Default by Sublessee. 18.1. The occurrence of any of the following events shall constitute a Default and breach of this Sublease by Sublessee: A. The failure by Sublessee to pay when due the Basic Rent, or Additional Rent, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven (7) business days after written notice thereof by Sublessor to Sublessee. B. The abandonment or vacation of the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more. C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion. D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed. E. If any guarantor attempts to revoke its Guaranty. 18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor: (1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and (2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee: (i) any unpaid rent up to the effective date of termination; plus (ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus (iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus (iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law. 18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee. 18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting. 18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise. 18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee. 18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 2 contracts
Sources: Sublease Agreement (FlexEnergy Green Solutions, Inc.), Sublease Agreement (FlexEnergy Green Solutions, Inc.)
Default by Sublessee. 18.1. The occurrence If Sublessee shall default in the performance of any of the following events shall constitute a Default and breach of terms, covenants, conditions or agreements contained in this Sublease by Sublessee:
A. The failure by Sublessee to pay when due the Basic Rent, or Additional Rent, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven (7) business days after written notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation of the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such which default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving upon ten (10) days written notice of such intention to terminate for non-monetary defaults and seven (7) days written notice for monetary defaults, duly served in the manner specified set forth herein, or Sublessor may elect among if Sublessee shall commit any one or more of the following remedies without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations default under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) Master Lease to the extent allowed by law, that the right provisions thereof are applicable to undertake to cure Sublessee’s default, Sublessee which default is not cured upon three (3) days written notice duly served in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Subleasemanner set forth herein, then in addition to any other rights or remedies Sublessor may recover from Sublesseehave under this Sublease and at law and in equity, Sublessor or Master Landlord, as the case may be, shall have the following rights:
(i) To invoke any unpaid rent up to or all of the effective date of termination; plusremedies which are specified for Master Landlord under the Master Lease as if Sublessor were the Master Landlord.
(ii) To re-enter the Premises and remove all amounts persons and all or any property therefrom either by summary dispossess proceedings, ejectment or by any suitable action or proceeding at permitted by law or in equity, without being liable to indictment, prosecution or damages therefor, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon lawfully recovering possession of the Premises by reason of a default on the part of Sublessee which default is not cured upon ten (10) days written notice duly served in the manner set forth herein, Sublessor may, at Sublessor‘s option, terminate this Sublease or make such alterations and repairs as may be necessary in order to compensate relet the Premises or any part or parts thereof, either in Sublessor‘s name or otherwise. Sublessor shall in no event be liable in any way whatsoever for all the detriment proximately caused by Sublessee’s failure to perform relet the Premises.
(iii) Sublessee shall be in "default" of its obligations under this Sublease or which in for failure to comply with the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term terms and conditions of this Sublease; provided, howeverincluding without limitation, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain make timely payment of Basic Rent and Additional Rent, or failure to comply with the interior terms and conditions of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plusMaster Lease which are applicable to Sublessee pursuant to the terms of this Sublease.
(iv) In addition, Sublessor may, at Sublessor‘s option, enter the Premises and take and hold possession thereof without such other amounts entry into possession terminating this Sublease or releasing Sublessee in addition to whole or in lieu part from Sublessee‘s obligation to pay the Rent and Additional Rent hereunder for the full stated Term of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3this Sublease. In the event of any Upon such default by Sublesseere-entry, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and may remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Under no circumstances Upon and after entry into possession, Sublessor may but need not relet the Premises, or any part for such rent, for such time and upon such terms as Sublessor, in Sublessor‘s sole discretion, shall determine, subject to the requirements of the Master Lease, and Sublessor shall not be held liable in damages required to accept any sublessee offered by Sublessee or otherwise to observe any instruction given by reason of Sublessee about any such peaceable reentry or eviction or reletting. In any such case, Sublessor may make necessary repairs to the Premises to the extent reasonably deemed by reason Sublessor necessary and Sublessee shall, within ten (10) days of demand therefor, pay the exercise reasonable costs thereof together with Sublessor‘s expense of reletting. If the consideration collected by Sublessor upon any such reletting for Sublessee‘s account and after deducting all reasonable expenses incident thereto actually incurred, including non-affiliate brokerage fees and reasonable legal expenses, is not sufficient to pay monthly the full amount of Rent and Additional Rent provided in this Sublease, Sublessee shall pay to Sublessor the amount of each deficiency upon demand.
(v) No waiver by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed breach by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days Sublessee‘s obligations, agreements or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting covenants herein shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or subsequent breach of any default obligation, agreement or covenant, nor shall any forbearance by Sublessee.
18.7. Notwithstanding Sublessor to seek a remedy for any other provision of this Sublease, in the event the breach by Sublessee in be a waiver by Sublessor of any rights and remedies with respect to such breach or any subsequent breach and the reasonable opinion foregoing remedies of Sublessor or PDA affects or is likely to affect the efficient operation do not waive any right of the Airport or give rise Master Landlord to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA exercise its remedies under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such actionMaster Lease.
Appears in 1 contract
Default by Sublessee. 18.1. The occurrence of (a) If Sublessee fails to perform any of the following events shall constitute a Default terms, covenants and breach agreements of this Sublease by Sublessee:
A. The failure by Sublessee to pay when due Sublease, including, but not limited to, the Basic Rentpayment of any rent or any additional rent, or Additional Rent, or if any other payment required to be made by Sublessee to Sublessor hereunder where event of default as described in the tenant default sections of the Lease shall occur and such failure continues for seven default shall not have been remedied within five (75) business days after written notice thereof by from Landlord or Sublessor (a "Sublessee Default"), Sublessor, in addition to the remedies given in this Sublease or under law or in equity, may do any one or more of the following:
(i) terminate this Sublease, at which time Sublessee shall surrender the Premises to Sublessor;
(ii) enter and take possession of the Premises either with or without process of law and remove Sublessee, with or without having terminated this Sublease; and
(iii) alter locks and other security devices at the Premises.
B. The abandonment (b) Sublessee waives any and all claims for damages incurred by reason of Sublessor's reentry, repossession, or vacation alteration of locks or other security devices and for damages lawfully incurred by reason thereof. If Sublessor terminates this Sublessee or ends Sublessee's right to possess the Premises because of a Sublessee Default, Sublessee shall be liable for any rent and any additional rent due hereunder, for the remainder of the Subleased Premises by Sublessee while in material breach or default of any other provision term of this Sublease that lasts for thirty (30) days or morehad there been no Sublessee Default, as well as any and all costs incurred by Sublessor in enforcing its remedies hereunder.
C. The failure (c) Sublessee hereby waives the service of any notice of intention to re-enter or to institute legal proceedings which may otherwise be required to be given under any present or future law. Sublessee, on Sublessee's own behalf and on behalf of all persons claiming through or under Sublessee, including all creditors, does further hereby waive any and all rights which Sublessee and all such persons might otherwise have under any present or future law to redeem the Premises, or to re-enter or repossess the Premises, or to restore the operation of this Sublease, after (i) Sublessee shall have been dispossessed by Sublessee to observe and perform a judgment or by warrant of any other provision court or judge, or (ii) any re-entry by Sublessor, or (iii) any expiration or termination of this Sublease (including without limitation compliance with federaland the term hereof, state whether such dispossess, re-entry, expiration or termination shall be by operation of law or pursuant to the provisions of this Sublease. The words "re-enter", "re-entry" and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty"re-business-day period, Sublessee entered" as used in this Sublease shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same restricted to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2their technical legal meanings. In the event of a breach or threatened breach by Sublessee or any Default by persons claiming through or under Sublessee, of any term, covenant or condition of this Sublease on Sublessee's part to be observed or performed, Sublessor shall have the option right to terminate enjoin such breach and the right to invoke any other remedy allowed by law or in equity as if re-entry, summary proceedings and other special remedies were not provided in this Sublease for such breach. The right to invoke the remedies hereinbefore set forth are cumulative and all rights shall not preclude Sublessor from invoking any other remedy allowed at law or in equity.
