Default Rights and Remedies. A. The occurrence of any Event of Default as defined in the Credit Agreement (including without limitation, a breach of any of the provisions of this Agreement) shall be deemed to be an Event of Default under this Agreement and shall entitle the Bank to exercise its remedies under this Agreement or as otherwise provided by law. B. Upon the occurrence and during the continuance of an Event of Default, Bank shall be entitled, subject to applicable law, to exercise all of its remedies specified herein, in the Credit Agreement, or in any other document executed in connection with the Credit Agreement or this Agreement, or provided by law and to enforce its security interest in the Collateral. Additionally, upon the occurrence and during the continuance of an Event of Default and subject to applicable law, Bank will be entitled to (i) receive all dividends payable in respect of the Collateral pledged under this Agreement; (ii) change the registration of any registerable Collateral to any other name or form; (iii) appoint any officer or agent of Bank as Pledgor’s true and lawful proxy and attorney-in-fact, with power (exercisable so long as such Event of Default is continuing), to exercise all voting rights in respect of the shares evidencing the Collateral pledged hereby; (iv) endorse Pledgor’s name or any of its officers’ names or agents’ names upon any notes, checks, drafts, money orders, or other instruments of payment (including payments payable under any policy of insurance on the Collateral) or Collateral that may come into possession of the Bank in full or part payment of any amounts owing to the Bank; (v) give written notice to the issuer of such Collateral to effect such change or changes of address so that all mail from the issuer of such Collateral and related thereto addressed to Pledgor may be delivered directly to Bank; (vi) to execute on behalf of Pledgor any financing statements, amendments, subordinations or other filings pursuant to the Credit Agreement; and (vii) do any and all things necessary to be done in and about the premises as fully and effectually as Pledgor might or could do, and hereby ratifying all that said proxy and attorney shall lawfully do or cause to be done by virtue hereof. The proxy and power of attorney described herein shall be deemed to be coupled with an interest and shall be irrevocable for the term of the Credit Agreement, and all transactions thereunder and thereafter as long as any Indebtedness or any of the commitments to lend remain outstanding. Upon the occurrence and during the continuance of an Event of Default, the Bank shall have all rights and powers of a secured creditor under the UCC and any other applicable law, including the full power, subject to applicable law, to collect, compromise, endorse, sell or otherwise deal with the Collateral or proceeds thereof on behalf of the Bank in its own name or in the name of Pledgor. The parties agree that ten (10) days written notice sent by certified or registered mail to Pledgor at the address designated below shall be deemed reasonable notice of any disposition of the Collateral, should notice be required by law. C. So long as the Bank has not given notice to the Pledgor that an Event of Default (as defined in the Credit Agreement) has occurred and is continuing: 1. The Pledgor shall be entitled to exercise any and all voting or consensual rights and powers (but any such exercise by the Pledgor of stock purchase or subscription rights may be made only from funds of the Pledgor not comprising part of the Collateral) relating or pertaining to the Collateral or any part thereof for any purpose; provided, however, that the Pledgor agrees that it shall not exercise any such right or power in any manner which would have a material adverse effect on the value of the Collateral or any part thereof. 2. The Pledgor shall be entitled to receive and retain any and all lawful dividends payable in respect of the Collateral which are paid in cash if such dividends are permitted by the Credit Agreement, but all dividends and distributions in respect of the Collateral or any part thereof made in membership interests or other property or representing any return of capital, whether resulting from a subdivision, combination or reclassification of Collateral or any part thereof or received in exchange for Collateral or any part thereof or as a result of any merger, consolidation, acquisition or other exchange of assets to which the issuer may be a party or otherwise or as a result of any exercise of any stock purchase or subscription right, shall be and become part of the Collateral hereunder and, if received by the Pledgor, shall be forthwith delivered to the Bank in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held for the purposes of this Agreement. Upon notice from the Bank during the existence of an Event of Default, and so long as the same shall be continuing, all rights and powers which the Pledgor is entitled to exercise pursuant to the preceding paragraph, and all rights of the Pledgor to receive and retain dividends pursuant to the preceding paragraph shall forthwith cease, and all such rights and powers shall thereupon become vested in the Bank which shall have, during the continuance of such Event of Default, the sole and exclusive authority to exercise such rights and powers and to receive such dividends. Any and all money and other property paid over to or received by the Bank pursuant to this paragraph shall be retained by the Bank as additional Collateral hereunder and applied in accordance with the provisions hereof.
