossess the Premises by forcible entry and detainer suit, by taking peaceful possession or otherwise as provided in Paragraph B of this Section 20, without terminating this LeaseLease or releasing Tenant, may immediately in whole or at any time thereafter re-enter in part, from Tenant's obligation to pay Rent hereunder for the Premises full Term. Upon and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation after entry into possession without termination of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right use commercially reasonable efforts to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for the account of Tenant, for such time or timesRent, at for such rental or rentals time, and upon such other terms and conditions as shall be satisfactory to Landlord in its sole discretion may deem advisable, and Landlord may shall not be required to accept any tenant offered by Tenant nor to observe any instructions given by Tenant at such reletting. For the purpose of such reletting, Landlord is authorized to decorate or to make any repairs, alterations or repairs additions in or to the Premises which it may deem necessary or proper Premises. If Landlord shall fail to facilitate such reletting; and relet the Premises, Tenant shall pay all reasonable costs to Landlord as damages a sum equal to the amount of such reletting; and if the Rent reserved in this Lease for the balance of its original Term. If the Premises are relet and a sufficient sum shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or be realized from such reletting after paying all of the Premisescosts and expenses of such decorations, repairs, changes, alterations and thereafter Tenant shall pay monthly during additions and the remainder other expenses of such reletting and of the term collection of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant accruing therefrom to equal or tenants and exceed the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies Rent provided for in this Lease are cumulative for the balance of its original Term, Tenant shall satisfy and may, at pay such deficiency upon demand therefor from time to time. Tenant agrees that Landlord may file suit to recover any sums falling due under the election terms of this Section 20 from time to time and that no suit or recovery of any portion due Landlord hereunder shall be any defense to any subsequent action brought for any amount theretofore reduced to judgment in favor of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Office Lease (Universal Access Inc)
Default and Remedies. a. The occurrence If either Party fails (i) to make any payments when due hereunder (each a “Monetary Default”) and such failure continues for a period of 30 days after such Party’s receipt of written notice of such failure from the non-defaulting Party; or, (ii) fails to perform any of such Party’s non-monetary obligations hereunder (each a “Non-monetary Default”) and such failure continues for a period of 30 days after such Party’s receipt of written notice from the following shall constitute a default under non-defaulting Party specifying in detail such failure, or such longer period of time as may be necessary to cure the failure, provided that such defaulting Party commences to cure within such thirty-day period and breach of this Lease by Tenant (thereafter diligently prosecutes the cure to completion, then the non-defaulting Party may exercise the remedies set forth below. Monetary and Non-monetary Defaults are collectively referred to herein as an “Event of Default”):
i) Failure .” Except as qualified by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice Section 13 regarding Lender protections, should an Event of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure canDefault not reasonably be cured within said thirty (30) day period and Tenant commences to applicable cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution or periods, then the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter renon-enter the Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall defaulting Party will have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at exercise any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging remedies available to or placed on the Premises by, it at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act , all of which will be cumulative, including the right to enforce this Lease by Landlord with respect injunction, specific performance or other equitable relief; provided, however, notwithstanding the foregoing or anything else in this Lease to the contrary or any rights or remedies Landlord might have at law or in equity, if any of Tenant’s Solar Facilities are then located on the Premises shall and Tenant commits a Non-monetary Default that is not cured within the applicable cure period, Landlord will be limited to pursuing damages and Landlord may not commence any action to terminate or cancel this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Solar Energy Ground Lease