(d) No surrender of Sublessee hereunder by giving ten (10) days written notice possession of such intention to terminate in the manner specified hereinPremises, or Sublessor may elect among any one part thereof, or more the surrender of the following remedies without limiting remaining term of this Sublease, shall release Sublessee from any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · hereunder unless accepted and agreed to by Sublessor in writing. The receipt and retention by Sublessor of any rent or any additional rent due hereunder from anyone other than Sublessee, or with Sublessor's knowledge of any breach of any covenant, agreement, term or provision shall not be deemed a decree or order by a court waiver of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by lawcovenant, the right to undertake to cure Sublessee’s defaultagreement, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease term or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in or as a release of Sublessee from the event the breach further keeping, observance or performance by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concernscovenants, in addition to any other remedy it may have under agreements, terms, provisions and conditions of this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Sources: Sublease (Carecentric Inc)
Default by Sublessee. 18.1. The occurrence 10.1 Upon the happening of any of the following events shall constitute a Default and breach of this Sublease by Sublesseefollowing:
A. The failure by a. Sublessee fails to pay when its monthly rent within five (5) days of its due the Basic Rent, or Additional Rent, or date;
b. Sublessee fails to pay any other payment required to be made by amount due from Sublessee to Sublessor hereunder where and such failure continues for seven five (75) business days after written notice thereof by Sublessor thereof;
c. Sublessee fails to Sublessee.
B. The abandonment perform or vacation of the Subleased Premises by Sublessee while in material breach or default of observe any other provision of covenant or agreement set forth in this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty five (305) business days after written notice thereof by from Sublessor to Sublessee; provided that or
d. Any other event occurs which involves Sublessee or the Sublet Premises and which would constitute a default under the Master Sublease or the Lease if it involved Sublessor or the nature of such default is such that premises covered by the same cannot reasonably be cured within such thirty-business-day period, Master Sublease and the Lease; Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure hereunder, and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies exercise, without limiting limitation any other rights and remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree it hereunder or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to at law or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concernsequity, in addition to any other remedy it may have under this Subleaseand all rights and remedies of Landlord set forth in the Master Sublease or the Lease in the event of a default by Sublessor thereunder.
10.2 In the event Sublessee fails or refuses to make any payment or perform any covenant or agreement to be performed hereunder by Sublessee, Sublessor and PDA under the terms of the Primary Lease shall also be entitled may make such payment or undertake to perform such covenant or agreement (but shall not be obligated) under no obligation to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure do so). In such situation event, amounts so paid and Sublessee amounts extended in undertaking such performance, together with all costs, and expenses (excluding attorney’s fees), if any, in connection therewith, shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such actionbe additional rent hereunder.
Appears in 1 contract
Sources: Sublease (Noble International, Ltd.)
Default by Sublessee. 18.1. The occurrence of If (i) at any time Sublessee fails to pay any portion of the following events Rent by the day when the same shall constitute a Default become due and breach of this Sublease by Sublessee:
A. The failure by Sublessee to pay when due the Basic Rentpayable (provided, or Additional Renthowever, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven shall not trigger a default one time in any given calendar quarter during the Term hereof unless such failure shall continue following the passage of three (73) business days after written Sublessor gives Sublessee notice thereof by Sublessor of such failure) or (ii) if Sublessee fails to Sublessee.
B. The abandonment or vacation perform any of the Subleased Premises by Sublessee while in material breach other terms, conditions or default of any other provision covenants of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such other than the payment of Rent, and said failure continues shall continue for thirty a period of fifteen (3015) business days after the service of written notice thereof by of such breach from Sublessor to Sublessee; provided Sublessee (provided, however, that if the nature of such default the failure of performance is such that the same cannot more than fifteen (15) days is reasonably be cured within required for its cure, then Sublessee shall have an additional period of time as is reasonably required to cure such thirty-business-failure (but no more than an additional fifteen (15) day period, ) so long as Sublessee shall not be deemed to be in default if Sublessee shall within such period commence commences such cure within said initial fifteen (15) day period and thereafter diligently prosecutes such cure to completion by the same additional fifteen (15) day period, or (iii) Sublessee vacates, abandons or surrenders all or any part of the Subleased Premises prior to completion.
D. The making by Sublessee the expiration date of any general assignment for this Sublease, or (iv) the benefit of creditors; the filing by or against a Sublessee appointment of a petition trustee or a receiver to have Sublessee adjudged a bankrupt take possession of all or substantially all of a petition for reorganization Sublessee’s assets occurs, or arrangement under any law relating to bankruptcy; or if the attachment, execution or other judicial seizure of all or substantially all of Sublessee’s assets located at the Subleased Premises, or of Sublessee’s interest in this Sublease, occurs, or (v) Sublessee or any of its successors or permitted assigns or sub-sublessees should file any voluntary petition in bankruptcy, reorganization or arrangement, or an assignment for the benefit of creditors or for similar relief under any present or future statute, law or regulation relating to the relief of debtors, or (vi) Sublessee or any of its successors or permitted assigns or sub-sublessees should be adjudicated bankrupt or have an involuntary petition in bankruptcy, reorganization or arrangement filed against it, or (vii) Sublessee (as a result of Sublessee’s or its agent’s actions or inactions, whether directly or indirectly) shall permit, allow or suffer to exist any lien, judgment, writ, assessment, charge, attachment or execution upon Sublessor’s or Sublessee’s interest in this Sublease or to the Subleased Premises and/or the fixtures, improvements and furnishings located thereon (and the same is not released, satisfied or transferred to bond pursuant to applicable Florida law within fifteen (15) days or any earlier time as may be required pursuant to the Lease as determined by Sublessor), or (viii) Sublessee breaches the provisions of Paragraph 15 of the Lease as if the same applied to Sublessee as the tenant thereunder (Assignment or Subletting); then Sublessee shall be in default hereunder. In the event that Sublessee is in default hereunder, Sublessor may avail itself of all remedies allowed at law or in equity, including, but not limited to, the following:
(A) Sublessor shall have the right, at its election, to cancel and terminate this Sublease and to remove all persons and properties therefrom by summary proceedings; provided, however, that in any such termination of this Sublease shall be at the event option or election of an involuntary filing against Sublessee, the Sublessee Sublessor only and such termination and cancellation shall have sixty (60) days in which to cause such filing to be dismissednot take effect unless Sublessor shall so elect.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, (B) Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor:
right (1) subject to available legal pursuant to the requirements of applicable Florida law and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance any computation stated in the Lease (and as may then be interpreted by Landlord) accelerate and declare immediately due and payable all Rent and other charges to be paid by Sublessee hereunder to the end of its obligations under the Sublease; · a decree Term, and to collect such Rent and charges immediately by distress proceedings or order by a court of competent jurisdiction restraining otherwise, at Sublessor's election or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefromevent that Sublessee vacates, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee abandons or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter surrenders the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor dispossesses Sublessee but does not elect to terminate this Sublease as provided in Section 18.2Sublease, then, without waiving its right to acceleration, Sublessor may from time shall have the right to time, without terminating this Sublease, either recover all rental as it becomes due or relet re-let the Subleased Premises Premises, or any part thereof portions thereof, for Sublessee's account, for such terms terms, rent and conditions as Sublessor in its reasonable discretion may deem advisableelect, including applying the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then net rentals received by Sublessor from or avails of such reletting shall be applied: re-letting (x) first, to the payment of any indebtedness other than rent due hereunder from Sublessor's expenses and dispossessing Sublessee and the costs and expenses of making such repairs and improvements to Sublessor; the Subleased Premises as may be necessary in order to enable Sublessor to re-let the same, (y) second, to the payment of any reasonable cost brokerage commissions or other necessary expenses of Sublessor in connection with such relettingre-letting; and (z) third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residuebalance, if any, shall be held applied by Sublessor from time to time, but in any event no less than once a month, on account of the payments due or payable by Sublessee hereunder, if any, with the right reserved to Sublessor to bring such actions and applied in payment proceedings for the recovery of future rent any deficits remaining unpaid as Sublessor may deem advisable from time to time, without being obligated to await the same may become due and payable hereunderend of the Term for a final determination of Sublessee's account. Should the amount The commencement or maintenance of rental received any one or more actions shall not bar Sublessor from such reletting during any month which is applied bringing other or subsequent actions for further accruals pursuant to the payment provisions of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such relettingsection.
18.5. The various rights (C) Sublessor shall have the right, to the extent applicable, to any additional remedies that may be afforded to Landlord under the Lease.
