DEFAULTS OF TENANT. 12.1 The occurrence of any one or more of the following events shall constitute an "Event of Default": (a) If default shall be made in the due and punctual payment of any Rent or in the payment of any other amount to be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen (15) days after Tenant's receipt of written notice thereof from Landlord; or (b) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.1, and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by Landlord, or such longer period as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith. 12.2 If an Event of Default occurs, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative. (a) Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice; (b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and (c) 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions of this Lease. 12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises. 12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and 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 due and payable to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease. 12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount equal to the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the Term, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employed.
Appears in 3 contracts
Sources: Industrial Building Lease (LKQ Corp), Industrial Building Lease (LKQ Corp), Industrial Building Lease (LKQ Corp)
DEFAULTS OF TENANT. 12.1 The occurrence of any one or more of the following events shall constitute an "Event of Default":
(a) If default shall be made in the due and punctual payment of any Rent or in the payment of any other amount to be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen (15) days after Tenant's receipt of written notice thereof from Landlordto Tenant; or
(b) If material default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.1, and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by LandlordLandlord to Tenant, or such longer period as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 If an Event of Default occurs, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative.
(a) Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) Landlord may enforce the provisions of this Lease Lease, including without limitation Section 12.5 hereof, 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and 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 due and payable to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession repossession, or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount equal to the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the Term, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employed.
Appears in 3 contracts
Sources: Industrial Building Lease (LKQ Corp), Industrial Building Lease (LKQ Corp), Industrial Building Lease (LKQ Corp)
DEFAULTS OF TENANT. 12.1 The occurrence of Section 11.1 If any one or more of the following events shall constitute an "Event (in this Article sometimes called “Events of Default"”) shall occur:
(a) If 11.1.1 if default shall be made by Tenant, by operation of law or otherwise, under the provisions of Article XV hereof relating to assignment, sublease, mortgage or other transfer of Tenant’s interest in this Lease Agreement or in the Demised Premises or in the income arising therefrom;
11.1.2 if default shall be made in the due and punctual payment of (i) any Rent Base Rent, or (ii) ) in the payment of any other amount obligation to be paid by Tenant to Landlord(including additional rent), when and as the same shall become due and payable, and such default shall continue for a period of fifteen five (155) days after Tenant's receipt of written notice thereof from Landlord; orsuch payment is due and payable;
(b) If 11.1.3 if default shall be made by Tenant in keeping, observing or performing any of the terms contained in this LeaseLease Agreement, other than as those referred to in subsection (a) the foregoing subsections 11.1.1 and 11.1.2 of this Section 12.111.1 or Section 3.2, which does not expose Landlord to criminal liability, and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by LandlordLandlord to Tenant, or such longer period as is reasonable and Tenant fails to cure said default, if said default cannot, proceed timely and promptly with all due diligence and in good faithfaith to cure the same and thereafter to prosecute the curing of such default with all due diligence, be cured within said thirty (30) days, provided that Tenant promptly and or in the case of such a default or a contingency which cannot with due diligence and in good faith fails be cured within said time, Tenant shall proceed promptly to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith (it being intended that in connection with a default which does not expose Landlord to criminal liability and is not being susceptible of being cured with due diligence and in good faith within thirty (30) days, the time of Tenant within which to cure the same shall be extended for such period as may be necessary for the curing thereof promptly with due diligence and in good faith.);
12.2 If 11.1.4 if at any time during the term of this Lease, any part or all of the corporate shares of Tenant or Guarantor or any part or all of the assets of Tenant or Guarantor shall be transferred by merger, sale, assignment, bequest, inheritance, operation of law or other disposition;
11.1.5 if Tenant shall voluntarily file, or cause to be filed against Tenant, a petition under the United States Bankruptcy Code or laws or a petition is filed by another person under such laws against Tenant and the same is not dismissed by court order within ninety (90) days, or an order for relief is entered or sought under the United States Bankruptcy Code or laws relating to Tenant is not stayed within ninety (90) days; or Tenant makes an assignment for the benefit of creditors; or Tenant shall apply for or consent to the appointment of any receiver, custodian or trustee, or a similar officer shall be appointed without the application or consent of Tenant, and such appointment shall continue undischarged for a period of ninety (90) calendar days; or Tenant shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, readjustment of debt, dissolution, liquidation, or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition application or otherwise) against Tenant and shall remain undismissed for a period of ninety (90) calendar days;
11.1.6 if default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease Agreement, other than those referred to in the foregoing subsections of this Section 11.1 or in Section 3.2, and which exposes Landlord to criminal liability, and such default shall continue after written notice thereof given by Landlord to Tenant, and Tenant fails to proceed timely and promptly with all due diligence and in good faith to cure the same and thereafter to prosecute the curing of such default with all due diligence (it being intended that in connection with default which exposes Landlord to criminal liability Tenant shall proceed immediately to cure or correct such condition with continuity and with all due diligence and in good faith); or
11.1.7 if an Event of Default occursoccurs under Section 3.2 of this Lease; then, and in any such event, Landlord, at any time thereafter during the continuance of any such Event of Default, may give written notice to Tenant specifying such Event of Default or Events of Default and stating that this Lease Agreement and the terms hereby demised shall terminate on the date specified in such notice, which shall be at least ten (10) days after the giving of such notice, and upon the date specified in such notice this Lease Agreement and the terms hereby demised and all rights of Tenant under this Lease Agreement, including all rights of renewal whether exercised or not, shall terminate. Notwithstanding the foregoing, upon the occurrence of an Event of Default under this Section 11.1.5, the Lease will automatically terminate as fully and completely as if the day of the happening of such contingency were the date herein specifically fixed for the expiration of the Term of this Lease. In addition, notwithstanding the foregoing, upon the occurrence of an Event of Default under Section 3.2 of this Lease, Landlord shall also have the remedy set forth in Section 3.2 hereof, which may be exercised without the giving of notice to the Tenant.
Section 11.2 Upon expiration or termination of this Lease Agreement, Tenant shall quit and peaceably surrender the Demised Premises or any part or portion thereof, to Landlord, and Landlord, upon or at any time after any such expiration or termination may, without further notice, enter upon and re-enter the Demised Premises, and all portions thereof, and repossess itself of the Demised Premises by force, summary proceeding, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises and all portions thereof, and may have, hold and enjoy the Demised Premises and the right to receive all rental and other income of and from the same.
Section 11.3 At any time, or from time to time after any such expiration or termination of this Lease, Landlord may relet the Demised Premises, or any part or portion thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period that would otherwise have constituted the balance of the term of this Lease Agreement) and on such conditions (which may include concessions or free rent) as Landlord, in its sole discretion, may determine and may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Demised Premises or any part or portion thereof, or for any failure to collect any rent due upon any such reletting.
Section 11.4 No such expiration or termination of this Lease Agreement, including a termination of this Lease Agreement as a result of an Event of Default under Section 11.1.5 hereof, shall relieve Tenant of its liabilities and obligations under this Lease Agreement, and such liabilities and obligations shall survive any such expiration or termination.
11.4.1 In the event of termination of this Lease, other than a termination as a result of an Event of Default under this Article XI, Section 11.1.5, whether or not the Demised Premises or any part or portion thereof shall have been relet, Tenant shall pay to Landlord, as and for liquidated and agreed current damages for Tenant’s default:
(a) Landlord shall have the right to accelerate all Base Rent for the remainder of the Term up to a maximum of three (3) years Base Rent; provided however that, with respect to the Bank Loan Payment portion of Base Rent, Landlord shall have the rights right to accelerate the remaining principal and remedies hereinafter set forthaccrued, which shall be distinctbut unpaid interest due on the Bank Loan, separate as well as require that Tenant pay to Landlord all remaining principal and cumulative.
accrued, but unpaid interest due on the City of ▇▇▇▇ Rapids Loans (a) the “Liquidated Rent”). Landlord may terminate this Lease by giving Tenant written notice of its election to do so, declare the Liquidated Rent all immediately due and payable with a present value discount one (1) percentage point below the prime rate published as the Wall Street Journal prime rate in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire Wall Street Journal on the date stated in such notice;Landlord elects said remedy, plus
(b) Landlord may terminate Tenant's right The equivalent of the amount of insurance premiums, and other expenses and charges to possess the Premises without terminating be paid by Tenant hereunder which would be payable under this Lease Agreement by giving written notice Tenant for the remainder of the Term up to Tenant that Tenant's right a maximum of possession shall end on the date stated three (3) years if this Lease Agreement were still in such noticeeffect, whereupon Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; andless
(c) Landlord may enforce the net proceeds of any reletting effected pursuant to the provisions of this Lease and may enforce and protect the rights Section 11.3 hereof after deducting all of Landlord hereunder by a suit or suits Landlord’s expenses 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, connection with such reletting including, without limitation, injunctive reliefall repossession costs, brokerage commissions, legal expenses, reasonable attorneys’ fees, alteration costs, and for recovery expenses of all monies due or to become due from Tenant under any preparation of the provisions of this Lease.
12.3 If Landlord exercises either of the remedies provided Demised Premises, or any part or portion thereof, for in Sections 12.2(a) and 12.2(b), such reletting. Tenant shall surrender possession of and vacate pay such current damages (hereinafter called “Deficiency”) to Landlord monthly on the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of days on which the Premises.
12.4 If Landlord terminates Tenant's right to possess the Premises without terminating Base Rent would have been payable under this Lease, such termination of possession shall not release Tenant, Lease Agreement if this Lease Agreement were still in whole or in part, from Tenant's obligation to pay the Rent hereunder for the full Term, as and when the same becomes due and payableeffect, and Landlord shall have the right, from time to time, be entitled to recover from Tenant each monthly Deficiency as the same shall arise.
