Defaults Remedies. 8.1 The occurrence of any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trust: (a) Any failure to pay any principal or interest or any other part of the Obligation when the same shall become due and payable, subject to the expiration of any applicable cure period provided in the Obligation. (b) Any failure or neglect to perform or observe any of the terms, provisions, or covenants of this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured within ten (10) days after such payment or performance is due and Holder has provided Maker written notice of such default. (c) Any warranty, representation or statement contained in this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, that shall be or shall prove to have been false when made or furnished. (d) The filing by Trustor, any endorser of the Note, or any guarantor of the Obligation (or against Trustor or such endorser or guarantor to which Trustor or such endorser or guarantor acquiesces or which is not dismissed within forty-five (45) days after the filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such laws with respect to Trustor or such endorser or guarantor; or the appointment of a receiver, trustee, custodian or conservator of all or any part of the assets of Trustor or such endorser or guarantor. (e) The insolvency of Trustor, any endorser of the Note or any guarantor of the Obligation; or the execution by Trustor or such endorser or guarantor of an assignment for the benefit of creditors; or the convening by Trustor or such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor or such endorser or guarantor to pay its debts as they mature; or if Trustor or such endorser or guarantor is generally not paying its debts as they mature. Purchase and Sale Agreement and Joint Escrow Instructions (f) The admission in writing by Trustor, any endorser of the Note or any guarantor of the Obligation that it is unable to pay its debts as they mature or that it is generally not paying its debts as they mature. (g) The death or incapacity of Trustor, any endorser of the Note or any guarantor of the Obligation, if an individual, or the liquidation, termination or dissolution of Trustor or any such endorser or guarantor, if a corporation, partnership or joint venture. (h) Any attachment, garnishment, levy or execution upon, or judicial seizure of, any portion of the Trust Property. (i) The existence or the filing of any lien or encumbrance against the Trust Property other than any Permitted Exceptions which lien is not discharged within thirty (30) days after Trustor has actual knowledge of the filing. (j) The institution of any legal action or proceedings to enforce a mortgage, deed of trust or other lien upon the Trust Property pursuant to this Deed of Trust. (k) The occurrence of any event of default under the Note, or any other document or instrument executed or delivered in connection with the Obligation that is not cured within the applicable cure period, notice having been given.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Luna Azul Development Fund, LLC)
Defaults Remedies. 8.1 The occurrence of If any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trustoccur:
(a) Any failure to pay any principal or interest payment or any other part of the Obligation when the same shall become due and payable, subject thereof to be made by Tenant to Landlord pursuant to the expiration terms of this Lease shall have become overdue for a period in excess of thirty (30) days, such grace period limited to no more than two (2) occurrences in any applicable cure period provided in the Obligation.twelve (12) month period;
(b) Any failure Tenant violates or neglect fails to perform or observe comply with any covenant, agreement or condition herein contained, and such failure continues for a period of the terms, provisions, or covenants of this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured within ten thirty (1030) days after such payment or performance is due and Holder has provided Maker written notice Landlord notifies Tenant of such default.failure;
(c) Any warranty, representation Tenant abandons the Premises or statement contained removes or attempts to remove Tenant's property therefrom other than in this Deed the ordinary course of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered business without having first paid to Landlord in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, full all rent and charges that shall be or shall prove to may have been false when made or furnished.become due as well as all which will become due thereafter; or
(d) The filing by Trustor, any endorser of An involuntary case under the Note, federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any guarantor or surety of Tenant's obligations under this Lease ("Guarantor"), or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the Obligation appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or against Trustor similar official) of Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or seeking the winding-up or liquidation of Tenant's or a Guarantor's affairs and such endorser involuntary case or guarantor to which Trustor or such endorser or guarantor acquiesces or which petition is not dismissed within forty-five sixty (4560) days after the filing thereof) , of any proceeding under the federal bankruptcy laws now if Tenant or hereafter existing a Guarantor commences a voluntary case or any other similar statute now institutes proceedings to be adjudicated as bankrupt or hereafter in effect; insolvent or consents to the entry of an order for relief under such the federal bankruptcy laws with respect as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to Trustor or such endorser or guarantor; or the appointment of or taking possession by a receiverreceiver or liquidator or assignee, trustee, custodian custodian, sequestrator (or conservator other similar official) of all Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or if Tenant or any part of the assets of Trustor or such endorser or guarantor.