(D) In addition to the foregoing clauses (A) through (C) and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all no way in limitation of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Subleaseclauses, in the event that this Sublease is terminated for the breach by failure of Sublessee in to timely pay Rent under this Sublease or any other sums that may be payable hereunder, then Sublessee shall pay to Sublessor a pro rata portion of an amount equal to $250,000.00, which amount is intended to represent (and should be calculated with such intention) the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation remaining amount of the Airport or give rise brokerage commission paid by Sublessor with respect to public safety concerns, in addition to any other remedy it may the transactions contemplated hereby which Sublessor would not have under gotten the benefit of as a result of such early termination of this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Default by Sublessee. 18.1. The occurrence of any Each of the following events shall constitute a Default and breach of this Sublease by Sublessee:
A. The failure an "EVENT OF DEFAULT" by Sublessee to pay when due under this Sublease: (i) if default shall be made in the Basic payment of any sum of Rent, or Additional of any sum other than Rent, or any other payment required to be made paid by Sublessee to Sublessor hereunder where under this Sublease and such failure to pay continues for seven a period of five (75) business days after written notice thereof has been given by Sublessor to Sublessee.
B. The abandonment Sublessee (provided, however, Sublessor shall not be required to provide such notice more than once in any twelve (12) month period, the second such failure constituting an Event of Default without Sublessor providing such notice); or vacation (ii) if default shall be made in the performance of any of the Subleased Premises by other covenants and conditions which Sublessee while in material breach or default of any other provision of is required to observe and perform under this Sublease that lasts and such default continues for a period of thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof has been given by Sublessor to Sublessee; provided that or (iii) if the nature interest of such default is such that the same cannot reasonably Sublessee under this Sublease shall be cured within such thirty-business-day periodlevied on under execution or other legal process; or (iv) if any petition shall be filed by or against Sublessee to declare Sublessee a bankrupt or to delay, Sublessee shall not be deemed to be in default reduce or modify Sublessee's debts or obligations; or (v) if Sublessee is declared insolvent according to law or if any assignment of Sublessee's property shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment be made for the benefit of creditorscreditors or if a receiver or trustee is appointed for Sublessee or its property; the filing by or against a (vi) if Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement shall default under any law relating to bankruptcy; or of the attachmentterms and provisions of the Master Lease which, execution or other judicial seizure by the terms of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease, are applicable hereto; provided, however, that in then Sublessor may treat the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event occurrence of any Default by Sublesseeone or more of the foregoing events as a breach of this Sublease and thereupon, at Sublessor's option, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following described remedies, in addition to all other rights and remedies without limiting any other remedies available to Sublessorprovided at law or in equity:
(1a) subject Sublessor may terminate this Sublease and repossess the Subleased Premises and be entitled to available legal and factual defenses, · recover as damages a decree or order sum of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) money equal to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
total of (i) any unpaid rent up to the effective date cost of termination; plus
recovering the Subleased Premises, (ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations accrued and unpaid Rent at the time of termination, plus interest thereon at the maximum lawful per annum rate under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value laws of the rental payments payable to Sublessor under State of Texas from the full term of this Sublease; provideddue date, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet present value [discounted at the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior rate of eight percent per annum] of the balance of all Rent for the remainder of the Sublease term less the present value (discounted at the same rate) of the fair market rental value of the Subleased Premises for the same period (but only to the extent the remainder is a positive number) and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such any other amounts in addition sum of money and damages including any attorney's fees and court costs owed by Sublessee to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire lawSublessor.
18.3. In (b) Sublessor may terminate Sublessee's right of possession (but not this Sublease) and may repossess the event Subleased Premises by forcible entry or detainer suit or otherwise, without demand or notice of any such default by Sublessee, Sublessor shall also have the right, with or kind to Sublessee and without terminating this Sublease, in which event Sublessor may, but shall be under no obligation to peaceably reenter do so, relet the Subleased Premises for the account of Sublessee for such Rent and remove all persons and property from upon such terms as shall be satisfactory to Sublessor. For the purpose of such reletting, Sublessor is authorized to decorate and/or to make any repairs, changes, alterations and/or additions in or to the Subleased Premises that may be reasonably necessary to restore the Subleased Premises to a "BUILDING STANDARD" (as defined in the extent allowed under New Hampshire lawMaster Lease) condition. Such property may In addition, (i) if Sublessor shall fail to relet the Subleased Premises, then Sublessee shall pay to Sublessor as damages a sum equal to the amount of all -------------------------------------------------------------------------------- OFFICE BUILDING SUBLEASE -9- accrued and unpaid Rent and other accrued and unpaid sums provided for in this Sublease; or (ii) if the Subleased Premises are relet and a sufficient sum shall not be removed realized from such reletting after paying the accrued and stored in a public warehouse or elsewhere unpaid Rent and other accrued and unpaid sums due hereunder at the time of reletting, the cost of recovering possession and for of collecting rent accruing under such subletting, and all of the account costs and expenses reasonably incurred in making such decorations, repairs, changes, alterations and/or additions necessary to relet the Subleased Premises (plus interest on all of Sublessee. Under no circumstances the same at the maximum lawful contract rate), then Sublessee shall Sublessor be held liable in damages or otherwise by reason of satisfy and pay any such peaceable reentry deficiency upon demand therefor from time to time. Sublessee agrees that Sublessor may file suit to recover any sums falling due under the terms of this Paragraph 15.1(b) from time to time, and that no delivery to or eviction or by reason of the exercise recovery by Sublessor of any other remedy provided sum due Sublessor hereunder shall be any defense in any action to recover any amount of money not theretofore reduced to judgment in favor of Sublessor, nor shall such reletting be construed as an election on the part of Sublessor to terminate this ArticleSublease unless a written notice of such intention is given to Sublessee by Sublessor. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing Notwithstanding any such storage. If Sublessee fails to redeem such property within this thirty (30) day periodreletting without termination, Sublessor may sell the property in at any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not time thereafter elect to terminate this Sublease as provided in Section 18.2, for such previous breach.
(c) Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet enter the Subleased Premises and cure at Sublessee's expense any default.
(d) Sublessor may, but shall not be required to, use, apply or retain all or any part thereof of the Security Deposit for such terms the payment of any Rent or any other sum in default, or for the payment of any other amount which Sublessor may spend or become obligated to spend by reason of Sublessee's default, or to compensate Sublessor for any other loss or damage which Sublessor may suffer by reason of Sublessee's default, including, without limitation, costs and conditions as attorneys' fees incurred by Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to recover possession of the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of If any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment portion of the reasonable cost of any alterations and repairs to the Subleased Premises; fourthSecurity Deposit is so used or applied, to the payment of rent due and unpaid hereunder; and the residueSublessee shall, if anyupon demand, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by deposit cash with Sublessor in such reletting or in making such alterations an amount sufficient to restore the Security Deposit to its original amount, and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved Sublessee's failure to Sublessor, including those not specifically described under this Sublease, do so shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as constitute a waiver of any such right or remedy or of any default hereunder by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Default by Sublessee. 18.1. The occurrence of If (i) Sublessee does not fulfill any of the following events shall constitute a Default and breach terms, covenants, or agreements of the Lease or this Sublease to be performed by Sublessee:
A. The failure by Sublessee to pay when due , including, but not limited to, the Basic payment of the Base Rent, the Sublessee Escalation or Additional Rentadditional rent, and such breach shall not have been remedied (or any other payment required proper 8 corrective measures to be made by Sublessee to Sublessor hereunder where such failure continues for seven cure the breach have not commenced) within five (75) business days after written notice thereof by from Sublessor; or (ii) Sublessee commits any event of default as described in Article 8.01 of the Lease (DEFAULT BY TENANT), as herein incorporated, and such is not cured within the notice and cure period provided for therein; or (iii) Sublessee causes Sublessor to Sublessee.