Appears in 1 contract
Default Rights and Remedies. A. (a) The occurrence of any one or more of the following matters constitutes a default by Tenant under this lease:
(1) failure by Tenant to pay Annual Base Rent within ten (10) days after written notice hereof, provided, however, that Landlord shall not be obligated to grant more than two (2) such notices during any calendar year after which Tenant shall be in default if Rent is more than ten (10) days late without requirement of further notice;
(2) failure by Tenant to pay Additional Rent within ten (10) days after receipt of written notice of such failure to pay when due;
(3) failure by Tenant to observe or perform any other covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after receipt of written notice from Landlord to Tenant, except that if such default cannot be cured within such thirty (30) day period, it shall not be considered a default if Tenant commences to cure such default within such thirty (30) day period and proceeds diligently thereafter to effect such cure.
(b) The occurrence of the following constitutes a default by Landlord under this Lease: (i) failure by Landlord to pay within thirty (30) days after written notice from 16 Tenant, any monies required to be paid by Landlord under this Lease, and (ii) the failure by Landlord to observe or perform any other covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after receipt of written notice from Tenant to landlord, except that if such default cannot be cured within such thirty (30) day period, this period shall be extended, provided that Landlord commences to cure such default within such thirty (30) day period and proceeds diligently thereafter to effect such cure, provided that in a situation requiring immediate response, Tenant need only give Landlord such notice as is practical under the circumstances.
(c) The occurrence of any one or more of the matters described in Paragraph 23 (a) or 23 (b) shall, after the expiration of any applicable cure period, be referred to as an "Event of Default Default" by Tenant or Landlord, as defined in the Credit Agreement case may be.
(including without limitation, a breach of any of the provisions of this Agreementd) shall be deemed to be If an Event of Default under this Agreement by Tenant occurs: Landlord shall have all the rights and shall entitle the Bank to exercise its remedies under this Agreement or as otherwise provided allowed by law, including the following, which shall not operate to exclude or deprive the Landlord of any other right or remedy permitted by law:
(1) Landlord may terminate this Lease, by giving Tenant not less than ten (10) days' written notice of the Landlord's election to do so, in which event the Term shall end, and all right, title and interest of the Tenant hereunder shall expire, on the date stated in such notice;
(2) Landlord may terminate the right of the Tenant to possession of the Premises without terminating the Lease by giving not less than ten (10) days' written notice to Tenant.
B. Upon the occurrence and during the continuance of an Event of Default, Bank shall be entitled, subject to applicable law, to exercise all of its remedies specified herein, in the Credit Agreement, or in any other document executed in connection with the Credit Agreement or this Agreement, or provided by law and to enforce its security interest in the Collateral. Additionally, upon the occurrence and during the continuance of (e) If an Event of Default and subject to applicable lawby Landlord occurs, Bank will be entitled to (i) receive all dividends payable in respect of the Collateral pledged under this Agreement; (ii) change the registration of any registerable Collateral to any other name or form; (iii) appoint any officer or agent of Bank as Pledgor’s true and lawful proxy and attorney-in-fact, with power (exercisable so long as such Event of Default is continuing), to exercise all voting rights in respect of the shares evidencing the Collateral pledged hereby; (iv) endorse Pledgor’s name or any of its officers’ names or agents’ names upon any notes, checks, drafts, money orders, or other instruments of payment (including payments payable under any policy of insurance on the Collateral) or Collateral that may come into possession of the Bank in full or part payment of any amounts owing to the Bank; (v) give written notice to the issuer of such Collateral to effect such change or changes of address so that all mail from the issuer of such Collateral and related thereto addressed to Pledgor may be delivered directly to Bank; (vi) to execute on behalf of Pledgor any financing statements, amendments, subordinations or other filings pursuant to the Credit Agreement; and (vii) do any and all things necessary to be done in and about the premises as fully and effectually as Pledgor might or could do, and hereby ratifying all that said proxy and attorney shall lawfully do or cause to be done by virtue hereof. The proxy and power of attorney described herein shall be deemed to be coupled with an interest and shall be irrevocable for the term of the Credit Agreement, and all transactions thereunder and thereafter as long as any Indebtedness or any of the commitments to lend remain outstanding. Upon the occurrence and during the continuance of an Event of Default, the Bank Tenant shall have all rights and powers of a secured creditor under the UCC and any other applicable lawremedies available at law or in equity, including the full power, subject right to applicable law, set off against Rent the amount required to collect, compromise, endorse, sell or otherwise deal with the Collateral or proceeds thereof on behalf of the Bank in its own name or in the name of Pledgor. The parties agree that ten (10) days written notice sent by certified or registered mail to Pledgor at the address designated below shall be deemed reasonable notice of cure any disposition of the Collateral, should notice be required by law.