(e) The insolvency of Trustor, Guarantor makes any endorser of the Note or any guarantor of the Obligation; or the execution by Trustor or such endorser or guarantor of an assignment for the benefit of creditors; creditors or the convening by Trustor admits in writing its inability to pay its debts generally as they become due or such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor or such endorser or guarantor fails to generally pay its debts as they mature; become due or if Trustor Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, ▇▇▇▇▇▇▇▇ or such endorser constable or guarantor is generally not paying it Tenant or its debts as they mature. Purchase and Sale Agreement and Joint Escrow Instructions
(f) The admission stockholders or Board of Directors or any committee thereof takes any action in writing by Trustorcontemplation, preparation or furtherance of or for any endorser of the Note foregoing, or, if Tenant or any guarantor of the Obligation that it Guarantor is unable to pay its debts as they mature a corporation and is dissolved or that it is generally not paying its debts as they mature.
(g) The death or incapacity of Trustorliquidated. Then, any endorser of the Note or any guarantor of the Obligation, if an individual, or the liquidation, termination or dissolution of Trustor or and in any such endorser or guarantorevent, if a corporation, partnership or joint venture.
(h) Any attachment, garnishment, levy or execution upon, or judicial seizure of, any portion at the sole option of the Trust Property.Landlord,
(i) The existence or the filing of any lien or encumbrance against the Trust Property other than any Permitted Exceptions which lien is not discharged within thirty (30) days after Trustor has actual knowledge then present value of the filing.
(j) The institution whole balance of any legal action rent and all other sums payable hereunder for the entire balance of the term of this Lease, herein reserved or proceedings agreed to enforce a mortgage, deed of trust or other lien upon the Trust Property pursuant to this Deed of Trust.
(k) The occurrence of any event of default under the Notebe paid by Tenant, or any part of such rent, charges and other document sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to landlord's other remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or instrument executed which in the ordinary course would be likely to result therefrom including, without limitation, the cost of repairing the Premises and reasonable attorneys fees; plus
(E) at Landlord's election, such other amounts in addition to or delivered in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the "present value at the time of judgment" shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's sole discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of the Lease, of rent and all other sums payable under this lease, plus the cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises or failure to collect the rent or other sums from any reletting. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant's and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing "the then present value of the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the Obligation that is availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not cured within be obligated to do so), cure any default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for all costs incurred by Landlord in curing such default, including, without limitation, reasonable attorneys' fees and other legal expenses, together with interest thereon at the applicable cure periodLease Interest Rate, notice having been given.which costs and interest thereon shall be deemed additional rent hereunder. Also in addition to, and not in lieu of any of the foregoing rights granted to Landlord:
Appears in 1 contract
Sources: Lease Agreement (Traffic.com, Inc.)
Defaults Remedies. 8.1 The occurrence of any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trust:
(a) Any failure to If Tenant does not pay in full when due and without demand any principal and all installments of annual minimum rent or interest additional rent or any other part of the Obligation when the same shall become due and payable, subject to the expiration of any applicable cure period provided in the Obligation.charges or payments whether or not herein included as rent; or
(b) Any failure If Tenant violates or neglect fails to perform or observe otherwise breaks any of the termsagreement, provisionsterm, covenant or covenants of this Deed of Trust, the Note, the Loan Agreement condition herein contained or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured within ten (10) days after such payment or performance is due and Holder has provided Maker written notice of such default.obligation herein imposed upon Tenant; or
(c) Any warrantyIf Tenant abandons the Premises or removes or attempts to remove Tenant's goods or property therefrom other than in the ordinary course of business without having first paid to Landlord in full all minimum annual rent, representation or statement contained in this Deed of Trust, the Note, the Loan Agreement or any additional rent and other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, charges that shall be or shall prove to may have been false when made or furnished.become due as well as all which will become due thereafter; or
(d) The filing by TrustorIf Tenant becomes insolvent or bankrupt in any sense or makes an assignment for the benefit of creditors for any such purpose, or files a petition in bankruptcy or reorganization or for any endorser arrangement with creditors under any federal or state act, or files a bill in equity or otherwise initiates proceedings in any court for t▇▇ ▇ppointment of a receiver, trustee, liquidator, custodian, conservator or similar official for any of Tenant's assets, or if any of the Notereal or personal property of Tenant shall be levied upon by any sheriff, marshal, or constable; or