B. The abandonment or vacation be put into default under the terms of the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcyLease; or (iv) Sublessee is the subject of an attachment, execution or other judicial seizure of substantially all of Sublessee’s 's assets located at the Subleased Premises or of Sublessee’s 's interest in this Sublease; providedor (v) Sublessee assigns this Sublease or sublets all or any portion of the Subleased Premises, howeverexcept as expressly provided for in Section 1 (d) of this Sublease, that and such assignment or sublet is not amended, modified or terminated within twenty (20) days after written notice from Sublessor to Sublessee, which notice shall set forth how such assignment or sublet is in violation of the event terms of an involuntary this Sublease; or (vi) Sublessee is the subject of the filing of a petition in any bankruptcy or other insolvency proceeding, by or against Sublessee, or Sublessee commences an act seeking any relief under any state or federal debtor relief law, or Sublessee is the subject of the filing, by or against Sub lessee, for the reorganization or modification of Sublessee's capital structure, or a trustee or receiver is appointed to take possession of substantially all of Sublessee's assets or the leasehold; however, if such a filing or petition is filed against Sublessee by non-affiliated third parties, then such filing shall not be a Sublessee Default unless Sublessee fails to have the proceedings initiated by such petition dismissed within sixty (60) days after filing thereof; or (vii) Sublessee admits or indicates an admission that it cannot meet its obligations as they become due; or (viii) or Sublessee makes an assignment for the benefit of its creditors; then such failure or occurrence or any such events as set forth in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the (i) through (viii) shall constitute a Sublessee event of default hereunder (a Sublessee Default"). Upon the occurrence of any Sublessee Default which is not cured by SublesseeSublessee within the grace periods specified in this Section, Sublessor shall have the option following rights and remedies, in addition to terminate all other rights and remedies available to Sublessor pursuant to the Lease, or in law or in equity:
(a) Sublessor may give written notice to Sublessee specifying such Sublessee Default or Defaults and stating that this Sublease and the Term hereby demised shall expire and terminate on the date specified in such notice, and upon the date specified in such notice, this Sublease and the Term hereby demised and all rights of Sublessee hereunder under the Sublease shall expire and terminate. Upon any termination of this Sublease, Sublessee shall quit and peaceably surrender the Subleased Premises, and all portions thereof, to Sublessor, and Sublessor, upon or at any time after any termination, may, to the extent permitted by giving ten law, without further notice, enter upon and reenter the Subleased Premises, and all portions thereof, and possess and repossess itself thereof by force, summary proceeding, ejectment or otherwise, and may dispossess Sublessee and remove Sublessee and all other persons and property from the Subleased Premises and the right to receive all rental and other income of and from the same.
(10b) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one not to terminate this Sublease, and Sublessor may instead terminate Sublessee's right of possession and may repossess the Subleased Premises by forcible entry and detainer suit, by taking peaceful possession or more of the following remedies otherwise, without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the terminating this Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect exert commercially reasonable efforts to so terminate this Subleasemitigate it damages and relet the Subleased Premises for the account of Sublessee, then for such rent and upon such terms as shall be reasonably satisfactory to Sublessor. Sublessor shall not be required to accept any sublessee offered by Sublessee or observe any instruction given by Sublessee about such reletting or do any act or exercise any care or diligence with respect to such reletting or to the mitigation of damages. For the purpose of such reletting, Sublessor may recover from Sublessee:decorate or make any repairs, changes, improvements, alterations, or additions in or to the Subleased Premises to the extent deemed by Sublessor desirable or convenient (the "Reletting Alterations").
(ic) any unpaid rent up No such termination of Sublessee's right to possess the effective date Subleased Premises under this Section shall relieve Sublessee of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its liabilities and obligations under this Sublease (as if such right of possession had not been so terminated or which in the ordinary course expired), and such liabilities and obligations shall survive any such termination of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3possession. In the event of any such default termination of Sublessee's right of possession, whether or not the Subleased Premises, or any portion thereof, shall have been relet, Sublessee shall pay the Sublessor a sum equal to the Base Rent, and the Sublessee Escalation and any other charges required to be paid by Sublessee up to the time of such termination of such right of possession and thereafter Sublessee, until the end of the Term of this Sublease, shall be liable to Sublessor for and shall pay to Sublessor: (i) the equivalent of the amount of the Base Rent and the Sublessee's Escalation payable under this Sublease, less (ii) the net proceeds of any reletting effected ---- pursuant to the provisions of this Section after deducting all of Sublessor's reasonable expenses in connection with such reletting, including, without limitation, all reletting costs, brokerage commissions, attorneys' fees, the costs of Reletting Alterations for the Subleased Premises, or any portion thereof. Sublessee shall pay such amounts in accordance with the terms of this Section as set forth in a written statement thereof from Sublessor to Sublessee (hereinafter, the "Deficiency") to Sublessor in monthly installments on the days on which the Base Rent is payable under this Sublease, and Sublessor shall be entitled to recover from Sublessee each monthly installment of the Deficiency as the same shall arise. Sublessee agrees that Sublessor may file suit to recover any sums that become due under the terms of this Section from time to time, and all reasonable costs and expenses of Sublessor, including attorneys' fees and costs incurred in connection with such suits shall be payable by Sublessee on demand.
(d) At any time after a Sublessee Default and the termination of the Sublease by Sublessor, whether or not Sublessor shall have collected any monthly Deficiency as set forth in this Section, Sublessor shall also have be entitled to recover from Sublessee, and Sublessee shall pay to Sublessor, on demand, as and for final damages for such Sublessee Default and in lieu of any subsequent Deficiency (but without limitation of the right, with provisions of subsection (f) hereof):
(i) all the Base Rent and the Sublessee Escalation and other sums due and payable by Sublessee on the date of termination; plus ---- (ii) the costs of curing the Sublessee Default existing at or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises prior to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at date of termination, including the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs attorney fees incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty Sublessor; plus ---- (30iii) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds cost of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take recovering possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by lawand preparation for reletting, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to timeincluding, without terminating this Subleaselimitation, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms Reletting Alterations, brokerage and conditions as Sublessor in its reasonable discretion may deem advisablemanagement commissions, including the right to make alterations operating expenses, attorney's fees, rent concessions and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessoralteration costs; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.plus ____
Appears in 1 contract
Default by Sublessee. 18.1. The (a) Notwithstanding any conflicting terms of the Master Lease, the occurrence of any of the following events shall constitute a Default and breach of this Sublease by Sublessee:
A. The failure by Sublessee to pay when due the Basic Rent, or Additional Rent, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven (7) business days after written notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation of the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available matters, in addition to Sublessor:
(1the terms stated in Section 14(A) subject to available legal and factual defensesof the Master Lease, · as incorporated herein, shall also constitute a decree or order of a court of competent jurisdiction compelling specific performance default by Sublessee under this Sublease (an "Event of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:Default"):
(i) any unpaid Sublessee's failure to pay rent up within three (3) business days after receipt of written notice of such failure to pay on the effective date due date, provided however, if Sublessor has given Sublessee notice three (3) times, no further notice shall be required of termination; plusrent not paid on the due date;
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s 's failure to observe or perform its obligations under any other covenant, agreement, condition or provision of this Sublease or which in the ordinary course Master Lease, if such failure shall continue for twenty (20) days after receipt of things would written notice from Sublessor to Sublessee, except that if such default cannot be likely cured within such twenty (20) day period, it shall not be considered a default if Sublessee commences to result therefromcure such default within five (5) days after such notice is given, including, gives Sublessor a weekly report of Sublessee's actions to cure the discounted value of the rental payments payable default and proceeds diligently to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; pluseffect such cure.
(iii) the reasonable costs to relet Sublessee's assignment of this Sublease or sublet of any portion of the Premises without the prior written consent of Sublessor and Landlord.
(including repairs due to damage caused iv) If Sublessee shall be dispossessed by or under authority other than Sublessor, or if Sublessee shall file a voluntary petition in bankruptcy, or file any petition or institute any proceeding under any insolvency or bankruptcy act, or if a receiver or trustee shall be appointed for the assets of Sublessee or the Premises, or if any action shall be filed for the reorganization of Sublessee.