Default and Remedies. a. The occurrence of (a) Lessee shall be in default under this Agreement if: (i) Lessee fails to pay Rent or any other payment due and owing hereunder within five (5) business days of the following shall constitute a default under and breach of this Lease by Tenant due date thereof; (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant Lessee fails to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwithobserve, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe keep or perform any other non-monetary covenant, agreement, term or condition or provision of this Lease, if Agreement or any other Lease Document and such failure shall continue continues for thirty (30) days after following receipt of written notice thereof from Landlord to TenantLessor; provided provided, that if such thirty (30) default is a non-monetary default capable of being cured but cannot be cured within such thirty-day period, and Lessee is diligently pursuing such cure, the cure period shall be extended for so long as is necessary to effect such cure (but in no event in excess of sixty (60) days beyond such thirty-day period); (iii) any representation or warranty made by Lessee herein or in any document delivered to Lessor in connection herewith shall prove to be false or misleading in any material respect and the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution false or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect misleading nature of such leasehold interest, which lien shall representation or warranty is not be released or discharged corrected within thirty (30) days following receipt of written notice thereof from Lessor; (iv) a breach ________________________________________ of the date of such filing;
viiicovenant set forth in Section 26(c) Tenant or any guarantor of Tenant’s obligations under this Lease shall have occurred; (v) Lessee becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they matureinsolvent, dissolves, or makes an assignment assigns its assets for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under enters any bankruptcy law or similar law for the relief of debtors, is instituted reorganization proceeding; (vi) (A) by Tenant any Project Document or material Governmental Approval has been terminated without the prior written approval of Lessor to the extent Lessor’s approval is required hereunder; or (B) any default has occurred and is continuing under any material provision of a Project Document or any guarantor material Governmental Approval and any cure period provided thereunder has terminated without such default having been cured; (vii) Lessee undergoes a change in ownership or control of Tenant’s obligations any type without the prior written approval of Lessor; (viii) any “Default” (as such term is defined in the Guaranty) has occurred and is continuing under the Guaranty or the Guaranty fails to provide Lessor the rights intended to be created thereby, ceases to be in full force and effect or the validity thereof is disaffirmed by Lessee or the Guarantor; or (ix) Lessee is in default of any obligation in excess of $100,000 (after any applicable cure period)(each of (i) through (ix), a “Default”).
(b) If a Default shall have occurred and be continuing under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but Lessor shall have the option right to do and perform take any one or more of the following actions with respect to this Lease: (i) cancel or terminate this Lease, (ii) enter onto the premises and take possession of or otherwise repossess the Equipment and, at the option of Lessor, cause the Lessee to promptly assign to Lessor the Project Documents and Governmental Approvals as if the Equipment were being returned in addition to, and not in limitation of, any other remedy connection with the Return Option; (iii) proceed by appropriate court action or right permitted it by actions at law or in equity or to enforce performance by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter Lessee of the Premises terms and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation conditions of this LeaseAgreement and/or recover damages for the breach thereof; (iv) cause all moneys on deposit in the Accounts for this Lease to be paid directly to the account of Lessor, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate but only to the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession extent of the Premises.
iiiamount actually owed by Lessee to Lessor hereunder; (v) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and accelerate all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of amounts due hereunder for this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue requiring Lessee to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) Lessor an amount equal to the excesssum of (A) all Rent and any other unpaid amounts accrued to the date of such payment, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or plus (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection Stipulated Loss Value; (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of its rights set forth in Section 11(b); (vii) take any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies action as provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in Assignment Agreement; and/or (viii) exercise any other manner and are in addition to any other rights provided for right or allowed by remedy available at law or in equity.
vii(c) No act by Landlord with respect Upon Lessee’s payment in full to Lessor of the Premises amounts set forth in Section 19(b)(v), this Lease shall terminate this Lease(except as set forth in Section 22) and, including, but not limited to, acceptance at the request of the keysLessee, institution of Lessor shall transfer its ownership and rights in the Equipment to Lessee or Lessee’s designee on an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant“as is,” “where is” basis.