C. So long as the Bank has not given notice to the Pledgor that an Event of Default (as defined in on the Credit Agreement) has occurred and is continuing:
1. The Pledgor shall be entitled to exercise any and all voting or consensual rights and powers (but any such exercise by the Pledgor of stock purchase or subscription rights may be made only from funds of the Pledgor not comprising part of the Collateral) relating or pertaining Landlord. If Tenant spends any money to the Collateral or any part thereof for any purpose; provided, however, that the Pledgor agrees that it shall not exercise any such right or power in any manner which would have a material adverse effect on the value of the Collateral or any part thereof.
2. The Pledgor shall be entitled to receive and retain any and all lawful dividends payable in respect of the Collateral which are paid in cash if such dividends are permitted by the Credit Agreement, but all dividends and distributions in respect of the Collateral or any part thereof made in membership interests or other property or representing any return of capital, whether resulting from a subdivision, combination or reclassification of Collateral or any part thereof or received in exchange for Collateral or any part thereof or as a result of any merger, consolidation, acquisition or other exchange of assets to which the issuer may be a party or otherwise or as a result of any exercise of any stock purchase or subscription right, shall be and become part of the Collateral hereunder and, if received by the Pledgor, shall be forthwith delivered to the Bank in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held for the purposes of this Agreement. Upon notice from the Bank during the existence of an Event of Default, and so long as the same shall be continuing, all rights and powers which the Pledgor is entitled to exercise pursuant to the preceding paragraph, and all rights of the Pledgor to receive and retain dividends pursuant to the preceding paragraph shall forthwith cease, and all such rights and powers shall thereupon become vested in the Bank which shall have, during the continuance of cure such Event of Default, Landlord shall reimburse Tenant for such expenditure with interest at the sole and exclusive authority to exercise such rights and powers and to receive such dividends. Any and all money and other property paid over to or received by the Bank pursuant to this paragraph shall be retained by the Bank as additional Collateral hereunder and applied in accordance with the provisions hereofDefault Rate.