(e) If a petition in bankruptcy or for reorganization or for an arrangement with creditors under any guarantor federal or state act is filed against Tenant or if a bill in equity or other proceeding is filed in any court by any cred▇▇▇▇ of the Obligation (or against Trustor or such endorser or guarantor to which Trustor or such endorser or guarantor acquiesces or which is not dismissed within forty-five (45) days after the filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order Tenant for relief under such laws with respect to Trustor or such endorser or guarantor; or the appointment of a receiver, trustee, custodian liquidator, custodian, conservator or conservator similar official for any of all Tenant's assets; Then Landlord shall have the following rights:
(1) To accelerate the whole or any part of the assets rent for the entire unexpired balance of Trustor or such endorser or guarantor.the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant; or
(e2) The insolvency of TrustorTo re-enter the Premises and remove all persons and all or any property therefrom, either by summary dispossess proceedings or by any endorser suitable action or proceeding at law, and repossess and enjoy the Premises, together with all additions, alterations and improvements. Upon recovering possession of the Note Premises by reason of or based upon or arising out of a default on the part of Tenant, Landlord may, at Landlord's option, either terminate this Lease or make such alterations and repairs as may be necessary in order to relet the Premises and may relet the Premises or any guarantor part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the Obligationterm of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's discretion seem best; or upon each such reletting all rents received by Landlord from such reletting shall be applied: first, to the execution payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorney's fees and all costs of such alterations and repairs; third, to the payment of rent due and unpaid hereunder; and the residue, if any, shall be held by Trustor or Landlord and applied in payment of future rent as it may become due and payable hereunder. If such endorser or guarantor rentals received from such reletting during any month shall be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. No waiver by Landlord of an assignment any breach by Tenant herein shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for the benefit any breach by Tenant be a waiver by Landlord of creditors; or the convening by Trustor or any rights and remedies with respect to such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor or such endorser or guarantor to pay its debts as they mature; or if Trustor or such endorser or guarantor is generally subsequent breach. Landlord's rights hereunder are not paying its debts as they mature. Purchase and Sale Agreement and Joint Escrow Instructions
(f) The admission in writing by Trustor, any endorser of the Note or any guarantor of the Obligation that it is unable to pay its debts as they mature or that it is generally not paying its debts as they mature.
(g) The death or incapacity of Trustor, any endorser of the Note or any guarantor of the Obligation, if an individual, or the liquidation, termination or dissolution of Trustor or any such endorser or guarantor, if a corporation, partnership or joint venture.
(h) Any attachment, garnishment, levy or execution upon, or judicial seizure of, any portion of the Trust Property.
(i) The existence or the filing exclusive of any lien other right provided hereunder or encumbrance against the Trust Property other than any Permitted Exceptions which lien is not discharged within thirty (30) days after Trustor has actual knowledge of the filingby law.
(j) The institution of any legal action or proceedings to enforce a mortgage, deed of trust or other lien upon the Trust Property pursuant to this Deed of Trust.
(k) The occurrence of any event of default under the Note, or any other document or instrument executed or delivered in connection with the Obligation that is not cured within the applicable cure period, notice having been given.
Appears in 1 contract
Defaults Remedies. 8.1 The occurrence of any one or more of the following events or conditions shall will constitute an "Event of a “Default" ” under this Deed of TrustNote:
(a) Any failure to pay The nonpayment of any principal or interest or any other part of the Obligation principal under this Note when the same shall become due and payabledue, subject to the expiration of any applicable cure period provided in the Obligation.whether at maturity, by acceleration, or otherwise;
(b) Any failure or neglect to perform or observe The filing by Borrower of a petition seeking relief for Borrower under any of the termsbankruptcy, provisionsinsolvency, or covenants of this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured within ten (10) days after such payment or performance is due and Holder has provided Maker written notice of such default.debtor relief law;
(c) Any warranty, representation The filing by any creditor of Borrower of a petition seeking the involuntary bankruptcy or statement contained in this Deed insolvency of Trust, Borrower that is not dismissed or discharged within 60 days from the Note, date of filing the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, that shall be or shall prove to have been false when made or furnished.petition;