11.4.2 If this Lease Agreement terminates as a result of an Event of Default under Article XI, Section 11.1.5 of the Lease, then Landlord shall be entitled to recover from Tenant or Tenant, and Tenant shall remain liable for, ’s estate (in lieu of the equivalent of the amount of all Base Rent and any other sums due and payable to Landlord during the period from unpaid at the date of such notice termination) as damages for loss of the bargain and not as a penalty, an aggregate sum which at the time of such termination represents the difference between i) the then-present worth of the aggregate of the Base Rent, insurance premiums and all other expenses and charges payable by Tenant hereunder that would have accrued for the balance of the Term of this Lease Agreement; and ii) the then present worth of the aggregate rental value of the Demised Premises for the balance of such Term, unless any statute or rule of law covering the proceedings in which such damages are to be proved shall limit the amount of such claim capable of being so proved, in which case Landlord shall be entitled to prove as and for liquidated damages by reason of such breach and termination of possession to this Lease Agreement the stated end of the Term. In any such case, Landlord shall use reasonable efforts to mitigate damages and to re-let the Premises or any part thereof for the account of Tenant for such time (maximum amount which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in allowed by or under any such case, Tenant shall pay statute or rule of law which may govern the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any proceedings in which such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided damages are to be paid by Tenantproved, and any excess whether or residuenot such amount be greater, until the expiration of the Termequal to, shall operate only as an offsetting credit against or less than the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration excess of the TermBase Rent over the rental value referred to above.
11.4.3 The remedies provided in this Article XI, the total aggregate amount Section 11.4 shall in no way limit or affect any of all such excesses which Landlord has then accumulated, if any, shall be paid Landlord’s other rights pursuant to Tenant. No such re-entry, repossession or re-letting 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 at law or in equity. Specified remedies to Tenant, and Landlord, at any time and from time to time, which Landlord may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable resort under the terms of this LeaseArticle XI, Section 11.4 are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled.
12.5 If Section 11.5 No failure by Landlord terminates or by Tenant to insist upon the performance of any of the terms of this Lease pursuant Agreement or to exercise any right or remedy consequent upon a breach thereof, and no acceptance by Landlord of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach or of any of the terms of this Lease Agreement. None of the terms of this Lease Agreement to be kept, observed or performed by Landlord or by Tenant, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Landlord and/or by Tenant, as the case may be. No waiver of any breach shall affect or alter this Lease Agreement, but each of the terms of this Lease Agreement shall continue in full force and effect with respect to any other then-existing or subsequent breach of this Lease Agreement. No waiver of any default of either party herein shall be implied from any omission by the other party to take any action on account of such default, if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and that only for the time and to the extent therein stated. One or more waivers by either party shall not be construed as a Waiver of a subsequent breach of the same covenant, term or condition.
Section 12.2(a) hereof11.6 In the event of any breach or threatened breach by Tenant of any of the terms contained in this Lease Agreement, Landlord shall be entitled to recoverenjoin such breach or threatened breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise as though entry, as reentry, summary proceedings and other remedies were not provided for final damages in this Lease Agreement. Each remedy or right of Landlord provided for Tenant's defaultin this Lease Agreement shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease Agreement, an amount equal to the difference between the present value of the aggregate Rent to be paid or now or hereafter existing at law or in equity or by Tenant hereunder for the unexpired portion of the Termstatute or otherwise, and the then present value exercise or the beginning of the aggregate reasonable fair market rent for exercise by Landlord of any one or more of such rights or remedies shall not preclude the Premises over the same period. In the computation simultaneous or later exercise by Landlord of present value, a discount rate of six percent (6%) per annum shall be employedany or all other rights or remedies.
Appears in 2 contracts
Sources: Lease Agreement (Accentia Biopharmaceuticals Inc), Lease Agreement (Biovest International Inc)
DEFAULTS OF TENANT. 12.1 10.1 The occurrence of any one or more of the following events shall constitute an "Event of Default":
(a) 10.1.1 If default shall be made in the due and punctual payment of any Rent or in the payment of any other amount to be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen ten (1510) days after Tenant's receipt of the date on which such Rent is due and payable and Tenant receives written notice thereof from Landlord; ornotice
(b) 10.1.2 If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.110.1.1, and such default shall continue for a period of thirty twenty (3020) days after Tenant's receipt of written notice thereof given by LandlordLandlord to Tenant, or, provided that there shall be no risk of loss to the Building, the Premises or any interest of Landlord therein, such longer period (not to exceed sixty (60) days) as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 10.1.3 The filing of a petition by Tenant for adjudication as a bankrupt or insolvent, or for its reorganization or for the appointment of a receiver or trustee of Tenant's property; the filing of a petition against Tenant for adjudication as a bankrupt or insolvent, or for its reorganization or for the appointment of a receiver or trustee of Tenant's property and the failure to discharge or dismiss such proceedings within sixty (60) days from its filing; an assignment by Tenant for the benefit of creditors; or the taking possession of the Premises or any other property of Tenant by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant.
10.2 If an Event of Default occurs, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative.
(a) 10.2.1 Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;, in which event, Tenant will remain liable for all Rent and other charges due hereunder through the date of such termination and all damages resulting from Tenant's default.
(b) 10.2.2 Landlord may terminate Tenant's right to possess the Premises without terminating this Lease by giving written notice to Tenant that Tenant's ten (10) days written notice for monetary defaults and thirty (30) days written notice for non-monetary defaults right of possession shall end on the date stated in such notice, whereupon Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; andnotice and Landlord may enter the Premises to take possession thereof and to remove Tenant's property therefrom and to dispose of the same as Landlord sees fit. Such entry and repossession may be effectuated by summary dispossession proceedings or otherwise as permitted by law.
(c) 10.2.3 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions provision of this Lease.
12.3 10.2.4 Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the account of Tenant and may enter upon the Premises for such purposes. No notice of Landlord's intention to perform such covenants need be given Tenant unless expressly required by this Lease. Landlord shall not be liable to the Tenant for any loss or damage caused by acts of Landlord in remedying or attempting to remedy such default and Tenant shall pay to Landlord all reasonable expenses incurred by Landlord in connection with remedying or attempting to remedy such default. Any expenses incurred by Landlord shall constitute Additional Rent and shall hereunder accrue interest from the date of payment by Landlord until repaired by Tenant at the highest rate permitted by law.
10.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) 10.2.1 and 12.2(b)10.2.2, Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, in broom-clean condition, and Landlord may, upon proper process of law, may re-enter and take complete and peaceful possession of the Premises.
12.4 10.4 If Landlord terminates Tenant's right to possess 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 such event, Landlord shall be entitled to recover as damages all Rent and when the same becomes other sums due and payablepayable to Landlord on the date of termination plus (1) an amount equal to the Rent and other sums provided herein to be paid by Tenant for the residue for the Term hereof and (2) the cost of performing any other covenants to be performed by Tenant. Alternatively, and 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 due and payable to Landlord 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 make commercially reasonable efforts to mitigate damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord, in its sole discretion, shall determine and Landlord reasonably shall determinewill not be responsible for failure to relet the Premises or, in the event of reletting, for failure to collect the rent therefor. Landlord may let or relet other premises prior to reletting the Premises hereunder. Also, in any such case, Landlord may make repairs, alterations and additions in or to the Premises to the extent reasonably necessary, and Tenant within thirty (30) days after written demand, shall pay the cost of thereof, together with Landlord's reasonable expenses of re-letting, such additional expenses to be construed under this Lease as Additional Rent. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-entry, repair and alteration and its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entryreentry, repossession repossession, repairs, alterations, additions or re-letting 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, nor shall same operate to release Tenant, in whole or in part, from any of Tenant's obligations hereunder, and Landlord, at any time and from time to time, may ▇▇▇ sue and seek a judgment for any deficiencies from time to time remaining remain▇▇▇ after the application of the proceeds of any such re-letting.
10.5 All property removed from the Premises by Landlord pursuant to any provisions of this Lease or by law shall be handled, removed or stored by Landlord at the cost and expense of Tenant. In no event Tenant shall pay Landlord be entitled to collect Rent or other for all expenses incurred by Landlord in such removal and for storage charges from Tenant prior to the date for such property so long as the same is due and payable shall be in 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 notice from Landlord, at Landlord's option, shall be deemed conclusively to have been conveyed by Tenant to Landlord as by bill of sale, without further payment or credit by Landlord to Tenant.
10.6 If Landlord terminates Tenant's right to possess the Premises without terminating this Lease, Tenant shall continue to have such right, if any, as Tenant may have to assign this Lease or sublet the Premises (but only in whole), pursuant to the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for if Tenant were not in default under this Lease. Tenant's defaultright to so assign or sublet shall terminate in the event Landlord notifies Tenant that Landlord has sublet the Premises, an amount equal unless such assignment or sublet terminates prior to the difference between the present value termination of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion Term or any validly exercised extension of the Term, and in which event Tenant's right to assign or sublet shall recommence upon termination of Landlord's assignment or sublet during the then present value Term or any validly exercised extension of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employedTerm.
Appears in 2 contracts
Sources: Commercial/Industrial Building Lease (World Diagnostics Inc), Commercial/Industrial Building Lease (World Diagnostics Inc)
DEFAULTS OF TENANT. 12.1 The occurrence of 11.1 If any one or more of the following events shall constitute an (in this Article sometimes called "Event Events of Default") shall happen:
(a) If default shall be made in the due and punctual payment of any Basic Rent and such default shall continue for a period of ten (10) days;
(b) If a default shall be made in the due and punctual payment of any Additional Rent payable under this Lease Agreement or in the payment of any other amount obligation to be paid by Tenant to LandlordTenant, when and as the same shall become due and payable, and such default shall continue for a period of fifteen ten (1510) days after Tenant's receipt of written notice thereof from Landlord; orgiven by Landlord to Tenant;
(bc) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this LeaseLease Agreement, other than as those referred to in subsection Subparagraphs (a) and (b) of this Section 12.1Paragraph 11.1, and such default shall continue for a period of thirty fifteen (3015) days after Tenant's receipt the mailing of written notice thereof given by LandlordLandlord to Tenant, or in the case of such longer period as is reasonable to cure said default, if said a default or contingency which cannot, not with due diligence and in good faith, faith be cured within said thirty fifteen (3015) days, provided that and Tenant fails to proceed promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 If an , it being intended that in connection with a default not susceptible of being cured with due diligence and in good faith within fifteen (15) days, that the time allowed Tenant within which to cure the same shall be extended for such period as may be necessary for the curing thereof promptly with due diligence and in good faith; then, and in any such event, Landlord, at any time thereafter during the continuance of any such Event of Default, may give written notice to Tenant specifying such Event of Default occursor Events of Default and stating that this Lease Agreement and the terms hereby demised shall expire and terminate on the date specified in such notice, and upon the date specified in such notice this Lease Agreement and the terms hereby demised, and all rights of Tenant under this Lease Agreement shall terminate, or in the alternative or in addition to the foregoing remedy, Landlord may assert and have the benefit of any other remedy allowed herein, at law, or in equity, including the right to regain possession of the Demised Premises.