Appears in 1 contract
Default Rights and Remedies. A. (a) The occurrence of any Event one or more of the following matters consti tutes a Default as defined by Tenant under this Lease:
(i) Failure by Tenant to pay any Base Rent or Additional Rent within ten (10) business days after the date when said rent is due and owing under the Lease;
(ii) Failure by Tenant to pay, within ten (10) business days after Tenant's receipt of written notice thereof to Tenant, any other moneys required to be paid by Tenant under this Lease;
(iii) Failure by Tenant to cure within three (3) business days after receipt of notice from Landlord any breach of the covenants in respect of assignment, subletting or other transfer of Tenant's interest under this Lease set forth in Section 14; provided, however, in the Credit Agreement event that such cure cannot reasonably be effected in such three (3) business day period, Tenant shall have an additional reasonable period not to exceed thirty (30) days to complete such cure so long as Tenant commences such cure within such three (3) business day period and diligently thereafter pursues such cure to completion;
(iv) Failure by Tenant to cure within three (3) business days after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease;provided, however, in the event that such cure cannot reasonably be effected in such three (3) business day period, Tenant shall have an additional reasonable period not to exceed thirty (30) days to complete such cure so long as Tenant commences such cure within such three (3) business day period and diligently thereafter pursues such cure to completion;
(v) Failure by Tenant to observe or perform any other covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant, unless a cure would take longer and Tenant has begun to cure within 30 days and diligently pursues it to completion;
(vi) The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released, discharged or transferred to bond within thirty (30) days from the date of such filing;
(vii) Tenant abandons the Premises;
(viii) Tenant becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for Tenant or for the major part of its property;
(ix) A trustee or receiver is appointed for Tenant or for the major part of its property and is not discharged within ninety (90) days after such appointment;
(x) Bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any bankruptcy law, or similar law for the relief of debtors, are instituted (A) by Tenant or (B) against Tenant and are allowed against it or are consented to by it or are not dismissed within ninety (90) days after such institution; or
(xi) Any matter described elsewhere in this Lease as a Default and Tenant fails to cure such Default for thirty (30) days after written notice thereof from Landlord to Tenant, unless a cure would take longer and Tenant has begun to cure within 30 days and diligently pursues it to completion.
(b) If a Default occurs, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative and shall not operate to exclude or deprive Landlord of any other right or remedy allowed it at law or in equity or elsewhere in this Lease:
(i) Landlord may terminate this Lease by giving to Tenant written notice of Landlord's election to do so, in which event the Term of this Lease shall end, and all right, title and interest of Tenant hereunder shall expire, on the date stated in such notice;
(ii) Landlord may terminate the right of Tenant to possession of the Premises without terminating this Lease by giving written notice to Tenant that Tenant's right of possession shall end on the date stated in such notice, whereupon the right of Tenant to possession of the Premises or any part thereof shall cease on the date stated in such notice; and
(iii) Landlord may enforce the provisions of this Lease and may enforce and protect the rights of Landlord hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, and for the enforcement of any other appropriate legal or equitable remedy, including without limitationlimitation injunctive relief, a breach and for the accelerated payment of all moneys due or to become due from Tenant under any of the provisions of this AgreementLease.
(c) If Landlord exercises any of the remedies provided for in subparagraphs (i) and (ii) of the foregoing Section 18(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may re-enter and take complete and peaceful possession of the Premises by process of law, full and complete license so to do being hereby granted to Landlord, and Landlord may remove all occupants and property therefrom, using such force as may be necessary, with out being deemed in any manner guilty of trespass, eviction or forcible entry and detainer, and without relinquishing Landlord's right to Rent or any other right given to Landlord hereunder or by law or in equity.
(d) If Landlord terminates the right of Tenant to possession of the Premises without terminating this Lease, such termination of possession shall not release Tenant, in whole or in part, from Tenant's obligation to pay the Rent hereunder for the full Term. In addition and regardless of whether Landlord terminates Tenant's right of possession to the Premises, Landlord shall have the right, from time to time, to recover from Tenant, and Tenant shall remain liable for, all Rent and any other sums thereafter accruing as they become due under this Lease during the period from the date of such notice of termination of possession to the stated end of the Term. In any such case, Landlord shall use reasonable efforts to mitigate its damages, but Landlord shall not be required to accept any tenant offered by Tenant or to observe any instructions given by Tenant with regard to any reletting. Also, in any such case, Landlord may make repairs, alterations and additions in or to the Premises and redecorate the same to the extent deemed by Landlord necessary or desirable, and in connection therewith Landlord may change the locks to the Premises, and Tenant shall upon written demand pay the cost thereof together with Landlord's expenses of reletting. Landlord may collect the rents from any such reletting and apply the same first to the payment of the expenses of reentry, redecoration, repair and alterations and the expenses of reletting, and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue shall operate only as an offsetting credit against the amount of Rent due and owing or paid as a result of acceleration or as the same thereafter becomes due and payable hereunder, but the use of such offsetting credit to reduce the amount of Rent due Landlord, if any, shall not be deemed to be an Event of Default under this Agreement and shall entitle the Bank to exercise its remedies under this Agreement give Tenant any right, title or as otherwise provided by law.