(d) The entry of a judgment against Borrower for the payment of money in an amount exceeding U.S. $50,000 that is not paid, stayed, or discharged within the time allowed by law for filing by Trustor, any endorser a notice of appeal of the Note, or any guarantor of the Obligation (or against Trustor or such endorser or guarantor to which Trustor or such endorser or guarantor acquiesces or which is not dismissed within forty-five (45) days after the filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such laws with respect to Trustor or such endorser or guarantor; or the appointment of a receiver, trustee, custodian or conservator of all or any part of the assets of Trustor or such endorser or guarantor.judgment;
(e) The insolvency of Trustor, any endorser of the Note or any guarantor of the Obligation; or the execution by Trustor or such endorser or guarantor of an Borrower (i) makes a general assignment for the benefit of creditors; or the convening by Trustor or such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of (ii) admits in writing its debts; or the failure of Trustor or such endorser or guarantor inability to pay its debts generally as they mature; , (iii) seeks, consents, or if Trustor acquiesces to the appointment of a trustee, receiver, liquidator, or such endorser fiscal agent for all or guarantor a substantial part of its property, or (iv) suffers the appointment, without its consent or acquiescence, of a trustee, receiver, liquidator, or fiscal agent for all or a substantial part of its property, unless the appointment is generally not paying its debts as they mature. Purchase and Sale Agreement and Joint Escrow Instructionsvacated within 60 days after it becomes effective;
(f) The admission Any representation or warranty made by Borrower in writing by Trustor, this Note is incorrect in any endorser of the Note or any guarantor of the Obligation that it is unable to pay its debts as they mature or that it is generally not paying its debts as they mature.material respect;
(g) The death Borrower fails to observe or incapacity of Trustorperform any covenant, any endorser of the condition, or agreement contained in this Note or any guarantor of the Obligation, if an individual, or Credit Documents and the liquidation, termination or dissolution of Trustor or any such endorser or guarantor, if a corporation, partnership or joint venture.failure continues for 30 days after written notice to Borrower;
(h) Any attachmentBorrower fails to pay when due any of its indebtedness (other than debt arising under this Note but including any other liability that it owes to Lender) or any interest or premium thereon when due (whether by scheduled maturity, garnishmentacceleration, levy or execution upondemand, or judicial seizure ofotherwise) and the failure continues after the applicable grace period, any portion of if any, specified in the Trust Property.agreement or instrument relating to the indebtedness;
(i) The existence One or the filing of any lien more orders or encumbrance judgments have been entered against the Trust Property other than any Permitted Exceptions which lien is Borrower and all those orders or judgments have not discharged been vacated, discharged, stayed, or bonded pending appeal within thirty (30) 30 days after Trustor has actual knowledge of the filing.from their entry;
(j) The institution issuance of any a writ of levy, distraint, execution, attachment, garnishment, or similar legal action process (whether or proceedings to enforce a mortgage, deed of trust or other lien upon the Trust Property not pursuant to a final judgment) against Borrower or any guarantor of this Deed Note or any of Trust.their respective property in connection with a claim for the payment of money or damages in an amount exceeding $50,000;
(k) The occurrence sequestration or assumption of custody by a court having jurisdiction of all or a substantial part of the property of Borrower or any guarantor of this Note, unless the custody or sequestration is terminated within 30 days after it is effective;
(l) An attachment after judgment occurs on all or a substantial part of the property of Borrower or any guarantor of this Note, unless the resulting lien is discharged, or execution on the lien is stayed, within 15 days after it is issued or perfected;
(m) A revocation or attempted revocation of any event guaranty of default under the this Note;
(n) The violation of any law, or any other document act or instrument executed omission, by Borrower or delivered any guarantor of this Note that results in connection with the Obligation imposition of a lien by operation of law on any of its property that is not cured discharged within 30 days after it attaches, unless the lien relates to a claim for payment of money or damages in an amount less than $50,000;
(o) A sale or transfer or all or a majority of the assets (measured by fair value) or the outstanding voting common stock of Borrower pursuant to a sale, lease, merger, spin-off, foreclosure, dissolution, bankruptcy, liquidation, consolidation, tender offer, share exchange, reorganization, recapitalization, or other transaction; or
(p) A breach or default by Borrower or any guarantor of this Note of any lease, contract, mortgage, agreement, instrument, promissory note, or other obligation or commitment to which it is a party or with respect to which it is otherwise liable that causes, with or without notice to Borrower or the guarantor, acceleration of the date when any liability, obligation, or indebtedness in the amount of $50,000 or more becomes due and payable. If a “Default” occurs, the entire unpaid principal amount of this Note will become immediately due and payable without further demand or notice or presentment by the holder of this Note, and the holder of this Note may proceed to protect his rights in the manner provided by applicable cure periodlaw. The rights, notice having been givenremedies, powers, and privileges provided to Lender are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.