Appears in 1 contract
Sources: Lease Agreement
Default and Remedies. a. The occurrence of (a) Lessee shall be in default under this Agreement if: (i) Lessee fails to pay Rent or any other payment due and owing hereunder within five (5) days of the following shall constitute a default under and breach of this Lease by Tenant due date thereof; (an “Event of Default”):
i) Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant;
ii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business in the Premises);
iii) Failure by Tenant Lessee fails to observe or perform any of the covenants in respect of assignment and subletting of this Lease;
iv) Failure by Tenant to cure forthwithobserve, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant;
vi) Failure by Tenant to observe keep or perform any other non-monetary covenant, agreement, term or condition or provision of this Lease, if Agreement or any other Lease Document and such failure shall continue continues for thirty (30) days after following receipt of written notice thereof from Landlord to TenantLessor; provided that if such thirty (30) default is capable of being cured but cannot be cured within such thirty-day period, and Lessee is diligently pursuing such cure, the cure period shall be extended for so long as is necessary to effect such cure (but in no event in excess of ninety (90) days beyond such thirty-day period); (iii) any representation or warranty made by Lessee herein or in any document delivered to Lessor in connection herewith shall prove to be false or misleading and the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure;
vii) The levy upon execution false or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect misleading nature of such leasehold interest, which lien shall representation or warranty is not be released or discharged corrected within thirty (30) days following receipt of written notice thereof from Lessor; provided that if such default is capable of being cured but cannot be cured within such thirty‑day period, and Lessee is diligently pursuing such cure, the date cure period shall be extended for so long as is necessary to effect such cure (but in no event in excess of ninety (90) days beyond such filing;
viiithirty-day period); (iv) Tenant any event set forth in Section 11(b)(i) or any guarantor (ii) or a breach of Tenant’s obligations under this Lease the covenant set forth in Section 26(c) shall have occurred; (v) Lessee becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they matureinsolvent, dissolves, or makes an assignment assigns its assets for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under enters any bankruptcy law or similar law for the relief of debtors, is instituted reorganization proceeding; (vi) (A) by Tenant any Project Document or material Governmental Approval has been terminated without the prior written approval of Lessor or (B) any default has occurred and is continuing under any material provision of a Project Document or any guarantor material Governmental Approval and any cure period provided thereunder has terminated without such default having been cured; (vii) Lessee or Parent undergoes a change in ownership or control of Tenant’s obligations any type without the prior written approval of Lessor; (viii) any “Default” (as such term is defined in the Guaranty) has occurred and is continuing under the Guaranty or the Guaranty fails to provide Lessor the rights intended to be created thereby, ceases to be in full force and effect or the validity thereof is disaffirmed by Lessee or the Guarantor; or (ix) any “Default” has occurred and is continuing under any lease agreement (as such term is defined in such agreement) that currently or may hereinafter exist between Lessor and any affiliate of Lessee or Guarantor (each of (i) through (ix), a “Default”).
(b) If a Default shall have occurred and be continuing under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but Lessor shall have the option right to do and perform take any one or more of the following actions with respect to this Lease: (i) cancel or terminate this Lease, (ii) enter onto the premises and take possession of or otherwise repossess the Equipment and, at the option of Lessor, cause the Lessee to promptly assign to Lessor the Project Documents and Governmental Approvals as if the Equipment were being returned in addition to, and not in limitation of, any other remedy connection with the Return Option; (iii) proceed by appropriate court action or right permitted it by actions at law or in equity or to enforce performance by this Lease:
i) Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter Lessee of the Premises terms and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation conditions of this LeaseAgreement and/or recover damages for the breach thereof; (iv) cause all moneys on deposit in the Accounts for this Lease to be paid directly to the account of Lessor, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate but only to the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession extent of the Premises.
iiiamount actually owed by Lessee to Lessor hereunder; (v) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and accelerate all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of amounts due hereunder for this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue requiring Lessee to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) Lessor an amount equal to the excesssum of (A) all Rent and any other unpaid amounts accrued to the date of such payment, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or plus (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection Stipulated Loss Value; (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of its rights set forth in Section 11(b) herein; (vii) take any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies action as provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in Assignment Agreement; and/or (viii) exercise any other manner and are in addition to any other rights provided for right or allowed by remedy available at law or in equity.
vii(c) No act by Landlord with respect Upon Lessee’s payment in full to Lessor of the Premises amounts set forth in Section 19(b)(v), this Lease shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise (except as set forth in writing to TenantSection 22).