(b) If an Event of Default by Sublessee or occurs, Sublessor shall have all the rights and remedies described in Section 14(B) of the Master Lease with respect to Sublessee’s failure to maintain the interior , Sublessee's occupancy of the Premises and reasonable remodeling costs, commissions this Sublease and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Default by Sublessee. 18.1. The occurrence of any All of the following events shall constitute a Default and breach be deemed an "Event of this Sublease by SublesseeDefault" hereunder:
A. The (a) failure by of Sublessee to pay when due the Basic Base Rent, Additional Rent or Additional Rentother sums due hereunder as and when the same shall be due and payable, or if such failure is not cured within five (5) days of such due date;
(b) failure of Sublessee to perform any other payment of the obligations on its part herein required to be made by Sublessee to Sublessor hereunder where performed, if such failure continues for seven is not cured within ten (710) business days after written notice thereof by from Sublessor to Sublessee.;
B. The abandonment or vacation (c) the existence of a hazardous condition and the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after cure the same immediately upon written notice thereof by from Sublessor to Sublessee; provided that if ;
(d) Sublessee vacates or abandons the nature Premises or fails to take possession of such default is such that the same cannot reasonably be cured within such thirty-business-day periodPremises when available for occupancy (the transfer of a substantial part of the operations, business and personnel of the Sublessee shall not be deemed to some other location being deemed, without limiting the meaning of the terms "vacates or abandons," to be in a vacation or abandonment of the Premises within the meaning of this subclause), No such vacation or abandonment of the Premises shall be considered to be a default under the Sublease, if Sublessee shall continues to pay Base Rent, Additional Rent and all other sums due under the Sublease when due;
(e) any voluntary or involuntary petition or similar pleading under any bankruptcy act or under any Federal or State law seeking reorganization or arrangement with creditors or adjustment of debts, is filed by or against Sublessee, or if any such petition or pleading is involuntary, and it is not adjudicated favorably to Sublessee within such period commence such cure and thereafter diligently prosecutes the same forty-five (45) days after its filing;
(f) Sublessee admits its inability to completion.pay its debts, or if a receiver, trustee or other court appointee or nominee is appointed for Sublessee or all or a substantial part of Sublessee's property;
D. The making by (g) Sublessee of any general makes an assignment for the benefit of creditors; the filing , or if any proceedings are filed by or against a Sublessee of a petition to have declare Sublessee adjudged a bankrupt insolvent or of a petition for reorganization unable to meet its debts;
(h) Sublessee fails to observe or arrangement under perform any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor:
(1) subject to available legal covenants in respect of assignment and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, subletting set forth in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:Paragraph 16;
(i) any unpaid rent up to the effective date levy upon, under execution or the attachment by legal process, of terminationthe leasehold interest of Sublessee or the filing or creation of a lien in respect of such leasehold interest; plusor
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iiij) the reasonable costs to relet the Premises (including repairs due to damage caused misrepresentation by Sublessee of, or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to disclose to Sublessor, a material fact in any document, financial statement, leasing application or other instrument delivered or disclosed to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell connection with the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from SublesseeSublease.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Sources: Sublease (Propel Inc)
Default by Sublessee. 18.1. The occurrence (i) If default shall be made in the payment of any sum of Rent, or of any sum other than Rent, to be paid by Sublessee under this Sublease (including, without limitation, any amounts owing by Sublessee pursuant to the Construction Agreement attached hereto as EXHIBIT "C"); or (ii) if default shall be made in the performance of any of the following other covenants and conditions which Sublessee is required to observe and perform under this Sublease; or (iii) if the interest of Sublessee under this Sublease shall be levied on under execution or other legal process; or (iv) if any petition shall be filed by or against Sublessee to declare Sublessee a bankrupt or to delay, reduce or modify Sublessee's debts or obligations; or (v) if Sublessee is declared insolvent according to law or if any assignment of Sublessee's property shall be made for the benefit of creditors or if a receiver or trustee is appointed for Sublessee or its property; or (vi) if Sublessee shall vacate or abandon the Subleased Premises during the term of this Sublease; or (vii) if Sublessee shall default under any of the terms and provisions of the Master Lease which, by the terms of this Sublease, are applicable hereto; then Sublessor may treat the occurrence of any one or more of the foregoing events shall constitute as a Default and breach of this Sublease by Sublessee:
A. The failure by Sublessee to pay when due the Basic Rentand thereupon, or Additional Rent, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven (7) business days after written notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation of the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublesseeat Sublessor's option, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following described remedies, in addition to all other rights and remedies without limiting any other remedies available to Sublessorprovided at law or in equity:
(1a) subject Sublessor may terminate this Sublease and repossess the Subleased Premises and be entitled to available legal and factual defenses, · recover as damages a decree or order sum of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) money equal to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
total of (i) any unpaid rent up to the effective date cost of termination; plus
recovering the Subleased Premises, (ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations accrued and unpaid Rent at the time of termination, plus interest thereon at the maximum lawful per annum rate under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value laws of the rental payments payable to Sublessor under State of Texas from the full term of this Sublease; provideddue date, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet present value [discounted at the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior rate of eight percent per annum] of the balance of all Rent for the remainder of the Sublease term less the present value (discounted at the same rate) of the fair market rental value of the Subleased Premises for the same period (but only to the extent the remainder is a positive number) and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such any other amounts in addition sum of money and damages including any attorney's fees and court costs owed by Sublessee to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire lawSublessor.
18.3. In (b) Sublessor may terminate Sublessee's right of possession (but not this Sublease) and may repossess the event Subleased Premises by forcible entry or detainer suit or otherwise, without demand or notice of any such default by Sublessee, Sublessor shall also have the right, with or kind to Sublessee and without terminating this Sublease, in which event Sublessor may, but shall be under no obligation to peaceably reenter do so, relet the Subleased Premises for the account of Sublessee for such Rent and upon such terms as shall be satisfactory to Sublessor. For the purpose of such reletting, Sublessor is authorized to decorate and/or to make any repairs, changes, alterations and/or additions in or to the Subleased Premises that may be reasonably necessary to restore the Subleased Premises to a "BUILDING STANDARD" (as defined in the Master
(c) Sublessor may enter the Subleased Premises and remove cure at Sublessee's expense any default.
(d) Sublessor may, but shall not be required to, use, apply or retain all persons and property from or any part of the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and Security Deposit for the account payment of Sublessee. Under no circumstances shall any Rent or any other sum in default, or for the payment of any other amount which Sublessor be held liable in damages may spend or otherwise become obligated to spend by reason of Sublessee's default, or to compensate Sublessor for any such peaceable reentry other loss or eviction or damage which Sublessor may suffer by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor Sublessee's default, including, without limitation, costs and of all costs attorneys' fees incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take recover possession of the Subleased Premises pursuant to Premises. If any provision portion of New Hampshire law the Security Deposit is so used or pursuant to any notice provided by lawapplied, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2Sublessee shall, Sublessor may from time to timeupon demand, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as deposit cash with Sublessor in an amount sufficient to restore the Security Deposit to its reasonable discretion may deem advisableoriginal amount, including the right and Sublessee's failure to make alterations and repairs to the Subleased Premises. In the event that Sublessor do so shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due constitute a default hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Default by Sublessee. 18.1. The occurrence of If Sublessee fails to perform any of the following events shall constitute a Default terms, covenants and breach agreements of this Sublease by Sublessee:
A. The failure by Sublessee to pay when due the Basic RentSublease, including, but not limited to, the payment of any rent, or Additional Rentif any event of default as described in Section 19 of the Lease shall occur and such default shall not have been remedied within the shorter of (x) the grace period set forth in the Lease less five (5) days, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven (7y) business days after written notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation of the Subleased Premises by Sublessee while in material breach or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days after written notice of such intention from Sublessor (a "Sublessee Default"), Sublessor, in addition to terminate the remedies given in this Sublease or in the manner specified hereinLease (in regard to the Prime Lessor) or under law or in equity, or Sublessor may elect among do any one or more of the following remedies without limiting any other remedies available to Sublessorfollowing:
(1i) subject terminate this Sublease, at which time Sublessee shall surrender the Subleased Premises to available legal Sublessor;
(ii) enter and factual defensestake possession of the Subleased Premises either with or without process of law and remove Sublessee, · a decree with or order without having terminated this Sublease; and
(iii) alter locks and other security devices at the Subleased Premises.