Appears in 1 contract
Sources: Equity Incentive Plan (Evolution Development Group, Inc.)
Defaults Remedies. 8.1 The occurrence of If any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trustoccur:
(a) Any failure to Tenant does not pay in full when due any principal or interest and all installments of rent or any other part of the Obligation when the same shall become due and payable, subject to the expiration of any applicable cure period provided in the Obligation.charge or payment whether or not herein included as rent;
(b) Any failure Tenant violates or neglect fails to perform or observe comply with any of the termscovenant, provisions, agreement or covenants of this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured within ten (10) days after such payment or performance is due and Holder has provided Maker written notice of such default.condition herein contained ;
(c) Any warranty, representation An involuntary case under the federal bankruptcy law as now or statement contained in this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, that shall be or shall prove to have been false when made or furnished.
(d) The filing by Trustor, any endorser of the Note, hereafter constituted is commenced against Tenant or any guarantor or surety of Tenant's obligations under this Lease ("Guarantor"), or under any other applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the Obligation appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or against Trustor similar official) of Tenant or a Guarantor or any substantial part of Tenant's or a Guarantor's property, or seeking the winding-up or liquidation of Tenant's or a Guarantor's affairs and such endorser involuntary case or guarantor to which Trustor or such endorser or guarantor acquiesces or which petition is not dismissed within forty-five sixty (4560) days after the filing thereof) of any proceeding under the federal bankruptcy laws now , or hereafter existing if Tenant or any other similar statute now a Guarantor commences a voluntary case or hereafter in effect; institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under such the federal bankruptcy laws with respect as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to Trustor or such endorser or guarantor; or the appointment of or taking possession by a receiverreceiver or liquidator or assignee, trustee, custodian custodian, sequestrator (or conservator other similar official) of all Tenant or a Guarantor or of any substantial part of Tenant's or a Guarantor's property, or if Tenant or any part of the assets of Trustor or such endorser or guarantor.
(e) The insolvency of Trustor, Guarantor makes any endorser of the Note or any guarantor of the Obligation; or the execution by Trustor or such endorser or guarantor of an assignment for the benefit of creditors; creditors or the convening by Trustor admits in writing its inability to pay its debts generally as they become due or such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor or such endorser or guarantor fails to generally pay its debts as they mature; become due or if Trustor Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, ▇▇▇▇▇▇▇▇ or such endorser constable or guarantor is generally not paying if Tenant or its debts as they mature. Purchase and Sale Agreement and Joint Escrow Instructions
(f) The admission stockholders or Board of Directors or any committee thereof takes any action in writing by Trustorcontemplation, preparation or furtherance of or for any endorser of the Note foregoing, or, if Tenant or any guarantor of the Obligation that it Guarantor is unable to pay its debts as they mature a corporation and is dissolved or that it is generally not paying its debts as they mature.
(g) The death or incapacity of Trustorliquidated. Then, any endorser of the Note or any guarantor of the Obligation, if an individual, or the liquidation, termination or dissolution of Trustor or and in any such endorser or guarantorevent, if a corporation, partnership or joint venture.
(h) Any attachment, garnishment, levy or execution upon, or judicial seizure of, any portion at the sole option of the Trust Property.Landlord,
(i) The existence or whole balance of rent and all other sums payable hereunder for the filing of any lien or encumbrance against the Trust Property other than any Permitted Exceptions which lien is not discharged within thirty (30) days after Trustor has actual knowledge entire balance of the filing.
(j) The institution term of any legal action this Lease, herein reserved or proceedings agreed to enforce a mortgage, deed of trust or other lien upon the Trust Property pursuant to this Deed of Trust.