11.2 Upon any expiration or termination of this Lease Agreement, Tenant shall quit and peaceably surrender the Demised Premises, and all portions thereof, to Landlord, and Landlord, upon or at any time after any such expiration or termination, may, without further notice, enter and reenter the Demised Premises, and all portions thereof, and possess and repossess itself thereof, by force, summary proceeding, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises, and all portions thereof, and may have, hold and enjoy the Demised Premises and the right to receive all rental and other income of and from the same.
11.3 At any time, or from time to time after any such termination, Landlord may relet the Demised Premises, or any portion thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease Agreement) and on such conditions (which may include concessions or free rent) as Landlord, in its sole discretion, may determine and may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Demised Premises, or any part thereof, or for any failure to collect any rent due upon any such reletting.
11.4 No such expiration or termination of this Lease Agreement or retaking of possession shall relieve Tenant of its liabilities and obligations under this Lease Agreement (as if this Lease Agreement had not been so terminated), and such liabilities and obligations shall survive any such termination. In the event of any such termination, whether or not the Demised Premises, or any portion thereof, shall have been relet, Tenant shall pay to Landlord a sum equal to the rights Basic Rent, and remedies hereinafter set forththe Additional Rent and any other charges required to be paid by Tenant, which up to the time of such expiration or termination of this Lease Agreement or retaking of possession by Landlord, and thereafter Tenant, until the end of what would have been the term of this Lease Agreement in the absence of such expiration or termination, shall be distinctliable to Landlord for, separate and cumulative.shall pay to Landlord, as and for agreed current damages for Tenant's default:
(a) Landlord may terminate The equivalent of the amount of the Basic Rent and Additional Rent which would be payable under this Lease Agreement by giving Tenant written notice of its election to do soif this Lease Agreement were still in effect, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;less
(b) Landlord may terminate Tenant's right The net proceeds of any reletting effected pursuant to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) Landlord may enforce the provisions of this Lease and may enforce and protect the rights Paragraph 11.3 hereof after deducting all of Landlord hereunder by a suit or suits Landlord's expenses 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 remedyconnection with such reletting, including, without limitation, injunctive reliefall repossession costs, brokerage commissions, legal expenses, reasonable attorney's fees, alteration costs, and for recovery expenses of all monies due or to become due from Tenant under any preparation of the provisions Demised Premises, or any portion thereof, for such reletting. Tenant shall pay such current damages in the amount determined in accordance with the terms of this Lease.
12.3 If Paragraph 12.3, as set forth in a written statement thereof from Landlord exercises either of to Tenant (hereinafter called the remedies provided for in Sections 12.2(a) and 12.2(b"Deficiency"), Tenant shall surrender possession of and vacate to Landlord in monthly installments on the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of days on which the Premises.
12.4 If Landlord terminates Tenant's right to possess the Premises without terminating Basic Rent would have been payable under this Lease, such termination of possession shall not release Tenant, Lease Agreement if this Lease Agreement were still in whole or in part, from Tenant's obligation to pay the Rent hereunder for the full Term, as and when the same becomes due and payableeffect, and Landlord shall be entitled to recover from Tenant each monthly installment of the Deficiency as the same shall arise.
11.5 At any time after any such termination or retaking of possession, whether or not Landlord shall have the rightcollected any monthly Deficiencies as set forth in Paragraph 12.3, from time to time, Landlord shall be entitled to recover from Tenant, and Tenant shall remain liable for, all Rent and any other sums due and payable pay to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recoveron demand, as and for final damages for Tenant's default, an amount equal to the difference between excess, if any, of the then present value worth of the aggregate of the Basic Rent and Additional Rent and any other charges to be paid by Tenant hereunder for the unexpired portion of the Termterm of this Lease Agreement (assuming this Lease Agreement had not been so terminated), and the then present value worth of the then aggregate fair and reasonable fair market rent of the Demised Premises for the Premises over the same period. In the computation of present valueworth, a discount at the rate of six eight percent (68%) per annum shall be employed. If the Demised Premises, or any portion thereof, be relet by Landlord for the unexpired term of this Lease Agreement, or any part thereof, before presentation of proof of such damages to any court, commission or tribunal, the amount of rent reserved upon such reletting shall, prima facie, be the fair and reasonable fair market rent for the part or the whole of the Demised Premises so relet during the term of the reletting. Nothing herein contained or contained in Paragraph 12.3 shall limit or prejudice the right of Landlord to prove for and obtain, as damages by reason of such expiration or termination, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to or less than the amount of the excess referred to above.
11.6 No failure by Landlord or by Tenant to insist upon the performance of any of the terms of this Lease Agreement or to exercise any right or remedy consequent upon a breach thereof, and no acceptance by Landlord of full or partial rent from Tenant or any third party during the continuance of any such breach, shall constitute a waiver of any such breach or of any of the terms of this Lease Agreement. None of the terms of this Lease Agreement to be kept, observed or performed by Landlord or by Tenant, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Landlord and/or by Tenant, as the case may be. No waiver of any breach shall affect or alter this Lease Agreement, but each of the terms of this Lease Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach of this Lease Agreement. No waiver of any default of Tenant herein shall be implied from any omission by Landlord to take any action on account of such default, if such default persists or is repeated and no express waiver shall affect any default other than the default specified in the express waiver and that only for the time and to the extent therein stated. One or more waivers by Landlord shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
11.7 In the event of any breach of threatened breach by Tenant of any of the terms contained in this Lease Agreement, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise as though entry, reentry, summary proceedings and other remedies were not provided for in this Lease Agreement. Each remedy or right of Landlord provided for in this Lease Agreement shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease Agreement, or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or the beginning of the exercise by Landlord of any one or more of such rights or remedies shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies.
11.8 If, during the term of this Lease Agreement, (i) Tenant shall make an assignment for the benefit of creditors, (ii) a voluntary petition be filed by Tenant under any law having for its purpose the adjudication of Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to an involuntary petition in bankruptcy, (iii) a receiver be appointed for the property of Tenant, or (iv) any department of the state or federal government, or any officer thereof duly authorized, shall take possession of the business or property of Tenant, the occurrence of any such contingency shall be deemed a breach of this Lease Agreement and this Lease Agreement shall, ipso facto upon the happening of any of said contingencies, be terminated and the same shall expire as fully and completely as if the day of the happening of such contingency were the date herein specifically fixed for the expiration of the term, and Tenant will then quit and surrender the Demised Premises, but Tenant shall remain liable as hereinafter provided. Notwithstanding other provisions of this Lease Agreement, or any present or future law, Landlord shall be entitled to recover from Tenant or Tenant's estate (in lieu of the equivalent of the amount of all rent and other charges unpaid at the date of such termination) as damages for loss of the bargain and not as a penalty, an aggregate sum which at the time of such termination represents the excess of the then present worth of the aggregate of the Basic Rent and Additional Rent and any other charges payable by Tenant hereunder that would have accrued for the balance of the term of this Lease Agreement (assuming this Lease Agreement had not been so terminated), over the then present worth of the aggregate fair market rent of the Demised Premises for the balance of such period, unless any statute or rule of law covering the proceedings in which such damages are to be proved shall limit the amount of such claim capable of being so proved, in which case Landlord shall be entitled to prove as and for liquidated damages by reason of such breach and termination of this Lease Agreement the maximum amount which may be allowed by or under any such statute or rule of law without prejudice to any rights of Landlord against any guarantor of Tenant's obligations herein. In the computation of present worth, a discount rate of eight percent (8%) per annum shall be employed. Nothing contained herein shall limit or prejudice Landlord's right to prove and obtain as liquidated damages arising out of such breach and termination the maximum amount allowed by any such statute or rule of law which may govern the proceedings in which such damages are to be proved, whether or not such amount be greater than, equal to, or less than the amount of the excess of the present value of the rent and other charges required herein over the present value of the fair market rents referred to above. Specified remedies to which Landlord may resort under the terms of this Paragraph 11.8 are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled.
11.9 Tenant hereby expressly waives, so far as permitted by law, any and all right of redemption or reentry or repossession or to revive the validity and existence of this Lease Agreement in the event that Tenant shall be dispossessed by a judgment or by order of any court having jurisdiction over the Demised Premises or the interpretation of this Lease Agreement or in case of entry, reentry or repossession by Landlord or in case of any expiration or termination of this Lease Agreement.
Appears in 1 contract
DEFAULTS OF TENANT. 12.1 A. The occurrence of any one or more of the following events shall constitute an "Event of DefaultEVENT OF DEFAULT":
(a) 1. If default shall be made in the due and punctual payment of any Rent or in the payment of any other amount to be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen thirty (1530) days after Tenant's receipt of written notice thereof from Landlordto Tenant; or
(b) 2. If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease, other than as referred to in subsection (a) 1. of this Section 12.1, XII and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by LandlordLandlord to Tenant, or such longer period as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence commences the cure of the same within the thirty (30) day period and thereafter fails to prosecute prosecutes the curing of such default with due diligence and in good faith;
3. If Tenant shall abandon any substantial portion of the Premises.
12.2 B. If an Event of Default occurs, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative.
(a) 1. Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Lease Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice, and Landlord may immediately recover the amount by which all current and future rent and all other charges and monetary obligations due hereunder during the remainder of the Lease Term exceeds the amount of such rental loss that Tenant proves could be reasonably avoided, and all other damages to which Landlord is entitled under law, specifically including, without limitation, all Landlord's expenses of reletting (including repairs, alterations, improvements, additions, decorations, legal fees and brokerage commissions);
(b) 2. Landlord may terminate Tenant's right Tena▇▇'▇ ▇ight to possess the Premises without terminating this Lease by giving written notice to Tenant that Tenant's right Tena▇▇'▇ ▇ight of possession shall end on the date stated in such notice, whereupon Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) 3. 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions of this Lease.