B. Upon the occurrence and during the continuance of an Event of Default, Bank shall be entitled, subject to applicable law, to exercise all of its remedies specified herein, in the Credit Agreement, or in any other document executed in connection with the Credit Agreement or this Agreement, or provided by law and to enforce its security interest in the Collateral. Additionally, upon the occurrence or to such excess or residue and during the continuance of an Event of Default and subject any such excess or residue shall belong to applicable law, Bank will Landlord solely; provided that in no event shall Tenant be entitled to a credit on its indebtedness to Landlord in excess of the aggregate sum (including Base Rent and Additional Rent) which would have been paid by Tenant for the period for which the credit to Tenant is being determined, had no Default occurred. No such re-entry, repossession, repairs, alterations, additions or reletting shall be construed as an eviction or ouster of Tenant or as an election on Landlord's part to terminate this Lease, unless a written notice of such intention is given to Tenant, or shall operate to release Tenant in whole or in part from any of Tenant's obligations hereunder, and Landlord may, at any time and from time to time, ▇▇▇ and recover judgment for any deficiencies from time to time remaining after the application from time to time of the proceeds of any such reletting.
(e) In the event of the termination of this Lease by Landlord as pro vided for by subparagraph (i) receive all dividends payable in respect of the Collateral pledged under this Agreement; (ii) change the registration of any registerable Collateral to any other name or form; (iii) appoint any officer or agent of Bank as Pledgor’s true and lawful proxy and attorney-in-fact, with power (exercisable so long as such Event of Default is continuingSection 18(b), to exercise all voting rights in respect of the shares evidencing the Collateral pledged hereby; (iv) endorse Pledgor’s name or any of its officers’ names or agents’ names upon any notes, checks, drafts, money orders, or other instruments of payment (including payments payable under any policy of insurance on the Collateral) or Collateral that may come into possession of the Bank in full or part payment of any amounts owing to the Bank; (v) give written notice to the issuer of such Collateral to effect such change or changes of address so that all mail from the issuer of such Collateral and related thereto addressed to Pledgor may be delivered directly to Bank; (vi) to execute on behalf of Pledgor any financing statements, amendments, subordinations or other filings pursuant to the Credit Agreement; and (vii) do any and all things necessary to be done in and about the premises as fully and effectually as Pledgor might or could do, and hereby ratifying all that said proxy and attorney shall lawfully do or cause to be done by virtue hereof. The proxy and power of attorney described herein shall be deemed to be coupled with an interest and shall be irrevocable for the term of the Credit Agreement, and all transactions thereunder and thereafter as long as any Indebtedness or any of the commitments to lend remain outstanding. Upon the occurrence and during the continuance of an Event of Default, the Bank shall have all rights and powers of a secured creditor under the UCC and any other applicable law, including the full power, subject to applicable law, to collect, compromise, endorse, sell or otherwise deal with the Collateral or proceeds thereof on behalf of the Bank in its own name or in the name of Pledgor. The parties agree that ten (10) days written notice sent by certified or registered mail to Pledgor at the address designated below shall be deemed reasonable notice of any disposition of the Collateral, should notice be required by law.
C. So long as the Bank has not given notice to the Pledgor that an Event of Default (as defined in the Credit Agreement) has occurred and is continuing:
1. The Pledgor Landlord shall be entitled to exercise recover from Tenant all the fixed dollar amounts of Rent accrued and unpaid for the period up to and including such termination date, as well as all other additional sums payable by Tenant, or for which Tenant is liable or in respect of which Tenant has agreed to indemnify Landlord under any of the provisions of this Lease, which may be then owing and unpaid, and all voting or consensual costs and expenses, including without limitation court costs and reasonable attorneys' fees incurred by Landlord in the enforcement of its rights and powers (but any such exercise by the Pledgor of stock purchase or subscription rights may be made only from funds of the Pledgor not comprising part of the Collateral) relating or pertaining to the Collateral or any part thereof for any purpose; providedremedies hereunder, howeverand in addition, that the Pledgor agrees that it shall not exercise any such right or power in any manner which would have a material adverse effect on the value of the Collateral or any part thereof.