Appears in 1 contract
Default and Remedies. a. Section 12.1 The occurrence of any one or more of the following events shall constitute a default under and breach of this Lease by Tenant (an “Event of Default”):
i” under this Lease: (a) Failure by Tenant fails to pay any monetary amounts Rent hereunder as and when such Rent becomes due and such failure shall continue for more than five (including Base Rental 5) Business Days after the date due; (b) Tenant fails to take possession of the Premises for the performance of the Leasehold Improvements within four (4) months after the execution of this Lease and Additional Rentalthe delivery of possession of the Premises to Tenant; (c) due hereunder within Tenant permits to be done anything which creates a lien upon the Premises and fails to satisfy its obligations as and when required by Article 10; (d) Tenant violates the provisions of Article 7 by making an unpermitted Transfer; (e) Tenant fails to maintain in force all policies of insurance required by this Lease and such failure shall continue beyond the earlier to occur of (i) the lapse of such policy and (ii) ten (10) days following written after Landlord gives Tenant notice of non-payment from Landlord to Tenant;
iisuch failure; (f) Abandonment any petition is filed by or against Tenant under any present or future section or chapter of the Premises Bankruptcy Code, or under any similar law or statute of the United States or any state thereof (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business which, in the Premisescase of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within ninety (90) days of commencement);
iii, or if any order for relief shall be entered against Tenant or any guarantor of this Lease in any such proceedings; (g) Failure by Tenant to observe becomes insolvent or perform any makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors; (h) a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the covenants in respect assets of assignment and subletting Tenant or of any guarantor of this Lease;
iv, which appointment is not vacated within ninety (90) Failure by days following the date of such appointment; (i) Tenant fails to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant originally post the Security Deposit as required pursuant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant Article 19 hereof within twenty (20) days Business Days after the initial full execution and delivery of this Lease or thereafter restore the Security Deposit as required pursuant to Article 19 hereof within five (5) Business Days after receipt of written demand for same notice from Landlord; or (j) Tenant fails to Tenant;
vi) Failure by Tenant to perform or observe or perform any other non-monetary covenant, agreement, condition or provision terms of this Lease, if Lease (other than those specified above in this Section 12.1) and such failure shall continue continues for more than thirty (30) days after Landlord gives Tenant written notice thereof from Landlord to Tenant; provided that of such failure in the case of a non-emergency, or immediately in the case of an emergency, or, if such non-emergency failure cannot be corrected within such thirty (30) day period shall be extended for the time reasonably required to complete such cureperiod, if such failure canTenant does not reasonably be cured within said thirty (30) day period and Tenant commences commence to cure correct such failure within said thirty (30) day period and thereafter diligently and continuously proceeds prosecute the correction of same to cure completion within an additional period of time reasonably necessary to correct such failure;
vii, but not to exceed an additional ninety (90) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing;
viii) Tenant or any guarantor of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and is not discharged within sixty (60) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive monthsdays.