12.3 C. If Landlord exercises either of the remedies provided for in Sections 12.2(a) B.1 and 12.2(b)B.2 above, Tenant shall Tena▇▇ ▇▇▇ll surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, may re-enter and take complete and peaceful possession of the Premises, with process of law.
12.4 D. If Landlord terminates Tenant's right to possess the Premises without terminating this Lease, Landlord may, at Landlord's option, enter into the Premises, remove Tena▇▇'▇ ▇igns and other evidences of tenancy, and take and hold possession thereof, without such termination of entry and possession shall not release terminating the Lease or releasing Tenant, in whole or in part, from any obligation, including Tenant's obligation to pay the Rent Rent, including any amounts treated as additional rent, hereunder for the full Term, as and when the same becomes due and payable, and 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 due and payable to Landlord during the period from the date of such notice of termination of possession to the stated end of the Lease Term. In any such case, Tenant shall pay forthwith to Landlord, if Landlord shall use reasonable efforts so elects, a sum equal to mitigate damages and the entire amount of the Rent, including any amounts treated as additional rent hereunder, for the residue of the stated Lease Term plus any other sums provided herein to re-let be paid by Tenant for the remainder of the Lease Term. Landlord may, but need not, relet the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) rent and upon such terms as Landlord reasonably shall determine. AlsoLandlord, in its sole discretion, shall determine (including the right to relet the Premises for a greater or lesser term than that remaining under this Lease, the right to relet the Premises as a part of a larger area, and the right to change the character or use made of the Premises). If Landlord decides to relet the Premises or a duty to relet is imposed upon Landlord by law, Landlord and Tenant agree that Landlord shall only be required to use the same efforts Landlord then uses to lease other properties Landlord owns or manages (or if the Premises is then managed for Landlord, then Landlord will instruct such manager to use the same efforts such manager then uses to lease other space or properties which it owns or manages); provided, however, that Landlord (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Landlord (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Landlord shall not be required to observe any instruction given by Tenant about such reletting or accept any tenant offered by Tenant unless such offered tenant has a creditworthiness acceptable to Landlord and agrees to use the Premises in a manner consistent with the Lease. In any such case, Landlord may, but shall not be required to, make repairs, alterations and additions in or to the Premises and redecorate the same to the extent Landlord deems necessary or desirable, and Tenant shall, upon demand, pay the cost thereof, together with Land▇▇▇▇'▇ ▇xpenses of reletting, including, without limitation, any broker's commission incurred by Landlord. If the consideration collected by Landlord upon any such reletting plus any sums previously collected from Tenant are not sufficient to pay the full amount of all Rent, including any amounts treated as additional rent hereunder and other sums reserved in this Lease for the remaining Lease Term, together with the costs of repairs, alterations, additions, redecorating, and Landlord's expenses of reletting and the collection of the Rent accruing therefrom (including attorneys' fees and broker's commissions), Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. to Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent such deficiency upon demand. Tena▇▇ ▇▇▇ees that Landlord may file suit to recover sums falling due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting shall be construed as an eviction or ouster of Tenant or as an election on Landlord's part to terminate under this Lease, unless a written notice of such intention is given to Tenant, and Landlord, at any time and Section D from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount equal to the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the Term, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employed.
Appears in 1 contract
Sources: Lease Agreement (Ebs Building LLC)
DEFAULTS OF TENANT. 12.1 10.1 The occurrence of any one or more of the following events shall constitute an "“Event of Default"”:
(a) 10.1.1 If default shall be made in the due and punctual payment of any Rent or in the payment of any other amount to be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen (15i) in the case of Base Rent, ten (10) days after Tenant's receipt the date on which such Base Rent is due and payable, or (ii) in the case of any other Rent or charge, ten (10) days after the date on which Tenant receives written notice thereof from Landlord; orLandlord of Tenant’s failure to pay same when due and payable.
(b) 10.1.2 If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.110.1.1, and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by LandlordLandlord to Tenant, or such longer period period, as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 10.1.3 The filing of a petition by Tenant for adjudication as a bankrupt or insolvent, or for its reorganization or for the appointment of a receiver or trustee of Tenant’s property; the filing of a petition against Tenant for adjudication as a bankrupt or insolvent, or for its reorganization or for the appointment of a receiver or trustee of Tenant’s property and the failure to discharge or dismiss such proceedings within one hundred twenty (120) days from its filing; an assignment by Tenant for the benefit of creditors; or the taking possession of the Premises or any other property of Tenant by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant.
10.2 If an Event of Default occurs, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulative.
(a) 10.2.1 Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;, in which event, Tenant will remain liable for all Rent and other charges due hereunder through the date of such termination and all damages resulting from Tenant’s default.
(b) 10.2.2 Landlord may terminate Tenant's ’s right to possess the Premises without terminating this Lease by giving written notice to Tenant that Tenant's ’s right of possession shall end on the date stated in such notice, whereupon Tenant's ’s right to possess the Premises or any part thereof shall cease on the date stated in such notice; andnotice and Landlord may enter the Premises to take possession thereof and to remove Tenant’s property therefrom and to dispose of the same as Landlord sees fit. Such entry and repossession may be effectuated by summary dispossession proceedings or otherwise as permitted by law.
(c) 10.2.3 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions provision of this Lease.
12.3 10.2.4 Landlord may remedy or attempt to remedy any default of Tenant under this Lease for the account of Tenant and may enter upon the Premises for such purposes. No notice of Landlord’s intention to perform such covenants need be given Tenant unless expressly required by this Lease. Landlord shall not be liable to the Tenant for any loss or damage caused by acts of Landlord in remedying or attempting to remedy such default and Tenant shall pay to Landlord all reasonable expenses incurred by Landlord in connection with remedying or attempting to remedy such default. Any expenses incurred by Landlord shall constitute Additional Rent and shall hereunder accrue interest from the date of payment by Landlord until repaired by Tenant at the Maximum Interest Rate.
10.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) 10.2.1 and 12.2(b)10.2.2, Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, in broom-clean condition, and Landlord may, upon proper process of law, may re-enter and take complete and peaceful possession of the Premises.
12.4 10.4 If Landlord terminates Tenant's ’s right to possess the Premises without terminating this Lease, such termination of possession shall not release Tenant, in whole or in part, from Tenant's ’s obligation to pay the Rent hereunder for the full Term. In such event, Landlord shall be entitled to recover as damages all Rent and when the same becomes other sums due and payablepayable to Landlord on the date of termination plus (1) an amount equal to the Rent and other sums provided herein to be paid by Tenant for the residue for the Term hereof and (2) the cost of performing any other covenants to be performed by Tenant. Alternatively, and 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 due and payable to Landlord 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 be required to use good faith, commercially reasonable efforts to mitigate damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord, shall reasonably determine and Landlord reasonably shall determinewill not be responsible for failure to relet the Premises or, in the event of reletting, for failure to collect the rent therefor. Landlord may let or relet other premises prior to reletting the Premises hereunder. Also, in any such case, Landlord may make repairs, alterations and additions in or to the Premises to the extent reasonably necessary, and Tenant within thirty (30) days after written demand, shall pay the reasonable cost of thereof, together with Landlord's ’s reasonable expenses of re-letting, such additional expenses to be construed under this Lease as Additional Rent. If Landlord elects to accelerate Rent as provided in this subsection, Tenant shall be entitled to a credit against the accelerated Rent in the amount of the then present value (calculated using a discount rate equal to the yield then obtainable from the United States Treasury Note with a maturity date closest to the date of expiration of the Lease Term as published in the Wall Street Journal) of the fair market rental value of the Premises for the period from the date of the default through the expiration of the Lease Term (excluding any then unexercised renewal options), which fair market rental value shall take into account (i) the reasonably anticipatable time period necessary to relet the Premises, (ii) the reasonably anticipatable reletting expenses, including real estate brokerage commissions, legal fees, renovation/reconfiguration costs, and tenant improvement costs, and (iii) all other relevant considerations. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-entry, repair and alteration and its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entryreentry, repossession repossession, repairs, alterations, additions or re-letting reletting shall be construed as an eviction or ouster of Tenant or as an election on Landlord's ’s part to terminate this Lease, unless a written notice of such intention is given to Tenant, nor shall same operate to release Tenant, in whole or in part, from any of Tenant’s obligations hereunder, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting.
10.5 All property removed from the Premises by Landlord pursuant to any provisions of this Lease or by law shall be handled, removed or stored by Landlord at the cost and expense of Tenant. In no event Tenant shall pay Landlord be entitled to collect Rent or other for all expenses reasonably incurred by Landlord in such removal and for storage charges from Tenant prior to the date for such property so long as the same is due and payable shall be in 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 written notice from Landlord, at Landlord’s option, shall be deemed conclusively to have been conveyed by Tenant to Landlord as by ▇▇▇▇ of sale, without further payment or credit by Landlord to Tenant.
10.6 If Landlord terminates Tenant’s right to possess the Premises without terminating this Lease, Tenant shall continue to have such right, if any, as Tenant may have to assign this Lease or sublet the Premises (but only in whole), pursuant to the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for if Tenant were not in default under this Lease. Tenant's default’s right to so assign or sublet shall terminate in the event Landlord notifies Tenant that Landlord has sublet the Premises, an amount equal unless such assignment or sublet terminates prior to the difference between the present value termination of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion Term or any validly exercised extension of the Term, and in which event Tenant’s right to assign or sublet shall recommence upon termination of Landlord’s assignment or sublet during the then present value Term or any validly exercised extension of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employedTerm.