2. The Pledgor Landlord shall be entitled to receive and retain any and all lawful dividends payable in respect recover as damages for loss of the Collateral bargain and not as a penalty (i) the aggregate sum which are paid in cash at the time of such termination represents the excess, if such dividends are permitted by the Credit Agreementany, but all dividends and distributions in respect of the Collateral or present value on the aggregate rents at the same annual rate for the remainder of the Term as then in effect pursuant to the applicable provisions of Sections 3 and 4 of this Lease, over the then present value of the then aggregate fair rental value of the Premises for the balance of the Term, such present value to be computed in each case on the basis of a seven percent (7%) per annum discount from the respective dates upon which such rentals would have been payable hereunder had this Lease not been terminated; and (ii) any part thereof made damages in membership interests or other property or representing any return addition thereto, including reasonable attorneys' fees and court costs, which Landlord shall have sustained by reason of capital, whether resulting from a subdivision, combination or reclassification of Collateral or any part thereof or received in exchange for Collateral or any part thereof or as a result the breach of any merger, consolidation, acquisition of the covenants of this Lease other than for the payment of rent.
(f) All property removed from the Premises by Landlord pursuant to any provisions of this Lease or other exchange of assets to which the issuer by law may be a party handled, removed or otherwise or as a result stored by Landlord at the cost and expense of any exercise of any stock purchase or subscription rightTenant, and Landlord shall in no event be and become part of the Collateral hereunder and, if received by the Pledgor, shall be forthwith delivered to the Bank in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held responsible for the purposes of this Agreementvalue, preservation or safekeeping thereof. Upon notice from the Bank during the existence of an Event of Default, Tenant shall pay Landlord for all expenses incurred by Landlord in such removal and for storage charges for such property so long as the same shall be continuingin Landlord's possession or under Landlord's control. All such property not removed from the Premises or retaken from storage by Tenant within thirty (30) days after the end of the Term, however terminated, shall, at Landlord's option, be conclusively deemed to have been conveyed by Tenant to Landlord as by ▇▇▇▇ of sale, without further payment or credit by Landlord to Tenant.
(g) In the event that at any time during the term of this Lease either Landlord or Tenant shall institute any action or proceeding against the other relating to the provisions of this Lease, or any default hereunder, the unsuccessful party in such action or proceeding agrees to reimburse the successful party for the reasonable expenses of attorneys' fees and paralegal fees and disbursements incurred therein by the successful party. Such reimbursement shall include all rights reasonable legal expenses incurred prior to trial, at trial and powers which at all levels of appeal and post judgment proceedings.
(h) Landlord shall be in default under this Lease if Landlord fails to perform any obligation under this Lease and such failure continues for thirty (30) days after Tenant's written notice or such additional period as may be necessary to perform any such obligation provided that Landlord has commenced such performance within the Pledgor is thirty (30) day period and pursues such performance diligently thereafter. In the event of such default, Tenant may elect either (i) to cure such default and receive reimbursement from Landlord for the Tenant's actual, reasonable expenses incurred in curing such default (including an amount equal to seven percent [7%] of such expenses as an overhead and supervision fee), and in the event that Landlord fails to reimburse Tenant for such expenses within thirty (30) days of Tenant's written demand, Tenant shall be entitled to exercise pursuant offset such costs against Rent, or (ii) to enforce Landlord's obligations under this Lease, but in no event shall Tenant be entitled to terminate this Lease except as specifically provided in Section 7 or to seek damages, actual or consequential, except to the preceding paragraphextent of Tenant's actual, reasonable expenses incurred in curing Landlord's default as provided above.