b. Upon Section 12.2 During the occurrence continuance of an any Event of Default, Landlord agrees to use reasonable efforts to mitigate may pursue at its damages, but shall have the option to do and perform any one or more of the following in addition towithout further notice or demand to Tenant, Tenant hereby expressly waiving the requirement of service of any statutory notice or demand as a condition precedent to Landlord’s exercising any of the following rights:
A. Terminate this Lease and Tenant shall pay to Landlord, upon demand, an accelerated lump sum amount equal to the amount, if any, by which Landlord’s commercially reasonable estimate of the aggregate amount of Base Rent and Tenant’s Operating Costs Payment owing from the date of such termination through the scheduled expiration date of the Term, plus Landlord’s commercially reasonable estimate of the aggregate expenses of reletting the Premises (which expenses shall include, without limitation, brokerage fees, leasing commissions, legal fees and tenant concessions incurred or estimated to be incurred by Landlord and costs of removing and storing Tenant’s or any other occupants’ property, repairing, altering, remodeling or otherwise putting the Premises into condition acceptable to a new tenant or tenants, and not all reasonable expenses incurred by Landlord in limitation ofpursuing its remedies, any other remedy or right permitted it by law or in equity or by this Lease:
i) including reasonable attorneys’ fees and court costs [collectively, “Reletting Costs"]), exceeds Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter ’s commercially reasonable estimate of the fair rental value of the Premises and correct or repair any condition for the same period (after giving effect to the time needed to relet the Premises) both discounted to present value at the rate at which shall constitute U.S. Treasuries are then yielding for a failure on term closest to the scheduled expiration date of the Term; or
B. Terminate Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation right of possession of the Premises without termination of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises by summary proceedings or otherwise, expel Tenant and remove therefrom Tenant and all property belonging therefrom, using commercially reasonable efforts to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all market rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between receive the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Leasetherefrom, but provided, however, Tenant shall not be entitled to receive any excess such rent and shall remain liable for the equivalent of the amount of all Rent reserved herein less the avails of reletting, if any, after deducting therefrom the Reletting Costs. Any and all monthly deficiencies so payable by Tenant pursuant to this clause shall be paid monthly on the date herein provided for the payment of Base Rent. (Notwithstanding anything contained herein to the contrary, the parties agree that using commercially reasonable efforts to relet the Premises shall not require Landlord to (i) relet the Premises in preference to any other space in the Building; (ii) relet the Premises to any party or entity that Landlord could reasonably reject as an assignee or sublessee pursuant to Article 7 hereof; or (iii) offer rent, length of terms or other terms for the Premises which would be less favorable to Landlord than what is being offered for comparable space in the Building. The parties further agree that the immediately preceding sentence sets forth only examples of circumstances when Landlord will not be deemed to have failed to use reasonable efforts to relet the Premises and is not intended to be an exhaustive list of all such rents collected over situations.); or
C. Apply against any amounts owed by Landlord to Tenant, any amounts then due and payable by Tenant to Landlord; or
D. At its option, but without any obligation, perform any obligation of Tenant under this Lease and, if Landlord so elects, all costs and expenses incurred by Landlord in performing such obligations, together with interest thereon at the rents reserved hereinInterest Rate from the date incurred until paid in full, shall be reimbursed by Tenant to Landlord on demand and shall be considered Rent for purposes of this Lease; or
E. Re-enter, seize and take possession of Tenant’s Property located at the Premises, all of which shall be deemed abandoned by Tenant and to sell such property at public or private sale or otherwise discard or dispose of such property, without being liable for prosecution or any claim for damages thereof. Landlord shall apply the amounts received from the sale of Tenant’s Property against amounts due Landlord by Tenant hereunder (after deducting therefrom Landlord’s expenses incurred in connection with the storage and sale of such items); or
F. Immediately cease providing Tenant with any additional services that are provided pursuant to Section 6.1B hereof.
v) Section 12.3 No agreement to accept a surrender of the Premises and no act or omission by Landlord may immediately or at any time thereafter Landlord’s agents during the Term shall constitute an acceptance or surrender of the Premises unless made in writing and signed by Landlord. No re-entry or taking possession of the Premises by Landlord shall constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant. Except as specifically provided above with respect to Landlord’s obligation to use commercially reasonable efforts to relet the Premises, no provision of this Lease shall be construed as an obligation upon Landlord to mitigate Landlord’s damages under the Lease, and except to the extent required by applicable Requirements.
Section 12.4 No provision of this Lease shall be deemed to have been terminated upon receipt waived by Tenant Landlord unless such waiver is in writing and signed by Landlord. Landlord’s acceptance of written notice Rent following an Event of Default hereunder shall not be construed as a waiver of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason Event of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages Default. No custom or practice between the parties in rentals, costs, charges, additional rentals, and reimbursements, connection with the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term terms of this Lease over the then reasonable rental value shall be construed to waive or lessen Landlord’s right to insist upon strict performance of the Premises for the remainder of the term terms of this Lease, or (B) the rents and other charges which without a written notice thereof to Tenant from Landlord.