Appears in 1 contract
Sources: Commercial/Industrial Building Lease (Intcomex Holdings, LLC)
DEFAULTS OF TENANT. 12.1 The occurrence of any one or more of the following events shall constitute an "Event of Default":
(a) If default Tenant shall be made in the due and punctual payment of any “Default” if (i) Tenant shall not have paid Rent or in the payment of any other amount to be paid payable by Tenant pursuant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen this Lease within ten (1510) days after following Tenant's ’s receipt of written notice thereof from LandlordLandlord stating that such payment was not made prior to its due date (a “Monetary Default”); or
(bii) If default Tenant shall be made by Tenant in keeping, observing or performing not have performed any of the terms contained in this Leaseother covenants, other than as referred to in subsection (a) terms, conditions or provisions of this Section 12.1, and such default shall continue for a period of Lease within thirty (30) days after Tenant's ’s receipt of written notice thereof given by Landlordspecifying such failure; provided, or such longer period as is reasonable however, that with respect to cure said default, if said default those failures that cannot, not with due diligence and in good faith, be cured within said such thirty (30) days30)-day period, provided that Tenant promptly and with due diligence and shall not be deemed to be in good faith fails default hereunder if Tenant commences to commence the cure of the same such default within the such thirty (30) day 30)-day period and thereafter fails to prosecute continues the curing of such default with all due diligence diligence, but in any event not to exceed sixty (60) days from the commencement of such cure; (iii) Tenant shall fail to maintain any or all of the insurance required hereunder and such failure shall continue for three (3) business days after written notice thereof given by Landlord to Tenant; or (iv) Tenant is adjudicated bankrupt or adjudged to be insolvent; a receiver or trustee is appointed for substantially all of the property and affairs of Tenant; Tenant makes an assignment for the benefit of its creditors, files a petition in good faithbankruptcy or insolvency or for reorganization, or makes application for the appointment of a receiver; or any execution or attachment is issued against Tenant or substantially all of the property of Tenant, whereby the Premises or the Building and related improvements thereon are taken or occupied or attempted to be taken or occupied by someone other than Tenant or any subtenant of Tenant, except as may be permitted herein, and such adjudication, appointment, assignment, petition, execution or attachment shall not be set aside, vacated, discharged or bonded within sixty (60) days after the issuance of the same (any of the Defaults in the immediately preceding clauses (ii), (iii) and (iv), a “Non-Monetary Default”).
12.2 (b) If an Event of Default occursLandlord shall claim that Tenant is in Default, Landlord shall have the rights right to institute from time to time an action or actions (i) to recover actual damages (exclusive of punitive, consequential or special damages), (ii) for injunctive and/or other equitable relief, or (iii) to recover possession of the Premises and remedies hereinafter set forth, which shall be distinct, separate and cumulative.
(a) Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; andLease.
(c) Landlord may enforce In the event of any termination of this Lease in accordance with 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(aSection 17.1(b) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and 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 due and payable to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such caseabove, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. to Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenantall Rent, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount equal to the difference between the present value of the aggregate Rent sums required to be paid by Tenant hereunder for to and including the unexpired portion date of the Termsuch termination, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employedreentry or repossession.
Appears in 1 contract
DEFAULTS OF TENANT. 12.1 The occurrence of any one or more 13.1) If during the Term of the following events shall constitute an "Event of Default":
Lease (a) Tenant shall make an assignment for the benefit of creditors, or (b) a voluntary petition be filed by Tenant under the Bankruptcy Act of the United States or any state statute similar thereto, or Tenant be adjudged insolvent or a bankrupt pursuant to an involuntary petition, or (c) a receiver or trustee be appointed for the property of Tenant by reason of insolvency of Tenant, or (d) any department of the state or federal government, or any officer thereof duly authorized, shall take possession of the business or property of Tenant by reason of the insolvency of the Tenant, or (e) if, under Chapter XI of the Bankruptcy Act, Tenant continues in possession without the appointment of a receiver or trustee, or (f) Tenant is the subject of any petition or proceeding related to relief from creditors, the Lease shall, upon the happening of any of said contingencies and at Landlord's option, be terminated and the same shall expire as fully and completely as if the day of the happening of such contingency were the date herein specifically fixed for the expiration of the Term, and Tenant will then quit and surrender the Leased Premises, but Tenant shall remain liable as hereinafter provided.
13.2) If during the Term of the Lease Tenant shall default shall be made in fulfilling any of the due and punctual covenants of the Lease (other than the covenants for the payment of Base Rent or Additional Rent), Landlord may give Tenant notice of any Rent default or of the happening of any contingency referred to in this paragraph, and if at the expiration of thirty (30) days after the service of such notice the default or contingency upon which said notice was based shall continue to exist, or in the payment case of any other amount to a default or contingency which cannot with due diligence be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen (15) days after Tenant's receipt of written notice thereof from Landlord; or
(b) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.1, and such default shall continue for cured within a period of thirty (30) days days, if Tenant fails to proceed promptly after Tenant's receipt the service of written such notice thereof given by Landlord, or such longer period as is reasonable and with all due diligence to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with all due diligence and in good faith.
12.2 If an Event of Default occursdiligence, Landlord shall have the rights and remedies hereinafter set forthLandlord, which shall be distinctat its option, separate and cumulative.
(a) Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) 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 hereinLease, and for the enforcement of any other appropriate legal or equitable remedy, including, without limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b)upon such termination, Tenant shall will quit and surrender possession of and vacate the Leased Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and Landlord shall have the right, from time to time, to recover from Tenant, and but Tenant shall remain liable for, all Rent and any other sums due and payable to Landlord during as hereinafter provided.
13.3) If Tenant shall default in the period from the date of such notice of termination of possession to the stated end payment of the Term. In any such caseBase Rent expressly reserved hereunder, Landlord shall use reasonable efforts to mitigate damages and to re-let the Premises or any part of the same, and such default shall continue for fifteen (15) days after notice thereof for the account of Tenant for by Landlord, or such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, default in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses any item of re-letting and second to the payment of Additional Rent herein provided to be paid by TenantTenant hereunder, or any part of the same, and such default shall continue for thirty (30) days after notice thereof by Landlord, or if the Lease shall expire as provided in Paragraphs 13.1 or 13.2 of this Article, Landlord or Landlord's agents and servants may immediately or at any excess time thereafter re-enter the Leased Premises and remove all persons and any or residueall property therefrom, until either by summary dispossession proceedings or by any suitable action or proceedings at law or by force or otherwise and repossess and enjoy said Leased Premises, together with all additions, alterations and improvements, without re-entry and repossession working forfeiture or waiver of the rents to be paid and the covenants to be performed by Tenant during the Term hereof. Upon the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration Term of the TermLease by reason of any of the events described in Paragraphs 13.1 or 13.2, or in the total aggregate amount event of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession termination of the Lease by summary dispossession proceedings or re-letting shall be construed as an eviction under any provision of law now or ouster hereafter in force by reason of or based upon or arising out of a default under or a breach of the Lease on the part of Tenant (except where such breach or as an election on default is determined by a court of competent jurisdiction to be justified because of Landlord's acts or omissions), or upon Landlord recovering possession of the Leased Premises in the manner or in any of the circumstances whatsoever, whether with or without legal proceedings, by reason of or based upon or arising out of a default under or a breach of the Lease on the part to terminate this Lease, unless a written notice of such intention is given to Tenant, and LandlordLandlord may, at its option, at any time and from time to time, relet the Leased Premises, or any part thereof, for the account of Tenant or otherwise, and receive and collect the rents therefor, applying the same first to the payment of such expenses as Landlord may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application have incurred in recovering possession of the Leased Premises, including legal expenses and attorneys' fees, and for putting the same into good order or condition or preparing or altering the same for re-rental and all other expenses, commissions and charges paid, assumed, or incurred by Landlord in reletting the Leased Premises and then to the fulfillment of the covenants of Tenant hereunder. Any such reletting herein provided for may be for the remainder of the Term of the Lease as originally granted or for a longer or shorter period. In any such case or whether or not the Leased Premises, or any part thereof, is relet, Tenant shall pay to Landlord the Base Rent and the Additional Rent required to be paid by Tenant up to the time of such termination of the Lease, as the case may be, and thereafter, except in a case where liability of Tenant as hereinafter provided arises by reason of any of the contingencies referred in Paragraph 13.l hereof, Tenant covenants and agrees, if required by Landlord, to pay to Landlord until the end of the Term of the Lease the equivalent of the amount of all the Base Rent and Additional Rent reserved herein less the net proceeds of any reletting, if any. Landlord shall have the election, in place and stead of holding Tenant so liable, forthwith to recover against Tenant, as damages for loss of the bargain and not as penalty, an aggregate sum which at the time of such re-letting. In no event shall termination of the Lease for such recovery of possession of the Leased Premises by Landlord, as the case may be, represents the then present worth of the excess, if any, of the aggregate of the Base Rent and Additional Rent payable by Tenant hereunder that would have accrued for the balance of the Term, over the aggregate rental value of the Leased Premises for the balance of such Term.
13.4) The specified remedies to which Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable may resort under the terms of the Lease are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled in case of any breach or threatened breach by Tenant of any provision of the Lease. The failure of Landlord to insist in any one or more cases upon the strict performance of any of the covenants of the Lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant or option. A receipt by Landlord of Base Rent or Additional Rent, including payment of Base Rent or Additional Rent by Tenant's receiver, trustee in bankruptcy, creditor or assignee, with knowledge of breach of any covenant hereof (other than the payment of Base Rent or Additional Rent) shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord. In addition to other remedies provided in this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and the restraint by injunction for final damages for Tenant's default, an amount equal to the difference between the present value violation or attempted or threatened violation of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion covenants, conditions or provisions of the Term, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employedLease.