(i) Landlord and all rights Tenant hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the Pledgor parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Lease or any claim of injury or damage. In the event that Landlord commences any proceedings for non-payment of Rent, Tenant will not interpose any counterclaim of whatever nature or description in any such proceedings. This shall not, however, be construed as a waiver of Tenant's right to receive and retain dividends pursuant assert such claims in any separate action brought by Tenant. However, Tenant shall not move to the preceding paragraph shall forthwith cease, and all consolidate any such rights and powers shall thereupon become vested in the Bank which shall have, during the continuance of such Event of Default, the sole and exclusive authority to exercise such rights and powers and to receive such dividends. Any and all money and other property paid over to separate action with any action brought by Landlord for Rent or received by the Bank pursuant to this paragraph shall be retained by the Bank as additional Collateral hereunder and applied in accordance with the provisions hereofpossession or both.
Appears in 1 contract
Sources: Office Lease (Excal Enterprises Inc)
Default Rights and Remedies. A. 17.1 The occurrence of any Event one or more of the following matters constitutes a default by Lessee under this Agreement unless cured, or agreed upon arrangements for cure are made, as specified below (“Default”):
(a) Failure by Lessee to pay, within five (5) days after the due date, any Rent or any other amounts due and payable by Lessee under this Agreement;
(b) Failure by Lessee to cure forthwith, within 30 days of notice thereof from Lessor, any hazardous condition that Lessee has created in violation of law or of this Agreement;
(c) Failure to cure within 30 days of notice of a failure of Lessee to observe or perform any covenant, agreement, condition or provision of this Agreement;
(d) The levy upon execution or the attachment by legal process of the leasehold interest of Lessee, or the filing or creation of a lien in respect of such leasehold interest which has not been cured within 30 days of notice;
(e) Lessee becoming insolvent or bankrupt or admitting in writing its inability to pay its debts as they mature, making an assignment for the benefit of creditors, or applying for or consenting to the appointment of a trustee or receiver for itself or for all or a part of its property;
(f) Proceedings for the appointment of a trustee, custodian or receiver of Lessee or for all or a part of Lessee’s property being filed against Lessee and not being dismissed within thirty (30) days; or
(g) Proceedings in bankruptcy, or other proceedings for relief under any law for the relief of debtors, being instituted by or against Lessee, and, if instituted against Lessee, being allowed against Lessee or being consented to by Lessee or not being dismissed within sixty (60) days thereof.
17.2 If a Default as defined occurs then Lessor shall have the following rights and remedies, which shall be distinct, separate and cumulative, and which may be exercised by Lessor concurrently or consecutively in any combination:
(a) Lessor may terminate this Agreement by giving to Lessee written notice of the Credit Agreement Lessor’s intention to do so, in which event the Term shall end, and all rights, title and interest of Lessee hereunder shall expire, on the date stated in such notice; and
(including without limitation, a breach of any of b) Lessor may enforce the provisions of this AgreementAgreement and may enforce and protect the rights of Lessor hereunder by a suit or suits in equity or at law for the specific performance of any covenant or agreement contained herein, including injunctive relief and recovery of all payments due and damages from Lessee.
17.3 If Lessor exercises the remedy provided for in subparagraph (a) of Section 17.2, Lessee shall be deemed surrender possession and vacate the Pipeline Assets immediately and deliver possession thereof to be an Event Lessor, and Lessor may then, or at any time thereafter, re-enter and take complete and peaceful possession of Default the Pipeline Assets, with or without process of law, full and complete license to do so being granted to Lessor, without relinquishing Lessor’s right to Base Rent or any other right given to Lessor hereunder.
17.4 Lessee shall pay all costs, charges and expenses, including court costs and reasonable attorneys’ fees incurred by Lessor or its beneficiaries in enforcing Lessee’s obligations under this Agreement and shall entitle or, in the Bank to exercise its remedies under this Agreement or as otherwise provided by law.
B. Upon the occurrence and during the continuance Lessor of an Event of Default, Bank shall be entitled, subject to applicable law, to exercise all any of its remedies specified herein, in the Credit Agreementevent of a Default.