Section 12.5 The rights granted to Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election in this Article 12 shall be made by Landlord by serving written notice upon Tenant cumulative of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one every other right or more of the rights and remedies remedy provided in this Lease shall not prevent or which Landlord may otherwise have at law or in equity or by statute, and the subsequent exercise by Landlord of any one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of the other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to Landlord by reason of any Event of Default under this Lease. Tenant agrees to pay to Landlord all costs and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act expenses incurred by Landlord in connection with respect to an Event of Default and the Premises shall terminate enforcement of this Lease, including, but not limited to, acceptance including all attorneys’ fees incurred in connection with the collection of any sums due hereunder or the keys, institution enforcement of an action for detainer any right or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting remedy of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Default and Remedies. a. The (a) In addition to the circumstances hereinbefore set forth, the occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant Tenant:
(an “Event of Default”):
i) Failure the filing of any voluntary petition or similar pleading under any section or sections of any bankruptcy or insolvency act by or against Tenant or the institution of any voluntary or involuntary proceeding in any court or tribunal to declare Tenant insolvent or unable to pay Tenant's debts as they mature and, in the case of an involuntary petition or proceeding, the petition or proceeding is not dismissed within forty-five (45) days from the date it is filed, or the making of an assignment for the benefit of its creditors by Tenant, or the appointment of a trustee or receiver for Tenant or for the major part of Tenant's property;
(ii) Tenant's failure to pay the monthly Base Rental, Additional Rent or any other sum due hereunder, if such nonpayment continues for five (5) or more days after the date notice of such late payment is provided to Tenant; provided, however, if more than one (1) payment due of Tenant hereunder in any twelve (12) month period during the Term is not made until after notice of such late payment is received by Tenant, then it shall be a default hereunder by Tenant to pay if any monetary amounts subsequent payment due of Tenant hereunder in the same twelve (including Base Rental and Additional Rental12) due hereunder month period is not made within ten five (105) days following written notice of non-payment from Landlord to Tenantafter the date the same is due;
ii(iii) Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenant’s business 's default in the Premises);
iii) Failure by Tenant to observe or perform prompt and full performance of any of the covenants in respect of assignment and subletting other provision of this Lease;
iv) Failure by Lease and Tenant to does not cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;
v) Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant the default within twenty (20) days after the initial written demand for same by Landlord that the default be cured (unless the default involves a condition dangerous to Tenant;
vi) Failure by Tenant person or property, or which will become worse if no immediate action is taken to observe or perform any other non-monetary covenantcure such default, agreementin which event such default shall be cured forthwith upon Landlord's demand); provided, condition or provision of this Leasehowever, if Tenant has commenced efforts to cure the default during such failure period and diligently prosecutes such efforts to completion, Tenant shall continue for thirty have additional time (30not to exceed ninety (90) days after written notice thereof from Landlord to Tenant; provided that such thirty (30days) day period shall be extended for the time reasonably required to complete such curecure as is reasonably necessary under the circumstances in question.
(iv) the levy, if such failure cannot reasonably be cured within said thirty (30) day period and execution or attachment against assets of Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failurelocated in the Premises;
vii(v) The levy Tenant's failure to take possession or occupancy of the Premises;
(vi) Tenant shall do or permit to be done anything that creates a lien upon execution the Premises or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a Building and such lien in respect of such leasehold interest, which lien shall is not be released removed or discharged within thirty (30) days from of the date of such filingfiling thereof;
viii(vii) Tenant or any guarantor shall fail to return a properly executed instrument to Landlord in accordance with the provisions of Tenant’s obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment Paragraph 32 hereof within the time period provided for such return following Landlord's request for the benefit of creditorssame as provided in Paragraph 32, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property;
ix) A trustee or receiver is appointed for Tenant, any guarantor of Tenant’s obligations under this Lease or for a major part of either party’s property and which failure is not discharged cured within sixty ten (6010) days after such appointment;
x) Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, written notice thereof is instituted (A) given by Tenant or any guarantor of Landlord to Tenant’s obligations under this Lease, or (B) against Tenant or any guarantor of Tenant’s obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or
xi) Tenant’s repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months.