Appears in 1 contract
Sources: Lease Agreement (Entegris Inc)
DEFAULTS OF TENANT. 12.1 The occurrence of 11.1 If any one or more of the following events shall constitute an (in this Article sometimes called "Event Events of Default") shall happen:
(a) If default shall be made in the due and punctual payment of any Basic Rent and such default shall continue for a period of ten (10) days;
(b) If a default shall be made in the due and punctual payment of any Additional Rent payable under this Lease Agreement or in the payment of any other amount obligation to be paid by Tenant to LandlordTenant, when and as the same shall become due and payable, and such default shall continue for a period of fifteen ten (1510) days after Tenant's receipt the mailing of written notice thereof from Landlord; orgiven by Landlord to Tenant;
(bc) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this LeaseLease Agreement, other than as those referred to in subsection Subparagraphs (a) and (b) of this Section 12.1Paragraph 11.1, and such default shall continue for a period of thirty fifteen (3015) days after Tenant's receipt the mailing of written notice thereof given by LandlordLandlord to Tenant, or in the case of such longer period as is reasonable to cure said default, if said a default or contingency which cannot, not with due diligence and in good faith, faith be cured within said thirty fifteen (3015) days, provided that and Tenant fails to proceed promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 If an , it being intended that in connection with a default not susceptible of being cured with due diligence and in good faith within fifteen (15) days, that the time allowed Tenant within which to cure the same shall be extended for such period as may be necessary for the curing thereof promptly with due diligence and in good faith; then, and in any such event, Landlord, at any time thereafter during the continuance of any such Event of Default, may give written notice to Tenant specifying such Event of Default occursor Events of Default and stating that this Lease Agreement and the terms hereby demised shall expire and terminate on the date specified in such notice, and upon the date specified in such notice this Lease Agreement and the terms hereby demised, and all rights of Tenant under this Lease Agreement shall terminate, or in the alternative or in addition to the foregoing remedy, Landlord may assert and have the benefit of any other remedy allowed herein, at law, or in equity, including the right to regain possession of the Demised Premises.
11.2 Upon any expiration or termination of this Lease Agreement, Tenant shall quit and peaceably surrender the Demised Premises, and all portions thereof, to Landlord, and Landlord, upon or at any time after any such expiration or termination, may, without further notice, enter and reenter the Demised Premises, and all portions thereof, and possess and repossess itself thereof, by force, summary proceeding, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises, and all portions thereof, and may have, hold and enjoy the Demised Premises and the right to receive all rental and other income of and from the same.
11.3 At any time, or from time to time after any such termination, Landlord may relet the Demised Premises, or any portion thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease Agreement) and on such conditions (which may include concessions or free rent) as Landlord, in its sole discretion, may determine and may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Demised Premises, or any part thereof, or for any failure to collect any rent due upon any such reletting.
11.4 No such expiration or termination of this Lease Agreement or retaking of possession shall relieve Tenant of its liabilities and obligations under this Lease Agreement (as if this Lease Agreement had not been so terminated), and such liabilities and obligations shall survive any such termination. In the event of any such termination, whether or not the Demised Premises, or any portion thereof, shall have been relet, Tenant shall pay to Landlord a sum equal to the rights Basic Rent, and remedies hereinafter set forththe Additional Rent and any other charges required to be paid by Tenant, which up to the time of such expiration or termination of this Lease Agreement or retaking of possession by Landlord, and thereafter Tenant, until the end of what would have been the term of this Lease Agreement in the absence of such expiration or termination, shall be distinctliable to Landlord for, separate and cumulative.shall pay to Landlord, as and for agreed current damages for Tenant's default:
(a) Landlord may terminate The equivalent of the amount of the Basic Rent and Additional Rent which would be payable under this Lease Agreement by giving Tenant written notice of its election to do soif this Lease Agreement were still in effect, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;less
(b) Landlord may terminate Tenant's right The net proceeds of any reletting effected pursuant to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) Landlord may enforce the provisions of this Lease and may enforce and protect the rights Paragraph 11.3 hereof after deducting all of Landlord hereunder by a suit or suits Landlord's expenses 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 remedyconnection with such reletting, including, without limitation, injunctive reliefall repossession costs, brokerage commissions, legal expenses, reasonable attorney's fees, alteration costs, and for recovery expenses of all monies due or to become due from Tenant under any preparation of the provisions Demised Premises, or any portion thereof, for such reletting. Tenant shall pay such current damages in the amount determined in accordance with the terms of this Lease.
12.3 If Paragraph 12.3, as set forth in a written statement thereof from Landlord exercises either of to Tenant (hereinafter called the remedies provided for in Sections 12.2(a) and 12.2(b"Deficiency"), Tenant shall surrender possession of and vacate to Landlord in monthly installments on the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of days on which the Premises.
12.4 If Landlord terminates Tenant's right to possess the Premises without terminating Basic Rent would have been payable under this Lease, such termination of possession shall not release Tenant, Lease Agreement if this Lease Agreement were still in whole or in part, from Tenant's obligation to pay the Rent hereunder for the full Term, as and when the same becomes due and payableeffect, and Landlord shall be entitled to recover from Tenant each monthly installment of the Deficiency as the same shall arise.
11.5 At any time after any such termination or retaking of possession, whether or not Landlord shall have the rightcollected any monthly Deficiencies as set forth in Paragraph 12.3, from time to time, Landlord shall be entitled to recover from Tenant, and Tenant shall remain liable for, all Rent and any other sums due and payable pay to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recoveron demand, as and for final damages for Tenant's default, an amount equal to the difference between excess, if any, of the then present value worth of the aggregate of the Basic Rent and Additional Rent and any other charges to be paid by Tenant hereunder for the unexpired portion of the Termterm of this Lease Agreement (assuming this Lease Agreement had not been so terminated), and the then present value worth of the then aggregate fair and reasonable fair market rent of the Demised Premises for the Premises over the same period. In the computation of present valueworth, a discount at the rate of six eight percent (68%) per annum shall be employed. If the Demised Premises, or any portion thereof, be relet by Landlord for the unexpired term of this Lease Agreement, or any part thereof, before presentation of proof of such damages to any court, commission or tribunal, the amount of rent reserved upon such reletting shall, prima facie, be the fair and reasonable fair market rent for the part or the whole of the Demised Premises so relet during the term of the reletting. Nothing herein contained or contained in Paragraph 12.3 shall limit or prejudice the right of Landlord to prove for and obtain, as damages by reason of such expiration or termination, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, such damages are to be proved, whether or not such amount be greater, equal to or less than the amount of the excess referred to above.
11.6 No failure by Landlord or by Tenant to insist upon the performance of any of the terms of this Lease Agreement or to exercise any right or remedy consequent upon a breach thereof, and no acceptance by Landlord of full or partial rent from Tenant or any third party during the continuance of any such breach, shall constitute a waiver of any such breach or of any of the terms of this Lease Agreement. None of the terms of this Lease Agreement to be kept, observed or performed by Landlord or by Tenant, and no breach thereof, shall be waived, altered or modified except by a written instrument executed by Landlord and/or by Tenant, as the case may be. No waiver of any breach shall affect or alter this Lease Agreement, but each of the terms of this Lease Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach of this Lease Agreement. No waiver of any default of Tenant herein shall be implied from any omission by Landlord to take any action on account of such default, if such default persists or is repeated and no express waiver shall affect any default other than the default specified in the express waiver and that only for the time and to the extent therein stated. One or more waivers by Landlord shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
11.7 In the event of any breach of threatened breach by Tenant of any of the terms contained in this Lease Agreement, Landlord shall be entitled to enjoin such breach or threatened breach and shall have the right to invoke any right or remedy allowed at law or in equity or by statute or otherwise as though entry, reentry, summary proceedings and other remedies were not provided for in this Lease Agreement. Each remedy or right of Landlord provided for in this Lease Agreement shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease Agreement, or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or the beginning of the exercise by Landlord of any one or more of such rights or remedies shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies.
11.8 If, during the term of this Lease Agreement, (i) Tenant shall make an assignment for the benefit of creditors, (ii) a voluntary petition be filed by Tenant under any law having for its purpose the adjudication of Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to an involuntary petition in bankruptcy, (iii) a receiver be appointed for the property of Tenant, or (iv) any department of the state or federal government, or any officer thereof duly authorized, shall take possession of the business or property of Tenant, the occurrence of any such contingency shall be deemed a breach of this Lease Agreement and this Lease Agreement shall, ipso facto upon the happening of any of said contingencies, be terminated and the same shall expire as fully and completely as if the day of the happening of such contingency were the date herein specifically fixed for the expiration of the term, and Tenant will then quit and surrender the Demised Premises, but Tenant shall remain liable as hereinafter provided. Notwithstanding other provisions of this Lease Agreement, or any present or future law, Landlord shall be entitled to recover from Tenant or Tenant's estate (in lieu of the equivalent of the amount of all rent and other charges unpaid at the date of such termination) as damages for loss of the bargain and not as a penalty, an aggregate sum which at the time of such termination represents the excess of the then present worth of the aggregate of the Basic Rent and Additional Rent and any other charges payable by Tenant hereunder that would have accrued for the balance of the term of this Lease Agreement (assuming this Lease Agreement had not been so terminated), over the then present worth of the aggregate fair market rent of the Demised Premises for the balance of such period, unless any statute or rule of law covering the proceedings in which such damages are to be proved shall limit the amount of such claim capable of being so proved, in which case Landlord shall be entitled to prove as and for liquidated damages by reason of such breach and termination of this Lease Agreement the maximum amount which may be allowed by or under any such statute or rule of law without prejudice to any rights of Landlord against any guarantor of Tenant's obligations herein. In the computation of present worth, a discount rate of eight percent (8%) per annum shall be employed. Nothing contained herein shall limit or prejudice Landlord's right to prove and obtain as liquidated damages arising out of such breach and termination the maximum amount allowed by any such statute or rule of law which may govern the proceedings in which such damages are to be proved, whether or not such amount be greater than, equal to, or less than the amount of the excess of the present value of the rent and other charges required herein over the present value of the fair market rents referred to above. Specified remedies to which Landlord may resort under the terms of this Paragraph 11.8 are cumulative and are not intended to be exclusive of any other remedies or means of redress to which Landlord may be lawfully entitled.