17.5 Notwithstanding any provision of applicable law governing the sale or leasing of goods, or the defaults, rights and remedies of each of the parties hereto shall be limited to those specified in any other document executed in connection with the Credit Agreement or this Agreement, or provided by law and to enforce its security interest in the Collateral. Additionally, upon the occurrence and during the continuance of an Event of Default and subject to applicable law, Bank will be entitled to (i) receive all dividends payable in respect of the Collateral pledged under this Agreement; (ii) change the registration of any registerable Collateral to any other name or form; (iii) appoint any officer or agent of Bank as Pledgor’s true and lawful proxy and attorney-in-fact, with power (exercisable so long as such Event of Default is continuing), to exercise all voting rights in respect of the shares evidencing the Collateral pledged hereby; (iv) endorse Pledgor’s name or any of its officers’ names or agents’ names upon any notes, checks, drafts, money orders, or other instruments of payment (including payments payable under any policy of insurance on the Collateral) or Collateral that may come into possession of the Bank in full or part payment of any amounts owing to the Bank; (v) give written notice to the issuer of such Collateral to effect such change or changes of address so that all mail from the issuer of such Collateral and related thereto addressed to Pledgor may be delivered directly to Bank; (vi) to execute on behalf of Pledgor any financing statements, amendments, subordinations or other filings pursuant to the Credit Agreement; and (vii) do any and all things necessary to be done in and about the premises as fully and effectually as Pledgor might or could do, and hereby ratifying all that said proxy and attorney shall lawfully do or cause to be done by virtue hereof. The proxy and power of attorney described herein shall be deemed to be coupled with an interest and shall be irrevocable for the term of the Credit Agreement, and all transactions thereunder and thereafter as long as any Indebtedness or any of the commitments to lend remain outstanding. Upon the occurrence and during the continuance of an Event of Default, the Bank shall have all rights and powers of a secured creditor under the UCC and any other applicable law, including the full power, subject to applicable law, to collect, compromise, endorse, sell or otherwise deal with the Collateral or proceeds thereof on behalf of the Bank in its own name or in the name of Pledgor. The parties agree that ten (10) days written notice sent by certified or registered mail to Pledgor at the address designated below shall be deemed reasonable notice of any disposition of the Collateral, should notice be required by law.
C. So long as the Bank has not given notice to the Pledgor that an Event of Default (as defined in the Credit Agreement) has occurred and is continuing:
1. The Pledgor shall be entitled to exercise any and all voting or consensual rights and powers (but any such exercise by the Pledgor of stock purchase or subscription rights may be made only from funds of the Pledgor not comprising part of the Collateral) relating or pertaining to the Collateral or any part thereof for any purpose; provided, however, that the Pledgor agrees that it shall not exercise any such right or power in any manner which would have a material adverse effect on the value of the Collateral or any part thereof.
2. The Pledgor shall be entitled to receive and retain any and all lawful dividends payable in respect of the Collateral which are paid in cash if such dividends are permitted by the Credit Agreement, but all dividends and distributions in respect of the Collateral or any part thereof made in membership interests or other property or representing any return of capital, whether resulting from a subdivision, combination or reclassification of Collateral or any part thereof or received in exchange for Collateral or any part thereof or as a result of any merger, consolidation, acquisition or other exchange of assets to which the issuer may be a party or otherwise or as a result of any exercise of any stock purchase or subscription right, shall be and become part of the Collateral hereunder and, if received by the Pledgor, shall be forthwith delivered to the Bank in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held for the purposes of this Agreement. Upon notice from the Bank during the existence of an Event of Default, and so long as the same shall be continuing, all rights and powers which the Pledgor is entitled to exercise pursuant to the preceding paragraph, and all rights of the Pledgor to receive and retain dividends pursuant to the preceding paragraph shall forthwith cease, and all such rights and powers shall thereupon become vested in the Bank which shall have, during the continuance of such Event of Default, the sole and exclusive authority to exercise such rights and powers and to receive such dividends. Any and all money and other property paid over to or received by the Bank pursuant to this paragraph shall be retained by the Bank as additional Collateral hereunder and applied in accordance with the provisions hereof.
Appears in 1 contract
Sources: Gas Sales and Purchase Agreement (Eagle Rock Energy Partners, L.P.)