b. (b) Upon the occurrence of an Event of Defaultany default by Tenant as aforesaid, Landlord agrees Landlord, in addition to use reasonable efforts to mitigate its damagesany and all other rights or remedies it may have at law or in equity, but shall have the option to do and perform of pursuing any one or more of the following in addition toremedies:
(i) Landlord shall have the immediate right of reentry and may remove all property from the Premises to a warehouse or elsewhere at the cost of, and not for the account of Tenant, all without being deemed guilty of trespass or becoming liable for any loss, damage or damages which may be occasioned thereby;
(ii) Landlord may terminate this Lease by giving notice of termination, in limitation ofwhich event this Lease shall expire and terminate on the date specified in such notice of termination, any other remedy or right permitted it by law or in equity or by with the same force and effect as though the date so specified were the date herein originally fixed as the expiration date of the Term of this Lease:, and all rights of Tenant under this Lease and in and to the Premises shall expire and terminate, and Tenant shall remain liable for all obligations under this Lease arising up to the date of such termination, and Tenant shall surrender the Premises to Landlord on the date specified in such notice;
i(iii) LandlordLandlord may terminate this Lease as provided in subparagraph 16(b)(ii) hereof and recover from Tenant all damages Landlord may incur by reason of Tenant's default, including, without limitation, a sum which, at the date of such termination, represents the then present value (calculated at the rate of twelve percent (12%) interest per annum) of the excess, if any, of (A) the Base Rental (including without limitation, increases in Base Rental pursuant to Paragraph 6 hereof), Additional Rent, and all other sums which would have been payable hereunder by Tenant for the period commencing with or the day following the date of such termination and ending with the date hereinbefore set for the expiration of the full term hereby granted, over (B) the aggregate reasonable rental value of the Premises (less reasonable brokerage commissions, attorneys' fees and other costs relating to the reletting of the Premises) for the same period, all of which excess sum shall be deemed immediately due and payable;
(iv) Landlord may, without terminating this Lease, may declare immediately due and payable all Base Rental, Additional Rent, and other rents and amounts due and coming due under this Lease for the entire remaining Term hereof, together with all other amounts previously due, at once; provided, however, that such payment shall not be deemed a penalty or at any time thereafter re-enter liquidated damages but shall merely constitute payment in advance of rent for the remainder of said Term; upon making such payment, Tenant shall be entitled to receive from Landlord all rents received by Landlord from other assignees, tenants and subtenants on account of said Premises and correct or repair any condition which shall constitute a failure on Tenant’s part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation during the Term of this Lease, and provided that the monies to which Tenant shall fully reimburse so become entitled shall in no event exceed the entire amount actually paid by Tenant to Landlord pursuant to this clause (iv) less all costs, expenses and compensate Landlordattorneys' fees of Landlord incurred in connection with the reletting of the Premises; or
(v) Landlord may, for Landlord’s actual cost incurred, on demand.
ii) Landlord, with or from time to time without terminating this Lease, may immediately and without releasing Tenant in whole or at any time thereafter demand in writing that Tenant vacate part from Tenant's obligation to pay Base Rental, Additional Rent and all other amounts due under this Lease and perform all of the Premises covenants, conditions and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging agreements to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt be performed by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises.
iii) Landlord, with or without terminating provided in this Lease, may immediately or at any time thereaftermake such alterations and repairs as necessary to relet the Premises, re-enter the Premises and, after making such alterations and remove therefrom Tenant and all property belonging to or placed on the Premises byrepairs, at the direction ofLandlord may, or with consent of Tenant. Any such re-entry and removal by Landlord but shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord.
