Default of the Lessee. In addition to all other rights and remedies that the District may have, in law or in equity, the District shall have the following rights: (A) If the Lessee shall violate or materially default on any of the non-monetary covenants or conditions contained in this Agreement, or if the Lessee, its customers, invitees, and/or employees, or anyone authorized by it shall knowingly continue to violate any of the Tariff, or reasonable rules and regulations that may be made from time to time hereinafter with respect to the use and operation of the Demised Premises or the Port facilities, and said violation and/or default shall continue for a period of at least thirty (30) days after receiving written notification of said violation from the District (“Cure Period”), then District shall have the rights and remedies provided in Subparagraph (C), below; Provided, however, that if the default is of such a nature that the same is not susceptible of cure within the Cure Period, and if Lessee shall have commenced cure and is diligently and continuously attempting cure, the Cure Period shall be extended for an additional sixty (60) days. (B) If any part of the Rent, amounts collectible in the same manner as Rent or other monetary obligations shall remain due and unpaid for ten (10) days following the date on which the same shall become due and payable, and following ten (10) days written notice of same (provided, District and Lessee herewith agree that a billing statement or other invoice from the District shall constitute such written notice), District shall have the rights and remedies provided in Subparagraph (C), below. (C) In addition to all other rights and remedies provided by law, the District shall have the right and option of terminating this Agreement and of declaring the balance of the entire rent and other monetary obligations called for by this Agreement to be immediately due and payable, and may proceed to collect all of the unpaid obligations by distress or otherwise; and the District may institute summary proceedings for the recovery of possession of the Demised Premises. The District may relet the Demised Premises for the account of the Lessee at the rates and on the terms deemed reasonable by the District and obtainable from maritime related qualified tenant(s) and for a longer period of time than fixed in this Agreement, applying any money collected first to the expense of obtaining possession, second to restoring the Demised Premises to a rentable condition, and then to the payment of rent and all of the charges due and accruing to the District. Any surplus shall be credited to the Lessee, which shall remain liable for any deficiency. (D) Neither this Agreement nor any interest therein nor any estate thereby created shall pass to any trustee or receiver or assignee for the benefit of creditors or otherwise by operation of law. In the event that the estate created thereby shall be taken in execution or by other process of law, or if the Lessee shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy act, or if a receiver or trustee of the property of the Lessee shall be appointed by reason of the Lessee’s insolvency or inability to pay its debts, or if any assignment shall be made of the Lessee’s property for the benefit of creditors, or if any reorganization proceeding under the federal laws is instituted by or filed against the Lessee (and, if filed by a third party, not discharged within ninety (90) days thereafter), the District may elect to terminate this Agreement by giving to the Lessee thirty (30) days’ notice in writing of the election of the District to terminate. The Lessee shall not cause or give cause for the institution of legal proceedings seeking to have the Lessee adjudicated bankrupt, reorganized or restrained under the bankruptcy laws of the United States, and shall not cause or give cause for the appointment of a trustee or receiver for the Lessee’s assets, and shall not make an assignment for the benefit of creditors or become or be adjudicated insolvent. The allowance of any petition under the bankruptcy laws or the appointment of a trustee or receiver of the Lessee or its assets shall be conclusive evidence that the Lessee caused, or gave cause therefor, unless such allowance of the petition, or the appointment of a trustee or receiver is vacated within ninety (90) days after such allowance or appointment. (E) The Lessee hereby expressly waives any and all rights of redemption granted by and under any present or future laws in the event the District obtains possession of the Demised Premises, by reason of the violation of any of the covenants or conditions of this Agreement.
Appears in 1 contract
Sources: Lease and Operating Agreement
Default of the Lessee. In addition to all other rights and remedies that the District may have, in law or in equity, the District shall have 18.1 Each of the following rightsevents hereinafter called an (“Event of Default”) shall be a default hereunder by the Lessee and a breach of this Lease:
(Aa) If the Lessee shall violate any covenant or materially default on any of the non-monetary covenants or conditions contained in this Agreement, or if the Lessee, its customers, invitees, and/or employees, or anyone authorized by it shall knowingly continue to violate any of the Tariff, or reasonable rules and regulations that may be made from time to time hereinafter with respect to the use and operation of the Demised Premises or the Port facilities, and said violation and/or default shall continue agreement providing for a period of at least thirty (30) days after receiving written notification of said violation from the District (“Cure Period”), then District shall have the rights and remedies provided in Subparagraph (C), below; Provided, however, that if the default is of such a nature that the same is not susceptible of cure within the Cure Period, and if Lessee shall have commenced cure and is diligently and continuously attempting cure, the Cure Period shall be extended for an additional sixty (60) days.
(B) If any part of the Rent, amounts collectible in the same manner as Rent or other monetary obligations shall remain due and unpaid for ten (10) days following the date on which the same shall become due and payable, and following ten (10) days written notice of same (provided, District and Lessee herewith agree that a billing statement or other invoice from the District shall constitute such written notice), District shall have the rights and remedies provided in Subparagraph (C), below.