(iv) exercise any other remedy permitted under the law of the State of Massachusetts or provided to Prime Lessor under the Lease. Sublessee waives any and all claims for damages incurred by reason of Sublessor's reentry, repossession, or alteration of locks or other security devices upon the occurrence of a court Sublessee Default, and for damages lawfully incurred by reason thereof. If Sublessor terminates this Sublease or ends Sublessee's right to possess the Subleased Premises because of competent jurisdiction compelling specific performance a Sublessee Default, Sublessor shall hold Sublessee liable for any rent and any additional rent due hereunder, for the remainder of the term of this Sublease had there been no Sublessee Default, as well as any and all reasonable costs incurred by Sublessor in enforcing its remedies hereunder, less the net amount, if any, of rents collected by Sublessor on account of its sublease of the Subleased Premises to a third-party for the balance of the term of the Sublease (and in no event shall Sublessor pay any such rents to Sublessee hereunder). No surrender of possession of the Subleased Premises, or any part thereof, or the surrender of the remaining term of this Sublease, shall release Sublessee from any of its obligations under the Sublease; · hereunder unless accepted and expressly agreed to by Sublessor in writing. The receipt and retention by Sublessor of any rent or any additional rent due hereunder from anyone other than Sublessee, or with Sublessor's knowledge of any breach of any covenant, agreement, term or provision shall not be deemed a decree or order by a court waiver of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by lawcovenant, the right to undertake to cure Sublessee’s defaultagreement, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease term or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in or as a release of Sublessee from the event the breach further keeping, observance or performance by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concernscovenants, in addition to any other remedy it may have under agreements, terms, provisions and conditions of this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Sources: Sublease (First Marblehead Corp)
Default by Sublessee. 18.1. The occurrence following shall be deemed to be events of any default (“Event of the following events shall constitute a Default and breach of this Sublease by Sublessee:
A. The failure Default”) by Sublessee under this Sublease: (1) Sublessee shall fail to pay when due the Basic Rent, or Additional Rent, any installment of Rent or any other payment required pursuant to be made by Sublessee to Sublessor hereunder where such failure continues for seven this Sublease, and the default is not cured within three (73) business days after written notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation ; (2) Sublessee shall abandon any substantial portion of the Subleased Premises by Premises; (3) Sublessee while in material breach shall fail to comply with any term, provision or default of any other provision of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision covenant of this Sublease (including without limitation compliance with federalor the Primary Lease, state for which Sublessee is, through Section 14 of this Sublease, bound) other than the defaults described in subparts (1) and local laws (2) of this sentence, and regulationsthe failure is not cured within ten (10) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written notice thereof by Sublessor to Sublessee; provided that provided, if the nature of such default Sublessee’s failure is such that the same cannot non-monetary and more than ten (10) days are reasonably be cured within such thirty-business-day periodrequired in order to cure, Sublessee shall not be deemed to be in default if Sublessee shall commences to cure such failure within such ten (10) day period commence and diligently pursues such cure and thereafter diligently prosecutes the same to completion.
D. The making by ; (4) Sublessee or any guarantor of Sublessee’s obligations hereunder shall file a petition or be adjudged bankrupt or insolvent under any general applicable federal or state bankruptcy or insolvency law or admit that it cannot meet its financial obligations as they become due; or a receiver or trustee shall be appointed for all or substantially all of the assets of Sublessee or any guarantor of Sublessee’s obligations hereunder, or Sublessee or any guarantor of Sublessee’s obligations hereunder shall make a transfer in fraud of creditors or shall make an assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the (5) Sublessee shall have sixty (60) days in which to cause such filing do or permit to be dismissed.
E. If done any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in act which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored results in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first lien being filed against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or the Building; or (6) the liquidation, termination, dissolution of Sublessee or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment guarantor of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid Sublessee’s obligations hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Default by Sublessee. 18.1. The occurrence (a) Upon the happening of any of the following events shall constitute a Default and breach of this Sublease by Sublesseefollowing:
A. The failure by (i) Sublessee fails to pay when due any Rent within three (3) days after written notice that the Basic Rent, or Additional Rent, or same is overdue;
(ii) Sublessee fails to pay any other payment required to be made by amount due from Sublessee to Sublessor hereunder where and such failure continues for seven five (75) business days after written notice thereof by from Sublessor to Sublessee.;
B. The abandonment (iii) Sublessee fails to perform or vacation of the Subleased Premises by Sublessee while in material breach or default of observe any other provision of covenant or agreement set forth in this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe Agreement and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty fifteen (3015) business days after written notice thereof by from Sublessor to Sublessee; provided that or Initials: Sublessee: WLW Sublessor: PS Lessor: __________
(iv) Any other event occurs which involves Sublessee or the Subleased Premises and which continues beyond all applicable notice and cure periods and which would constitute a default under the Lease if it involved Sublessor or the nature of such default is such that premises covered by the same cannot reasonably be cured within such thirty-business-day period, Lease; Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure hereunder, and thereafter diligently prosecutes Sublessor may exercise, without limited any other rights or remedies available to it hereunder or at law or in equity, any and all rights and remedies of Lessor set forth in the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that Lease in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismisseda default by Sublessor thereunder.
E. If any guarantor attempts to revoke its Guaranty.
18.2. (b) In the event of Sublessee fails or refuses to make any Default payment or perform any covenant or agreement to be performed hereunder by SublesseeSublessee (after any applicable notice and grace period have been given and expired without cure), Sublessor shall have the option to terminate this Sublease and all rights of Sublessee hereunder by giving ten (10) days written notice of may make such intention to terminate in the manner specified herein, payment or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s defaultperform such covenant or agreement (but shall not have any obligation to Sublessee to do so). In such event, amounts so paid or expended in which event Sublessee shall pay Sublessor the reasonable costs incurred in undertaking such undertaking; If Sublessor shall elect to so terminate this Subleaseperformance, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) together with all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior of the Premises and reasonable remodeling costs, commissions expenses and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from the Subleased Premises to the extent allowed under New Hampshire law. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs attorneys' fees incurred by Sublessor in providing connection therewith and interest on such storage. If Sublessee fails to redeem such property within this thirty (30) amounts from the day period, Sublessor may sell when so paid or expanded at the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if anyDefault Rate, shall be held by Sublessor and applied in payment of future additional rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Sources: Sublease Agreement (Optium Corp)
Default by Sublessee. 18.1. The occurrence of any of the following events shall constitute a Default and breach of this Sublease by Sublessee:
A. The failure by If (i) Sublessee fails to pay in full when due the Basic hereunder any payment of Base Rent, Sublessee Escalation, or Additional Rent, or any other payment required to be made by Sublessee to Sublessor hereunder where and such failure continues for seven breach is not remedied within five (75) business days after written notice thereof by from Sublessor to Sublessee.
B. The abandonment that such payment was not received, or vacation (ii) Sublessee does not fulfill any of the Subleased Premises by Sublessee while in material breach other terms, covenants, or default of any other provision agreements of this Sublease that lasts for thirty (30) days or more.
C. The failure by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where and such failure continues for thirty breach shall not have been remedied (30or proper corrective measures to cure the breach have not commenced) business within twenty (20) days after written notice thereof by from Sublessor; or (iii) Sublessee commits any Event of Default as described in Article ___ of the Master Lease (DEFAULT), as herein incorporated; or; (iv) Sublessee causes Sublessor to Sublessee; provided that if be put into default under the nature terms of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcyMaster Lease; or (v) Sublessee is the subject of an attachment, execution or other judicial seizure of substantially all of Sublessee’s 's assets located at the Subleased Premises or of Sublessee’s 's interest in this Sublease; providedor (vi) Sublessee has abandoned or indicated its intent to abandon the Subleased Premises, however, that vacation of the Subleased Premises shall not constitute abandonment provided Sublessee continues to meet all rental obligations hereunder; or (vii) Sublessee is the subject of the filing of a petition in the event of an involuntary filing any bankruptcy or other insolvency proceeding, by or against Sublessee, or Sublessee commences an act seeking any relief under any state or federal debtor relief law, or Sublessee is the subject of the filing, by or against Sublessee, for the reorganization or modification of Sublessee's capital structure, or a trustee or receiver is appointed to take possession of substantially all of Sublessee's assets or the leasehold; however, if such a filing or petition is filed against Sublessee by non-affiliated third parties, then such filing shall not be a Sublessee Default unless Sublessee fails to have the proceedings initiated by such petition dismissed within sixty (60) days after filing thereof; or (viii) Sublessee admits in writing that it cannot meet its obligations as they become due; or (ix) or Sublessee makes an assignment for the benefit of its creditors; then such failure or occurrence or any such events as set forth in (i) through (ix) shall constitute a Sublessee event of default hereunder (a "Sublessee Default"). Upon the occurrence of any Sublessee Default which is not cured by Sublessee within the grace periods specified in this Section, Sublessor shall have the following rights and remedies, in addition to all other rights and remedies available to Sublessor pursuant to the Master Lease, or in law or in equity:
(a) Sublessor may give written notice to Sublessee specifying such Sublessee Default or Defaults and stating that this Sublease and the Term hereby demised shall expire and terminate on the date specified in such notice, and upon the date specified in such notice, this Sublease and the Term hereby demised and all rights of Sublessee under the Sublease shall expire and terminate. Upon any termination of this Sublease, Sublessee shall quit and peaceably surrender the Subleased Premises, and all portions thereof, to Sublessor, and Sublessor, upon or at any time after any termination, may, to the extent permitted by law, without further notice, enter upon and reenter the Subleased Premises, and all portions thereof, and possess and repossess itself thereof by force, summary proceeding, ejectment or otherwise, and may dispossess Sublessee and remove Sublessee and all other persons and property from the Subleased Premises and the right to receive all rental and other income of and from the same.