iv) Landlordbe obligated to, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, term (which may be for a term extending beyond the Term of this Lease) at such rental or rentals and upon such other terms and conditions as Landlord in its sole reasonable discretion may deem advisableadvisable or acceptable; upon each reletting, all rentals received by Landlord from such reletting shall be applied first, to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorneys' fees, and of costs of such alterations and repairs; third, to the payment of the Base Rental, Additional Rent and other charges due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied against payments of future Base Rental, Additional Rent or other charges as the same may make become due and payable hereunder. In no event shall Tenant be entitled to any excess rental received by Landlord over and above charges that Tenant is obligated to pay hereunder, including Base Rental, Additional Rent and all other charges; if such rentals received from such reletting during any month are less than those to be paid during the month by Tenant hereunder, including Base Rental, Additional Rent and all other charges, Tenant shall pay any such deficiency to Landlord, which deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord as soon as ascertained and upon demand all costs and expenses incurred by Landlord in connection with such reletting and in making any alterations or and repairs to which are not covered by the Premises which it may deem necessary or proper to facilitate rentals received from such reletting; and notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach.
(c) Landlord's reentry, demand for possession, notice that the tenancy hereby created will be terminated on the date therein named, institution of an action of forcible detainer or ejectment or the entering of a judgment for possession in such action or any other act or acts resulting in the termination of Tenant's right to possession of the Premises shall not relieve Tenant shall from Tenant's obligation to pay all reasonable costs sums due hereunder, except as herein expressly provided. Landlord may collect and receive any Base Rental, Additional Rent or other charges due from Tenant, and the payment thereof shall not constitute a waiver of or affect any notice or demand given, suit instituted or judgment obtained by Landlord, or be held to waive, affect, change, modify or alter the rights or remedies which Landlord has in equity or at law or by virtue of this Lease.
(d) If Landlord commences any proceedings for nonpayment of Base Rental, Additional Rent or other sums due hereunder, Tenant win not interpose any counterclaim of whatever nature or description which is not directly related to the Lease in any such reletting; proceeding. This shall not, however, be construed as a waiver of Tenant's right to assert such claims in any separate action or actions brought by Tenant. Any action brought under or with respect to this Lease must be brought in a court located in Atlanta, Georgia, and if having jurisdiction therein.
(e) All sums past due from Tenant under this Lease shall not have been terminatedbear interest at twelve percent (12%) per annum, but in no event in excess of the maximum lawful rate, from due date until paid in full.
(f) Except as expressly provided in this Lease, Tenant hereby waives any and every form of demand and notice prescribed by statute or other law, including without limitation the notice of any election of remedies made by Landlord under this Paragraph, demand for payment of any rent, or demand for possession.
(g) All rights and remedies of Landlord created or otherwise existing at law are cumulative, and the exercise of one or more rights or remedies shall continue not be taken to exclude or waive the right to exercise any other.
(h) Tenant shall and hereby agrees to pay all rent costs and all other charges due under expenses incurred by Landlord in enforcing any of the covenants and agreements of this lease up to and including the date Lease, or as a result of beginning of payment of rent an action brought by any subsequent tenant of part or all Landlord against Tenant for an unlawful detainer of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the differenceall such costs, expenses and attorneys' fees shall, if anypaid by Landlord, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
v) Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys’ fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder to Landlord within fifteen (15) days of Landlord's written demand therefor, together with interest at eighteen percent (18%) per annum, but in no event in excess of the term maximum lawful rate, from the date of this Lease over Landlord's payment thereof.
(i) In the then reasonable rental value event of a default hereunder beyond applicable periods of notice and cure, Landlord may declare Tenant in default under any or all other agreements between Landlord and Tenant or any affiliate of Tenant, whether in effect now or following the Premises for the remainder of the term date of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination.
vi) The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity.
vii) No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
Appears in 1 contract
Sources: Lease Agreement (Compbenefits Corp)