(C) In addition to all other rights and remedies provided by law, the District shall have the right and option of terminating this Agreement and of declaring the balance of the entire rent and other monetary obligations called for by this Agreement to be immediately due and payable, and may proceed to collect all of the unpaid obligations by distress or otherwise; and the District may institute summary proceedings for the recovery of possession of the Demised Premises. The District may relet the Demised Premises for the account of the Lessee at the rates and on the terms deemed reasonable by the District and obtainable from maritime related qualified tenant(s) and for a longer period of time than fixed in this Agreement, applying any money collected first to the expense of obtaining possession, second to restoring the Demised Premises to a rentable condition, and then to the payment of rent and all such violation shall continue for Ten (10) days (Three (3) days for default in rent payment) after written notice to the Lessee by the Lessor:
(b) If the Lessee shall assign, transfer, encumber, sublet or permit the use of the charges due and accruing to Leased Premises by others except in the District. Any surplus shall be credited to the Lessee, which shall remain liable for any deficiency.manner herein permitted;
(Dc) Neither this Agreement nor any interest therein nor any estate thereby created shall pass to any trustee or receiver or assignee for the benefit of creditors or otherwise by operation of law. In the event that the estate created thereby shall be taken in execution or by other process of law, or if If the Lessee shall be adjudicated insolvent adjudged as bankrupt or bankrupt pursuant to the provisions of make any state or federal insolvency or bankruptcy act, or if a receiver or trustee of the property of the Lessee shall be appointed by reason of the Lessee’s insolvency or inability to pay its debts, or if any assignment shall be made of the Lessee’s property for the benefit of creditors, or if any reorganization proceeding under the federal laws is instituted by or filed against the Lessee (and, if filed by a third party, not discharged within ninety (90) days thereafter), the District may elect to terminate this Agreement by giving to the Lessee thirty (30) days’ notice in writing of the election of the District to terminate. The Lessee shall not cause or give cause for the institution of legal proceedings seeking to have the Lessee adjudicated bankrupt, reorganized or restrained under the bankruptcy laws of the United States, and shall not cause or give cause for the appointment of a trustee or receiver for the Lessee’s assets, and shall not make an general assignment for the benefit of creditors or become take or be adjudicated insolvent. The allowance attempt to take the benefit of any petition under insolvency or bankruptcy legislation:
(d) If a receiver or trustee shall be appointed for the bankruptcy laws property of the Lessee or any part thereof:
(e) If any execution be issued pursuant to a judgement rendered against the appointment Lessee; which execution is not contested by the Lessee within Fifteen (15) days;
(f) If any person other than the Lessee has or exercises the right to manage or control the Leased Premises or any part thereof, or any of the business carried on therein other than subject to the direct and full supervision and control of the Lessee, otherwise than in conformity with these presents:
(g) If the Lessee fails to take possession of or abandons the Leased Premises;
(h) If the Lessee makes a trustee bulk sale of its assets other than a bulk sale in connection with an assignment, transfer or receiver sub-lease of the Leased Premises authorized by the Lessor or in accordance with the terms of the Lease;
(i) If any steps are taken or any action or proceedings are instituted by any person for the dissolution, winding-up or liquidation of the Lessee or its assets assets, and which are not contested within the legal delays;
(j) If the Lessee shall be conclusive evidence in default in fulfilling any of the other covenants and conditions of the Lease and such default is not rectified within the earlier of:
(i) Twenty-One (21) days after written notice given by the Lessor to the Lessee stating with reasonable particularity the nature of such default: or
(ii) Any delay stipulated in any specific provision of this Lease;
18.2 In the event that the Leased Premises shall be deserted or vacated, the Lessor shall be entitled, if he sees fit, to enter the same as the agent of the Lessee either by force or otherwise, without being liable for prosecution therefore and to reflect the same as the agent of and at the risk of the Lessee and to receive any rental therefor, the whole on account of any sums payable by the Lessee to the Lessor hereunder;
18.3 In the event that the Lessee causedis in default to fully, faithfully and punctually perform all of the obligations incumbent upon it hereunder, and the Lessor shall have instituted proceedings to cancel the present Lease, notwithstanding any law or custom to the contrary, the Lessee shall not have any right to prevent such cancellation or annulment by remedying its default or defaults, subsequent to the institution of such legal proceedings;
18.4 In the event that the Lessee becomes bankrupt or insolvent or makes an assignment or proposal under the provisions of the Bankruptcy Act, the Winding-Up Act, or gave cause thereforother insolvency legislation in force at the time, unless such allowance this Lease, shall, at the option of the petitionLessor, terminate either forthwith, or at the appointment of a trustee or receiver is vacated within ninety (90) days after such allowance or appointment.
(E) The Lessee hereby expressly waives any and all rights of redemption granted by and under any present or future laws in the event the District obtains possession end of the Demised Premisesthen current month or at the end of the then current year, the whole without prejudice to any rights, recourses or remedies which the Lessor may enjoy against the Lessee in damages or otherwise. Under the circumstances, and without prejudice to any other rights, recourses or remedies enjoyed by the Lessor, the Lessor shall be entitled to claim, by reason preference. six (6) months’ damages or accelerated Base Rent, which, for the purposes of the violation of any present Section shall be deemed to be six (6) times the aggregate of the covenants monthly instalments of Rental then payable by the Lessee to the Lessor pursuant to the provisions of the Lease;
18.5 Reimbursement of attorney’s fees and disbursements (judicial and extra-judicial) to the extent of 20% of the amounts otherwise payable by the Lessee to the Lessor; if the default has not occurred in respect of monetary obligation, the amount of such compensation shall be the greater of $5,000 or conditions $5.00 per square foot of this Agreementthe Gross Rentable Area of the Leased Premises.
Appears in 1 contract