(b) Sublessor may elect not to terminate this Sublease, and Sublessor may instead terminate Sublessee's right of possession and may repossess the Subleased Premises by forcible entry and detainer suit, by taking peaceful possession or otherwise, without terminating this Sublease, in which event Sublessor shall exert commercially reasonable efforts to cause mitigate it damages and relet the Subleased Premises for the account of Sublessee, for such filing rent and upon such terms as shall be reasonably satisfactory to Sublessor. Sublessor shall not be dismissedrequired to accept any sublessee offered by Sublessee or observe any instruction given by Sublessee about such reletting or do any act or exercise any care or diligence with respect to such reletting or to the mitigation of damages. For the purpose of such reletting, Sublessor may decorate or make any repairs, changes, improvements, Alterations, or additions in or to the Subleased Premises to the extent deemed by Sublessor desirable or convenient (the "Reletting Alterations").
E. If (c) No such termination of Sublessee's right to possess the Subleased Premises under this Section shall relieve Sublessee of its liabilities and obligations under this Sublease (as if such right of possession had not been so terminated or expired), and such liabilities and obligations shall survive any guarantor attempts to revoke its Guaranty.
18.2such termination of possession. In the event of any such termination of Sublessee's right of possession, whether or not the Subleased Premises, or any portion thereof, shall have been relet, Sublessee shall pay the Sublessor a sum equal to the Base Rent, and the Sublessee Escalation and any other charges required to be paid by Sublessee up to the time of such termination of such right of possession and thereafter Sublessee, until the end of the Term of this Sublease, shall be liable to Sublessor for and shall pay to Sublessor: (i) the equivalent of the amount of the Base Rent and the Sublessee's Escalation payable under this Sublease, less (ii) the net proceeds of any reletting effected pursuant to the provisions of this Section after deducting all of Sublessor's reasonable expenses in connection with such reletting, including, without limitation, all reletting costs, brokerage commissions, attorneys' fees, the costs of Reletting Alterations for the Subleased Premises, or any portion thereof. Sublessee shall pay such amounts in accordance with the terms of this Section as set forth in a written statement thereof from Sublessor to Sublessee (hereinafter, the "Deficiency") to Sublessor in monthly installments on the days on which the Base Rent is payable under this Sublease, and Sublessor shall be entitled to recover from Sublessee each monthly installment of the Deficiency as the same shall arise. Sublessee agrees that Sublessor may file suit to recover any sums that become due under the terms of this Section from time to time, and all reasonable costs and expenses of Sublessor, including attorneys' fees and costs incurred in connection with such suits shall be payable by Sublessee on demand.
(d) At any time after a Sublessee Default and the termination of the Sublease by SublesseeSublessor, whether or not Sublessor shall have collected any monthly Deficiency as set forth in this Section, Sublessor shall have the option be entitled to terminate this Sublease recover from Sublessee, and all rights of Sublessee hereunder by giving ten (10) days written notice of such intention to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by law, the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor to Sublessor, on demand, as and for final damages for such Sublessee Default and in lieu of any subsequent Deficiency (but without limitation of the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:provisions of subsection (f) hereof):
(i) any unpaid rent up to all the effective Base Rent and the Sublessee Escalation and other sums due and payable by Sublessee on the date of termination; plus
(ii) all amounts necessary the costs of curing the Sublessee Default existing at or prior to compensate Sublessor for all the detriment proximately caused date of termination, including the cost of any attorney fees incurred by Sublessee’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, the discounted value of the rental payments payable to Sublessor under the full term of this Sublease; provided, however, that Sublessor shall use reasonable efforts to relet the PremisesSublessor; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by Sublessee or Sublessee’s failure to maintain the interior cost of recovering possession of the Subleased Premises and reasonable remodeling preparation for reletting, including, without limitation, Reletting Alterations, brokerage and management commissions, operating expenses, attorney's fees, rent concessions and alteration costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu the amount by which the then present worth of the foregoing as may aggregate of the Base Rent and Sublessee's Escalation and any other charges to be permitted from time to time paid by applicable New Hampshire law.
18.3Sublessee hereunder for the then unexpired Term of this Sublease (assuming this Sublease had not been so terminated) is greater than the then present worth of the then aggregate fair market rent of the Subleased Premises which can be reasonably expected during the same period (taking into account rentals received by Sublessor under a replacement Sublease of the Subleased Premises). In the event computation of any such default present worth, a discount at the then market discount rate as reasonably determined by Sublessee, Sublessor shall also have the right, with be employed.
(e) Any and all property belonging to Sublessee or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property which Sublessee is or may be entitled which may be removed from the Subleased Premises by Sublessor pursuant to the extent allowed under New Hampshire authority of this Sublease or applicable law. Such property , may be handled, removed and or stored in a public commercial warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances shall Sublessor be held liable in damages or otherwise by reason Sublessor at Sublessee's risk and expense and Sublessor shall in no event be responsible for the value, preservation or safekeeping thereof. Sublessee shall pay to Sublessor, upon demand, any and all expenses incurred in such removal and all storage charges for such property so long as the same shall be in Sublessor's possession or under Sublessor's control.
(f) Sublessor shall have the right of injunction, in the event of a breach or threatened breach by Sublessee of any such peaceable reentry of the agreements, conditions, covenants or eviction terms hereof, to restrain the same and the right to invoke any remedy allowed by law or in equity, whether or not other remedies, indemnity or reimbursements are herein provided. The rights and remedies given to Sublessor in this Sublease are distinct, separate and cumulative remedies; and no one of them, whether or not exercised by Sublessor, shall be deemed exclusive of any of the others. Sublessor may collect and receive any rent due from Sublessee, and the payment thereof shall not constitute a waiver of or affect any notice or demand given, suit instituted or judgment obtained by Sublessor, or be held to waive, affect, change, modify or alter the rights or remedies that Sublessor has against Sublessee in equity, at law, or by reason virtue of the exercise this Sublease. No receipt or acceptance by Sublessor from Sublessee of less than the monthly rent herein stipulated shall be deemed to be other than a partial payment on account for any due and unpaid stipulated rent; no endorsement or statement on any check or any letter or other writing accompanying any check or payment of rent to Sublessor shall be deemed an accord and satisfaction, and Sublessor may accept and negotiate such check or payment without prejudice to Sublessor's rights to (i) recover the remaining balance of such unpaid rent, or (ii) pursue any other remedy provided in this ArticleSublease. All property Nothing herein shall limit or prejudice the right of Sublessee which is stored Sublessor to prove for and obtain in proceedings for bankruptcy or insolvency by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable manner, and shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation or abandonment of the Subleased Premises by Sublessee while in material breach or default reason of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by lawsuch termination, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs an amount equal to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received maximum allowed by Sublessor from such reletting shall be applied: first, to the payment any statute or rule of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost of any alterations and repairs to the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Sublessor and applied in payment of future rent as the same may become due and payable hereunder. Should the amount of rental received from such reletting during any month which is applied to the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time when, and governing the proceedings in which the damages are to be proved, whether or not the amount be greater, equal to or less than the amount of the execution of this Sublease, Sublessor may pursue any loss or all of such rights and remedies, whether at the same time or otherwisedamage referred to above.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as a waiver of any such right or remedy or of any default by Sublessee.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Sources: Sublease Agreement
Default by Sublessee. 18.1. The occurrence of (a) If Sublessee shall be in default in fulfilling any of the following events shall constitute a Default and breach covenants of this Sublease by Sublessee:
A. The failure by Sublessee to pay when due other than the covenants for the payment of Basic Rent, or Additional Rent, or any other payment required to be made by Sublessee to Sublessor hereunder where such failure continues for seven (7) business days after written notice thereof by Sublessor to Sublessee.