11.9 Tenant hereby expressly waives, so far as permitted by law, any and all right of redemption or reentry or repossession or to revive the validity and existence of this Lease Agreement in the event that Tenant shall be dispossessed by a judgment or by order of any court having jurisdiction over the Demised Premises or the interpretation of this Lease Agreement or in case of entry, reentry or repossession by Landlord or in case of any expiration or termination of this Lease Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Renaissance Entertainment Corp)
DEFAULTS OF TENANT. 12.1 The occurrence of 11.1 If any one or more of the following events shall constitute an (in this Article sometimes called "Event Events of Default") shall happen:
(a) If default shall be made in the due and punctual payment of any Basic Rent and such default shall continue for a period of fourteen (14) days;
(b) If a default shall be made in the due and punctual payment of any Additional Rent payable under this Lease Agreement or in the payment of any other amount obligation to be paid by Tenant to LandlordTenant, when and as the same shall become due and payable, and such default shall continue for a period of fifteen fourteen (1514) days after Tenant's receipt of written notice thereof from Landlord; orgiven by Landlord to Tenant;
(bc) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this LeaseLease Agreement, other than as those referred to in subsection Subparagraphs (a) and (b) of this Section 12.1Paragraph 11.1, and such default shall continue for a period of thirty fifteen (3015) days after Tenant's receipt the mailing of written notice thereof given by LandlordLandlord to Tenant, or in the case of such longer period as is reasonable to cure said default, if said a default or contingency which cannot, not with due diligence and in good faith, faith be cured within said thirty fifteen (3015) days, provided that and Tenant fails to proceed promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 If an Event , it being intended that in connection with a default not susceptible of Default occursbeing cured with due diligence and in good faith within fifteen (15) days, Landlord shall have that the rights and remedies hereinafter set forth, time allowed Tenant within which to cure the same shall be distinct, separate and cumulative.
(a) Landlord extended for such period as may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) 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 be necessary for the specific performance of any covenant or agreement contained hereincuring thereof promptly with due diligence and in good faith; then, and for the enforcement of any other appropriate legal or equitable remedy, including, without limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and 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 due and payable to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such caseevent, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after thereafter during the application of the proceeds continuance of any such re-letting. In no event Event of Default, may give written notice to Tenant specifying such Event of Default or Events of Default and stating that this Lease Agreement and the terms hereby demised shall Landlord be entitled to collect Rent expire and terminate on the date specified in such notice, and upon the date specified in such notice this Lease Agreement and the terms hereby demised, and all rights of Tenant under this Lease Agreement shall terminate, or other charges from Tenant prior in the alternative or in addition to the date foregoing remedy, Landlord may assert and have the same is due and payable under benefit of any other remedy allowed herein, at law, or in equity, including the terms right to regain possession of the Demised Premises.
11.2 Upon any expiration or termination of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereofAgreement, Landlord Tenant shall be entitled to recover, as quit and for final damages for Tenant's default, an amount equal to peaceably surrender the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the TermDemised Premises, and all portions thereof, to Landlord, and Landlord, upon or at any time after any such expiration or termination, may, without further notice, enter and reenter the then present value Demised Premises, and all portions thereof, and possess and repossess itself thereof, by force, summary proceeding, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises, and all portions thereof, and may have, hold and enjoy the Demised Premises and the right to receive all rental and other income of and from the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employedsame.
Appears in 1 contract
DEFAULTS OF TENANT. 12.1 1. If
(a) Tenant shall fail to pay the rental or other charges due hereunder within five (5) days after the same shall be due, or (b) Tenants shall fail to perform any of the other terms, conditions or covenants of this Lease to be performed or observed by Tenant for more than ten (10) days after notice of such default has been given to Tenant, or (c) Tenant shall vacate the Leased Premises or abandon the same by failing to use and occupy the same for more than five (5) consecutive days, or (d) Tenant or any guarantor of this Lease shall be adjudged bankrupt or insolvent or shall make an assignment for the benefit of creditors, or (e) a receiver or trustee of Tenant's property or that of any guarantor of the Lease shall be appointed and such receiver or trustee, as the case may be, shall not be discharged within thirty (30) days after such appointment, or (f) an execution or attachment is levied against Tenant's property or that of any guarantor of this Lease, then in any such case, Landlord may, upon notice to Tenant, recover possession of and re-enter the Leased Premises without affecting Tenant's liability for past rent and other charges due or future rent and other charges to accrue hereunder. In the event of any such default, Landlord shall be entitled to recover from Tenant, in addition to rent and other charges equivalent to rent, all other damages sustained by Landlord on account of the breach of this Lease, including, but not limited to, the costs, expenses and attorney fees incurred by Landlord in enforcing the terms and provisions hereof and in re-entering and recovering possession of the Leased Premises and for the cost of repairs, alteration and brokerage and attorney fees connected with the reletting of the Leased Premises. Further, at the election of Landlord, Landlord shall have the right to declare this Lease terminated and cancelled, without any further rights or obligations on the part of Landlord or Tenant (other than Tenant's obligation for rent and other charges due and owing through the date of termination), so that Landlord may relet the Leased Premises without any right on the part of Tenant to any credit or payment resulting from any such reletting. In case of a default under this Lease, Landlord may, in addition to terminating this Lease, or in lieu thereof, pursue such other remedy or combination of remedies and recover such other damages for breach of tenancy and/or contract as are available at law or otherwise.
2. The occurrence rights and remedies of Landlord under this Lease shall be cumulative and the exercise of any of them shall not be exclusive of any other right or remedy provided by this Lease or allowed by law, and the waiver by Landlord of any breach of any covenant of this Lease shall be limited to the particular instance and shall not operate or be deemed to waive any future breach of the same or any other covenant on the same or any other occasion, nor operate as a waiver of Landlord's right to enforce the payment of subsequent installments of rental or any of Landlord's rights under this Lease by such remedies as may be appropriate.
3. No extension of time, forbearance, neglect or waiver on the party of Landlord with respect to any one or more of the following events shall constitute an "Event covenants, terms or conditions of Default":
(a) If default this lease, shall be made construed as a waiver of any of the other covenants, terms or conditions of this Lease, or as an estoppel against Landlord, nor shall any extension of time, forbearance or waiver on the part of Landlord in any one or more instances or particulars be construed to be a waiver or estoppel with respect to any other instance or particular covered by this Lease. After the service of a notice or the commencement of a suit or after final judgment for possession of the premises, Landlord may receive and collect any rent due and punctual apply the same as and for use and occupancy, and the payment and receipt thereof shall not waiver or affect any such notice, suit or judgment.
4. Landlord shall have the right at any time, after five (5) days notice to Tenant (or without notice in case of emergency or in case any fine, penalty, interest or cost may otherwise be imposed or incurred) to make any payment or perform any act required of Tenant under any provision of this Lease, and in exercising such right, to incur necessary and incidental costs and expense, including reasonable attorney fees. Nothing herein shall imply any obligation on the part of Landlord to make any payment or perform any act required of Tenant, and this exercise of the right to so do shall not constitute a release of any Rent obligation or in the payment a waiver of any other amount default. All payments made and all costs and expenses incurred in connection with any exercise of such right shall be reimbursed to be paid Landlord by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen within five (155) days after Tenant's receipt of written notice thereof such payment, together with interest at a rate equal to twelve percent (12%) per annum from Landlord; or
(b) If default shall be made by Tenant in keeping, observing or performing any the respective dates of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.1, and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by Landlord, or such longer period as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing making of such default with due diligence payments or the incurring of such costs and in good faith.
12.2 If an Event expenses. In the event of Default occursnon-payment thereof, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulativeit would have hereunder or by law in the case of non-payment or rent.
(a) 5. Tenant shall pay all costs, expense and reasonable attorney fees that may be incurred or paid by Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event enforcing the Term shall end covenants and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions agreements of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and 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 due and payable to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount equal to the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the Term, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employed.
Appears in 1 contract
DEFAULTS OF TENANT. 12.1 The occurrence of If any one or more of the following events shall constitute an (in this Article sometimes called "Event Events of Default") shall happen:
(a) If default shall be made in the due and punctual payment of any Basic Rent or in the payment of any other amount to be paid by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen (15) days after Tenant's receipt of written notice thereof from Landlord; orAdditional Rent
(b) If default shall be made by Tenant in keeping, observing or performing any of the terms contained in this LeaseLease Agreement, other than as those referred to in subsection Subparagraphs (a) and (c) of this Section Paragraph 12.1, which does not expose Landlord to criminal liability (it being intended that no cure period shall be provided with respect to any default which might expose Landlord to criminal liability), and such default shall continue for a period of thirty ten (3010) days after Tenant's receipt of written notice thereof given by LandlordLandlord to Tenant or in the case of such a default or contingency which cannot with due diligence and in good faith be cured within ten (10) days, or such longer period as is reasonable and Tenant fails to cure said default, if said default cannot, proceed promptly and with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing of such default with due diligence and in good faith.
12.2 If an Event , it being intended that in connection with a default which does not expose Landlord to criminal liability, not susceptible of Default occursbeing cured with due diligence and in good faith within ten (10) days, Landlord shall have that the rights and remedies hereinafter set forth, time allowed Tenant within which to cure the same shall be distinctextended for such period as may be necessary for the curing thereof promptly with due diligence and in good faith, separate but in no event shall such additional cure period exceed twenty (20) days from and cumulative.
after the expiration of the original ten (a10) Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event the Term shall end and all right, title and interest of Tenant hereunder shall expire on the date stated in such noticeday cure period;
(bc) Landlord may terminate If default shall be made by Tenant, by operation of law or otherwise, under the provisions of Article XV hereof relating to assignment, sublease, mortgage or other transfer of Tenant's right to possess the Premises without terminating interest in this Lease by giving written notice to Tenant that Tenant's right of possession shall end on Agreement or in the date stated in such notice, whereupon Tenant's right to possess the Demised Premises or any part thereof shall cease on in the date stated in such noticeincome arising therefrom; and
(cd) Landlord may enforce the provisions of this Lease and may enforce and protect the rights of Landlord hereunder If default shall be made by a suit Tenant in keeping, observing 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under performing any of the provisions terms contained in this Lease Agreement, other than those referred to in Subparagraphs (a), (b) and (c) of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to LandlordParagraph 12.1, and which exposes Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payablecriminal liability, and such default shall continue after written notice thereof given by Landlord shall have the right, from time to time, to recover from Tenant, and Tenant shall remain liable for, fails to proceed timely and promptly with all Rent due diligence and any other sums due in good faith to cure the same and payable thereafter to Landlord during prosecute the period from the date curing of such notice of termination of possession default with all due diligence, it being intended that in connection with a default which exposes Landlord to the stated end of the Term. In any such casecriminal liability that Tenant shall proceed then, Landlord shall use reasonable efforts to mitigate damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such caseevent, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time thereafter during the continuance of any such Event of Default, may give written notice to Tenant specifying such Event of Default or Events of Default and stating that this Lease Agreement and the terms hereby demised shall expire and terminate on the date specified in such notice, and upon the date specified in such notice this Lease Agreement and the terms hereby demised, and all rights of Tenant under this Lease Agreement, including all options to purchase contained therein, whether exercised or not, may, at Landlord's option terminate, or in the alternative or in addition to the foregoing remedy, Landlord may assert and have the benefit of any other remedy allowed herein, at law, or in equity, including the right to regain possession of the Demised Premises.