(k) The occurrence of any event of default under the Notebe paid by Tenant, or any part of such rent, charges and other document sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to Landlord's other remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at a rate per year two percent (2%) above the prime rate (the "Default Rate"); plus
(B) the present value (as discounted at the rate of seven percent per annum) at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of seven percent per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other reasonable amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or instrument executed which in the ordinary course would be likely to result therefrom including, without limitation, the cost of repairing the Premises and reasonable attorneys fees; plus
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings, force or delivered otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable or relet the Premises or any part or parts thereof, either in connection with Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the Obligation period which otherwise would have constituted the balance of the term of this Lease and at market rent or rents and upon such other reasonable terms and conditions as may seem advisable and to such person or persons as may in Landlord's reasonable discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of this Lease, of rent and all other sums payable under this Lease, plus the reasonable cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose of reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that is Landlord may file suit to recover any rent and other sums falling due under the terms of this Article 20 from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option, store it in a public warehouse or elsewhere at the reasonable cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. For the purposes of computing "the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not cured within been terminated) after termination until the applicable cure perioddate of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 19, notice having the amount of additional rent which would have been given.due per year under this Lease shall be such amount as Landlord shall reasonably estimate (based on the history of such expenses during Tenant's occupancy) to be the per annum rate of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent (7%) per annum
Appears in 1 contract
Sources: Lease Agreement (Animas Corp)
Defaults Remedies. 8.1 The occurrence of If any of the following events or conditions shall constitute an "Event of Default" under this Deed of Trustoccur:
(a) Any failure to Tenant does not pay in full when due any principal and all installments of rent (whether Fixed Rent or interest additional rent) or any other part of the Obligation when the same shall become due and payable, subject to the expiration of any applicable cure period provided in the Obligation.
(b) Any failure charge or neglect to perform payment whether or observe any of the terms, provisions, or covenants of this Deed of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered in connection with the Obligation, which failure is not cured herein included as rent within ten (10) days after such payment or performance is due and Holder has provided Maker written notice of such default.amount becoming due;
(b) Tenant violates or fails to perform or comply with any covenant, agreement or condition herein contained;
(c) Any warranty, representation Tenant abandons the Premises or statement contained removes or attempts to remove Tenant's property therefrom other than in this Deed the ordinary course of Trust, the Note, the Loan Agreement or any other document or instrument executed or delivered business without having first paid to Landlord in connection with the Obligation, or made or furnished to Beneficiary by or on behalf of Trustor, full all rent and charges that shall be or shall prove to may have been false when made or furnished.become due as well as all which will become due thereafter; or
(d) The filing by Trustor, any endorser of An involuntary case under the Note, federal bankruptcy law as now or hereafter constituted is commenced against Tenant or any guarantor or surety of Tenant's obligations under this Lease ("Guarantor"), or under any other applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, or there is filed against Tenant or a Guarantor a petition seeking the Obligation appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or against Trustor similar official) of Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or seeking the winding-up or liquidation of Tenant's or a Guarantor's affairs and such endorser involuntary case or guarantor to which Trustor or such endorser or guarantor acquiesces or which petition is not dismissed within forty-five sixty (4560) days after the filing thereof) , of any proceeding under the federal bankruptcy laws now if Tenant or hereafter existing a Guarantor commences a voluntary case or any other similar statute now institutes proceedings to be adjudicated as bankrupt or hereafter in effect; insolvent or consents to the entry of an order for relief under such the federal bankruptcy laws with respect as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to Trustor or such endorser or guarantor; or the appointment of or taking possession by a receiverreceiver or liquidator or assignee, trustee, custodian custodian, sequestrator (or conservator other similar official) of all Tenant or a Guarantor of any substantial part of Tenant's or a Guarantor's property, or if Tenant or any part of the assets of Trustor or such endorser or guarantor.
(e) The insolvency of Trustor, Guarantor makes any endorser of the Note or any guarantor of the Obligation; or the execution by Trustor or such endorser or guarantor of an assignment for the benefit of creditors; creditors or the convening by Trustor admits in writing its inability to pay its debts generally as they become due or such endorser or guarantor of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Trustor or such endorser or guarantor fails to generally pay its debts as they mature; become due or if Trustor Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, ▇▇▇▇▇▇▇▇ or such endorser constable or guarantor is generally not paying Tenant or its debts as they mature. Purchase and Sale Agreement and Joint Escrow Instructions
(f) The admission stockholders or Board of Directors or any committee thereof takes any action in writing by Trustorcontemplation, preparation or furtherance of or for any endorser of the Note foregoing, or, if Tenant or any guarantor of the Obligation that it Guarantor is unable to pay its debts as they mature a corporation and is dissolved or that it is generally not paying its debts as they mature.
(g) The death or incapacity of Trustorliquidated, any endorser of the Note or any guarantor of the ObligationThen, if an individual, or the liquidation, termination or dissolution of Trustor or and in any such endorser or guarantorevent, if a corporation, partnership or joint venture.