B. The abandonment or vacation of if the Subleased Premises by become vacant or deserted, then Sublessor upon ten (10) days' written notice to Sublessee while in material breach or default of any other provision Sublessor's intention to end the term of this Sublease that lasts for thirty (30) days or more.
C. The failure may by Sublessee to observe and perform any other provision of this Sublease (including without limitation compliance with federal, state and local laws and regulations) to be observed or performed by Sublessee, where such failure continues for thirty (30) business days after written said notice thereof by Sublessor to Sublessee; provided that if the nature of such default is such that the same cannot reasonably be cured within such thirty-business-day period, Sublessee shall not be deemed to be in default if Sublessee shall within such period commence such cure and thereafter diligently prosecutes the same to completion.
D. The making by Sublessee of any general assignment for the benefit of creditors; the filing by or against a Sublessee of a petition to have Sublessee adjudged a bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy; or the attachment, execution or other judicial seizure of substantially all of Sublessee’s assets or of Sublessee’s interest in this Sublease; provided, however, that in the event of an involuntary filing against Sublessee, the Sublessee shall have sixty (60) days in which to cause such filing to be dismissed.
E. If any guarantor attempts to revoke its Guaranty.
18.2. In the event of any Default by Sublessee, Sublessor shall have the option to terminate cancel this Sublease and all rights thereupon, at the expiration of Sublessee hereunder by giving said ten (10) days written notice of such intention (if said default continues to terminate in the manner specified herein, or Sublessor may elect among any one or more of the following remedies without limiting any other remedies available to Sublessor:
(1) subject to available legal and factual defenses, · a decree or order of a court of competent jurisdiction compelling specific performance by Sublessee of its obligations under the Sublease; · a decree or order by a court of competent jurisdiction restraining or enjoining the breach by Sublessee of any of its obligations under the Sublease; and
(2) to the extent allowed by lawexist), the right to undertake to cure Sublessee’s default, in which event Sublessee shall pay Sublessor the reasonable costs incurred in such undertaking; If Sublessor shall elect to so terminate this Sublease, then Sublessor may recover from Sublessee:
(i) any unpaid rent up to the effective date of termination; plus
(ii) all amounts necessary to compensate Sublessor for all the detriment proximately caused by Sublessee’s failure to perform its obligations term under this Sublease or which in shall expire as fully and completely as if on that day herein definitely fixed for the ordinary course of things would be likely to result therefrom, including, the discounted value expiration of the rental payments payable to Sublessor under the full term of this Sublease; providedterm, however, that Sublessor shall use reasonable efforts to relet the Premises; plus
(iii) the reasonable costs to relet the Premises (including repairs due to damage caused by and Sublessee or Sublessee’s failure to maintain the interior of the Premises will then quit and reasonable remodeling costs, commissions and all other reasonable costs); plus
(iv) such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable New Hampshire law.
18.3. In the event of any such default by Sublessee, Sublessor shall also have the right, with or without terminating this Sublease, to peaceably reenter the Subleased Premises and remove all persons and property from surrender the Subleased Premises to Sublessor, but Sublessee shall remain liable as hereinafter provided.
(b) If the extent allowed under New Hampshire law. Such property may be removed and stored notice provided for in a public warehouse or elsewhere at the cost of and for the account of Sublessee. Under no circumstances (a) above shall Sublessor be held liable in damages or otherwise by reason of any such peaceable reentry or eviction or by reason of the exercise by Sublessor of any other remedy provided in this Article. All property of Sublessee which is stored by Sublessor may be redeemed by Sublessee within thirty (30) days after Sublessor takes possession upon payment to Sublessor in full of all obligations then due from Sublessee to Sublessor and of all costs incurred by Sublessor in providing such storage. If Sublessee fails to redeem such property within this thirty (30) day period, Sublessor may sell the property in any reasonable mannerhave been given, and the term shall apply the proceeds of such sale actually collected first against the costs of storage and sale and then against any other obligation due from Sublessee.
18.4. In the event of the vacation expire as aforesaid; or abandonment of the Subleased Premises by (i) if Sublessee while shall make default in material breach or default of any other provision of the Sublease for thirty (30) days or in the event that Sublessor shall elect to reenter as provided in Section 18.3 or shall take possession of the Subleased Premises pursuant to any provision of New Hampshire law or pursuant to any notice provided by law, then if Sublessor does not elect to terminate this Sublease as provided in Section 18.2, Sublessor may from time to time, without terminating this Sublease, either recover all rental as it becomes due or relet the Subleased Premises or any part thereof for such terms and conditions as Sublessor in its reasonable discretion may deem advisable, including the right to make alterations and repairs to the Subleased Premises. In the event that Sublessor shall elect to relet, then rentals received by Sublessor from such reletting shall be applied: first, to the payment of any indebtedness other than rent due hereunder from Sublessee to Sublessor; second, to the payment of any reasonable cost of such reletting; third, to the payment of the reasonable cost Basic Rent reserved herein or in making any other payment herein provided; or (ii) if any execution or attachment shall be issued against Sublessee or any of any alterations and repairs to Sublessee's property whereupon the Subleased Premises; fourth, to the payment of rent due and unpaid hereunder; and the residue, if any, Premises shall be held taken or occupied or attempted to be taken or occupied by someone other than Sublessee or (iii) if Sublessee shall default with respect to any other Prime Lease provision between Landlord and Sublessor, except as set forth in Section 5 [c] above, which shall remain uncured beyond the applicable cure period, or (iv) if Sublessee shall do anything which would otherwise constitute a default under the Prime Lease if made by Sublessor which shall remain uncured beyond the applicable cure period, (as to any of the foregoing events of which fact Sublessor shall be the sole judge), then and applied in payment if any of future rent as such events Sublessor may, without notice, exercise the same may become due and payable hereunder. Should rights as Landlord has against Sublessor in the amount of rental received from such reletting during any month which is applied to Prime Lease as if the payment of rent be less than that required to be paid during that month by Sublessee under this Sublease, the Sublessee shall pay such deficiency to Sublessor immediately upon demand by Sublessor. Such deficiency shall be calculated and paid monthly. Sublessee shall also pay to Sublessor, as soon as ascertained, any reasonable costs and expenses incurred default by Sublessor in such reletting or in making such alterations and repairs not covered by the rentals received from such reletting.
18.5. The various rights and remedies reserved its obligations to Sublessor, including those not specifically described under this Sublease, shall be cumulative, and, except as otherwise provided by New Hampshire statutory law in force and effect at the time of the execution of this Sublease, Sublessor may pursue any or all of such rights and remedies, whether at the same time or otherwise.
18.6. No delay or omission of Sublessor to exercise any right or remedy shall be construed as had been a waiver of any such right or remedy or of any default by SublesseeSublessor in its obligations to Landlord.
18.7. Notwithstanding any other provision of this Sublease, in the event the breach by Sublessee in the reasonable opinion of Sublessor or PDA affects or is likely to affect the efficient operation of the Airport or give rise to public safety concerns, in addition to any other remedy it may have under this Sublease, Sublessor and PDA under the terms of the Primary Lease shall also be entitled (but shall not be obligated) to take whatever actions is reasonably deemed necessary by Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA to a▇▇▇▇ or cure such situation and Sublessee shall reimburse Sublessor and/or PDA for all reasonable costs incurred by Sublessor and/or PDA in taking such action.
Appears in 1 contract
Sources: Sublease Agreement (Hanover Capital Mortgage Holdings Inc)