12.2 Upon any expiration or termination of this Lease Agreement, Tenant shall quit and peaceably surrender the Demised Premises, and all portions thereof, to Landlord, and Landlord, upon or at any time after any such expiration or termination, may, without further notice, enter upon and reenter the Demised Premises, and all portions thereof, and possess and repossess itself thereof, by force, summary proceeding, ejectment or otherwise, and may dispossess Tenant and remove Tenant and all other persons and property from the Demised Premises, and all portions thereof, and may have, hold and enjoy the Demised Premises and the right to receive all rental and other income of and from time to the same.
12.3 At any time, may ▇▇▇ and seek a judgment for any deficiencies or from time to time remaining after any such expiration or termination, Landlord may relet the application Demised Premises, or any portion thereof, in the name of Landlord or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the proceeds term of this Lease Agreement) and on such conditions (which may include concessions or free rent) as Landlord, in its sole discretion, may determine and may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Demised Premises, or any part thereof, or for any failure to collect any rent due upon any such reletting. Nothing herein contained shall be deemed to excuse Landlord from mitigating its damages as may be required by law.
12.4 No such expiration or termination of this Lease Agreement or retaking of possession shall relieve Tenant of its liabilities and obligations under this Lease Agreement (as if this Lease Agreement had not been so terminated), and such liabilities and obligations shall survive any such expiration or termination. In the event of any such re-letting. In no event termination, whether or not the Demised Premises, or any portion thereof, shall have been relet, Tenant shall pay to Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount a sum equal to the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the TermBasic Rent, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employed.the
Appears in 1 contract
DEFAULTS OF TENANT. 12.1 1. If
(a) Tenant shall fail to pay the rental or other charges due hereunder within ten (10) days after the same shall be due, or (b) Tenant shall fail to perform any of the other terms, conditions or covenants of this Lease to be performed or observed by Tenant for more than thirty (30) days after notice of such default has been given to Tenant, or (c) Tenant shall vacate the Leased Premises or abandon the same by failing to use and occupy the same for more than ten (10) consecutive days, or (d) Tenant or any guarantor of this Lease shall be adjudged bankrupt or insolvent or shall make an assignment for the benefit of creditors, or (e) a receiver or trustee of Tenant's property or that of any guarantor of this Lease shall be appointed and such receiver or trustee, as the case may be, shall not be discharged within thirty (30) days after such appointment, or (f) an execution or attachment is levied against Tenant's property or that of any guarantor of this Lease or (g) this Lease shall by operation of law devolve upon or pass to any person or persons other than Tenant without Landlord's prior written consent, then in any such case, Landlord may, upon notice to Tenant, recover possession of and re-enter the Leased Premises without affecting Tenant's liability for past rent and other charges due or future rent and other charges to accrue hereunder. In the event of any such default, Landlord shall be entitled to recover from Tenant, in addition to rent and other charges equivalent to rent, all other damages sustained by Landlord on account of the breach of this Lease, including, but not limited to, the costs, expenses and attorney fees incurred by Landlord in enforcing the terms and provisions hereof and in re-entering and recovering possession of the Leased Premises and for the cost of repairs, alterations and brokerage and attorney fees connected with the reletting of the Leased Premises. Further, at the election of Landlord, Landlord shall have the right to declare this Lease terminated and cancelled, without any further rights or obligations on the part of Landlord or Tenant (other than Tenant's obligation for rent and other charges due and owing through the date of termination), so that Landlord may relet the Leased Premises without any right on the part of Tenant to any credit or payment resulting from any such reletting. In case of a default under this Lease, Landlord may, in addition to terminating this Lease, or in lieu thereof, pursue such other remedy or combination of remedies and recover such other damages for breach of tenancy and/or contract as are available at law or otherwise.
2. The occurrence rights and remedies of Landlord under this Lease shall be cumulative and the exercise of any of them shall not be exclusive of any other right or remedy provided by this Lease or allowed by law, and the waiver by Landlord of any breach of any covenant of this Lease shall be limited to the particular instance and shall not operate or be deemed to waive any future breach of the same or any other covenant on the same or any other occasion, nor operate as a waiver of Landlord's right to enforce the payment of subsequent installments of rental or any of Landlord's rights under this Lease by such remedies as may be appropriate.
3. No extension of time, forbearance, neglect or waiver on the part of Landlord with respect to any one or more of the following events shall constitute an "Event covenants, terms or conditions of Default":
(a) If default this Lease, shall be made construed as a waiver of any of the other covenants, terms or conditions of this Lease, or as an estoppel against Landlord, nor shall any extension of time, forbearance or waiver on the part of Landlord in any one or more instances or particulars be construed to be a waiver or estoppel with respect to any other instance or particular covered by this Lease. After the service of a notice or the commencement of a suit or after final judgment for possession of the premises, Landlord may receive and collect any rent due and punctual apply the same as and for use and occupancy, and the payment and receipt thereof shall not waive or affect any such notice, suit or judgment.
4. Landlord shall have the right at any time, after ten (10) days notice to Tenant (or without notice in case of emergency or in case any fine, penalty, interest or cost may otherwise be imposed or incurred) to make any payment or perform any act required of Tenant under any provision of this Lease, and in exercising such right, to incur necessary and incidental costs and expenses, including reasonable attorney fees. Nothing herein shall imply any obligation on the part of Landlord to make any payment or perform any act required of Tenant, and this exercise of the right to so do shall not constitute a release of any Rent obligation or in the payment a waiver of any other amount default. All payments made and all costs and expenses incurred in connection with any exercise of such right shall be reimbursed to be paid Landlord by Tenant to Landlord, when and as the same shall become due and payable, and such default shall continue for a period of fifteen within ten (1510) days after Tenant's receipt of written notice thereof such payment, together with interest at a rate equal to eighteen percent (18%) per annum from Landlord; or
(b) If default shall be made by Tenant in keeping, observing or performing any the respective dates of the terms contained in this Lease, other than as referred to in subsection (a) of this Section 12.1, and such default shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof given by Landlord, or such longer period as is reasonable to cure said default, if said default cannot, with due diligence and in good faith, be cured within said thirty (30) days, provided that Tenant promptly and with due diligence and in good faith fails to commence the cure of the same within the thirty (30) day period and thereafter fails to prosecute the curing making of such default with due diligence payments or the incurring of such costs and in good faith.
12.2 If an Event expenses. In the event of Default occursnon-payment thereof, Landlord shall have the rights and remedies hereinafter set forth, which shall be distinct, separate and cumulativeit would have hereunder or by law in the case of non-payment of rent.
(a) 5. Tenant shall pay all costs, expenses and reasonable attorney fees that may be incurred or paid by Landlord may terminate this Lease by giving Tenant written notice of its election to do so, in which event enforcing the Term shall end covenants and all right, title and interest of Tenant hereunder shall expire on the date stated in such notice;
(b) Landlord may terminate Tenant's right to possess 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 Tenant's right to possess the Premises or any part thereof shall cease on the date stated in such notice; and
(c) 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 limitation, injunctive relief, and for recovery of all monies due or to become due from Tenant under any of the provisions agreements of this Lease.
12.3 If Landlord exercises either of the remedies provided for in Sections 12.2(a) and 12.2(b), Tenant shall surrender possession of and vacate the Premises and immediately deliver possession thereof to Landlord, and Landlord may, upon proper process of law, re-enter and take complete and peaceful possession of the Premises.
12.4 If Landlord terminates Tenant's right to possess 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, as and when the same becomes due and payable, and 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 due and payable to Landlord 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 damages and to re-let the Premises or any part thereof for the account of Tenant for such time (which may be for a term extending beyond the Term) and upon such terms as Landlord reasonably shall determine. Also, in any such case, Tenant shall pay the cost of Landlord's reasonable expenses of re-letting. Landlord shall collect the rents from any such re-letting and apply the same first to the payment of its unreimbursed expenses of re-letting and second to the payment of Rent herein provided to be paid by Tenant, and any excess or residue, until the expiration of the Term, shall operate only as an offsetting credit against the amount of Rent due and owing which thereafter becomes due and payable hereunder, and upon the expiration of the Term, the total aggregate amount of all such excesses which Landlord has then accumulated, if any, shall be paid to Tenant. No such re-entry, repossession or re-letting 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, and Landlord, at any time and from time to time, may ▇▇▇ and seek a judgment for any deficiencies from time to time remaining after the application of the proceeds of any such re-letting. In no event shall Landlord be entitled to collect Rent or other charges from Tenant prior to the date the same is due and payable under the terms of this Lease.
12.5 If Landlord terminates this Lease pursuant to Section 12.2(a) hereof, Landlord shall be entitled to recover, as and for final damages for Tenant's default, an amount equal to the difference between the present value of the aggregate Rent to be paid by Tenant hereunder for the unexpired portion of the Term, and the then present value of the aggregate reasonable fair market rent for the Premises over the same period. In the computation of present value, a discount rate of six percent (6%) per annum shall be employed.
Appears in 1 contract
Sources: Lease Agreement (Officeland Inc)