(h) Any attachment, garnishment, levy or execution upon, or judicial seizure of, any portion at the sole option of the Trust Property.Landlord,
(i) The existence or whole balance of rent and all other sums payable hereunder for the filing of any lien or encumbrance against the Trust Property other than any Permitted Exceptions which lien is not discharged within thirty (30) days after Trustor has actual knowledge entire balance of the filing.
(j) The institution term of any legal action this Lease, herein reserved or proceedings agreed to enforce a mortgage, deed of trust or other lien upon the Trust Property pursuant to this Deed of Trust.
(k) The occurrence of any event of default under the Notebe paid by Tenant, or any part of such rent, charges and other document sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of this Lease said balance of rent, charges and other sums and expenses were on that date payable in advance; and/or
(ii) Landlord may terminate this Lease by written notice to Tenant. If Landlord elects to terminate this Lease, Landlord, in addition to Landlord's other remedies, may recover from Tenant a judgment for damages equal to the sum of the following:
(A) the unpaid rent and other sums which became due up to the time of such termination plus interest from the dates such rent and other sums were due to the date of the judgment at the Lease Interest Rate; plus
(B) the present value at the time of judgment of the amount by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment exceeds the amount of loss of such rental and other sums Tenant proves could have been reasonably avoided; plus
(C) the amount (as discounted at the rate of four percent (4%) per annum) by which the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment exceeds the amount of loss of such rental and other sums that Tenant proves could have been reasonably avoided; plus
(D) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or instrument executed which in the ordinary course would be likely to result therefrom including, without limitation, the cost of repairing the Premises and reasonable attorneys fees; plus
(E) at Landlord's election, such other amounts in addition to or delivered in lieu of the foregoing as may be permitted by applicable law. As used in the foregoing clause (B), the "present value at the time of judgment" shall be computed by adding to the rent past due or which would have become due interest at the Lease Interest Rate from the dates such rent was or would have become due to the date of the judgment; and/or
(iii) Landlord may terminate Tenant's right of possession and may reenter and repossess the Premises by legal proceedings, force or otherwise, without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs, as Landlord may deem then necessary or advisable and relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which otherwise would have constituted the balance of the term of this Lease and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's sole discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss, for such period as is or would have been the balance of the term of the Lease, of rent and all other sums payable under this lease, plus the reasonable cost and expenses of reletting and of redecorating, remodeling or making repairs and alterations to the Premises for the purpose or reletting, the amount of such liability to be computed monthly and to be paid by Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the Premises provided, however, Landlord shall apply the rent or other sums received from a reletting against the sums due from Tenant under this Article 21. Tenant shall not be entitled to any rents or other sums received by Landlord in excess of those provided for in this Lease. Tenant agrees that Landlord may file suit to recover any rent and other sums falling due under the terms of this Article from time to time and that no suit or recovery of any amount due hereunder to Landlord shall be any defense to any subsequent action brought for any other amount due hereunder to Landlord. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord, Tenant's and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of rent or any other sum due or to become due hereunder. Notwithstanding any reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for Tenant's previous breach. Whenever Landlord shall have the right to reenter the Premises, it shall have the right to remove all persons and property from the Premises and either treat such property as abandoned or at Landlord's option store it in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without service of notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby. Tenant waives the right to any notice to remove as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar or successor provision of law. For the purposes of computing "the whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease," "the unpaid rent and other sums which would have become due (had this Lease not been terminated) after termination until the date of the judgment" and "the unpaid rent and other sums which would have become due (had this Lease not been terminated) for the balance of the term after the date of judgment," as such quoted or any similar phrases are used in this Article 21, the amounts of additional rents which would have been due per year under this Lease shall be such amounts as Landlord shall reasonably estimate to be the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated, increasing annually on the first day of each calendar year thereafter at the rate of seven percent per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and 10 hereof. Accordingly, Landlord may obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such right nor its exercise shall limit any other remedies which Landlord may have against Tenant for a breach of such Articles, including, without limitation, all remedies available under this Article 21. The reference herein to specific performance in connection with Articles 6, 7 and 10 shall not preclude the Obligation that is availability of specific performance, in any appropriate case, for the breach or threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (but shall not cured within be obligated to do so), cure any default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for all reasonable costs incurred by Landlord in curing such default, including, without limitation, reasonable attorneys' fees and other legal expenses, together with interest thereon at the applicable cure periodLease Interest Rate, notice having been givenwhich costs and interest thereon shall be deemed additional rent hereunder.
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