Defaults Remedies. (a) It shall be an Event of Default: (i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default; (ii) If Tenant enters into or permits any Transfer in violation of Section 18 above; (iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or (iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. (b) If an Event of Default occurs, Landlord shall have the following rights and remedies: (i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent; (ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach; (iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable; (iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and (v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area. (c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20. (d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy. (e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal. (f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 3 contracts
Sources: Lease Agreement (Free for All, Inc), Lease Agreement (Free for All, Inc), Lease Agreement (Free for All, Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 days 10days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under creditor ▇▇▇▇▇▇ any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To By lawful means, enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawfulPremises, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) In addition to the rights and remedies provided in subsection (b) above, if an Event of Default occurs relating to Tenant’s non-payment of the Rent due hereunder, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and to confess judgment against Tenant, and in favor of Landlord, for all Rent due hereunder plus costs and an attorney’s collection commission equal to the greater of 10% of all Rent or $1,000, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT’S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of the Rent and other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial term of this Lease and during any extended or renewal term of this Lease and after the expiration of any extended or renewal term of this Lease.
(d) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 13, 20 or 2027 or in an emergency.
(de) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(ef) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(fg) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(h) When this Lease and the Term or any extension thereof shall have been terminated on account of any default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. If for any reason after such action shall have been commenced it shall be determined and possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default(s) or upon the termination of this Lease or Tenant’s right of possession as herein set forth, to again confess judgment as herein provided, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant.
(i) The warrants to confess judgment set forth above shall continue in full force and effect and be unaffected by amendments to this Lease or other agreements between Landlord and Tenant even if any such amendments or other agreements increase Tenant’s obligations or expand the size of the Premises.
Appears in 2 contracts
Sources: Lease Agreement (PhaseBio Pharmaceuticals Inc), Lease Agreement (PhaseBio Pharmaceuticals Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property Premises of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. Any notice given pursuant to this Section 22(a) is in lieu of any written notice required by any applicable Laws, including, without limitation, any notice required under California Code of Civil Procedure Section 1161; or,
(v) If Tenant abandons or vacates the Property in excess of five (5) business days at a time, without making provisions for security. Tenant waives any right to notice Tenant may have under Section 1951.3 of the California Civil Code, the terms of this Section 22(a)(v) being deemed such notice to Tenant as required by said Section 1951.3.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 1510% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any propertyPremises, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord▇▇▇▇▇▇▇▇’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant▇▇▇▇▇▇’s account. Tenant ▇▇▇▇▇▇ agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate Landlord may recover any and all damages directly caused by ▇▇▇▇▇▇’s failure to perform under this Lease, or which are likely in the whole or any part ordinary course of the Rent for the balance of the Term, and declare the same business to be immediately due incurred, including, without limitation, all damages to which Landlord is entitled to recover under any and payable;all Laws now or hereafter in effect (including, without limitation, California Civil Code Section 1951.2).
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; andand recover as damages the worth, at the time of any award, of the amount by which the unpaid Rent for the balance of the Term after the time of the award exceeds the amount of the rental loss that the Tenant proves could be reasonably avoided, discounting the aggregate of such amounts to present value at one percent (1%) more than the discount rate of the Federal Reserve Bank in San Francisco in effect at the time of the award.
(v) Notwithstanding anything In accordance with California Civil Code Section 1951.4 (or any successor statute), Tenant acknowledges that in the event Tenant breaches this Lease and abandons the Premises, this Lease shall continue in effect for so long as Landlord does not terminate Tenant’s right to the contrary in possession, and Landlord may enforce all of its rights and remedies under this Lease, Landlord shall use commercially reasonable including, without limitation, the right to recover Rent as it becomes due under this Lease. Acts of maintenance or preservation or efforts to relet re-let the Premises in order or the appointment of a receiver upon initiative of Landlord to mitigate its damages hereunder, but Landlord protect Landlord’s interests under this Lease shall not be required constitute a termination of Tenant’s right to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.possession
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure any monetary default provided in Section 22(a) above more than twice three times in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant▇▇▇▇▇▇’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action or commences arbitration against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party its attorneys’ fees, costs of suit, investigation expenses expert and discovery costsconsulting fees incurred in such legal action, including costs of and any appeal.
(f) Landlord and Tenant ▇▇▇▇▇▇ waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 2 contracts
Sources: Lease (JFrog LTD), Lease Agreement (JFrog LTD)
Defaults Remedies. (a) It shall be an “Event of Default” following the expiration of all applicable notice and cure periods set forth below:
(i) If Tenant does not pay in full when due any and all Rent andRent, except as provided and such failure continues for more than five (5) business days following notice of delinquency from Landlord; provided, however, that Landlord shall not be obligated to provide written notice of monetary default more than one (1) time in Section 22(c) belowany twelve-month period, Tenant fails to cure and each subsequent monetary default during such default twelve-month period shall be an Event of Default if not received on or before the date that is 5 business days after Landlord gives Tenant notice of defaultdue hereunder;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 ten (10) business days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 ten (10) business days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 thirty (30) days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 ten (10) business days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice periods provided for in this Lease shall run concurrently with any statutory notice periods and any notice given hereunder may be given simultaneously with or incorporated into any such statutory notice.
(b) If an Event of Default occurs, Landlord shall shall, at any time thereafter, with or without notice or demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default (with such remedies being cumulative and not exclusive), have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of fifteen percent (15% %) thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To exercise all rights and remedies under ARS§§33-361 and 362 including, without limitation, to enter, re-enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, without terminating this Lease, and remove all persons and all or any propertyproperty from the Premises, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages, in which case Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover the Rent and all other amounts due hereunder as they become due. Landlord may, at LandlordL▇▇▇▇▇▇▇’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant T▇▇▇▇▇ agrees to pay to Landlord on demand within thirty (30) days any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. No re-entry or taking possession of the Premises by Landlord pursuant to this Section 22(b)(ii) or other action on Landlord’s part shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination hereof is decreed by a court of competent jurisdiction. L▇▇▇▇▇▇▇’s election not to terminate this Lease pursuant to this Section 22(b)(ii) or pursuant to any other provision of this Lease shall not preclude Landlord from subsequently electing to terminate this Lease or pursuing any of its other remedies;
(iii) To accelerate the whole or any part of the Rent for the balance of the TermTerm as provided in Section 22(b)(iv) below, along with all sums past due, and declare the same to be immediately due and payable, which sums shall be discounted to present value at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). In determining the amount of any future payments due Landlord as a result of increases in Annual Operating Expenses and Additional Taxes, Landlord may make such determination based upon the amount of Annual Operating Expenses and Additional Taxes paid by Tenant for the full year immediately prior to such Event of Default;
(iv) To terminate this Lease and the Term by any lawful means without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything , in which case Tenant shall promptly surrender possession of the Premises to the contrary in this LeaseLandlord. In such event, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from Tenant all damages incurred by Landlord by reason of Tenant’s default including, but not limited to, the other party cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, costs and any real estate commission actually paid; the “worth at the time of suitaward” established by the court having jurisdiction thereof of the amount by which the unpaid rent and other charges due for the balance of the Term after the time of Tenant’s default exceeds the amount of such rental loss for the same period that Tenant proves by clear and convincing evidence could have been reasonably avoided; and that portion of any leasing commission paid by Landlord applicable to the unexpired Term of this Lease (which shall be calculated based on the assumption that any leasing commission applicable to the Term would have been evenly and equally amortized in monthly payments over the number of months contained in the Term at an interest rate of seven percent (7%) per annum). For purposes of this Section 22(b)(iv), investigation expenses and discovery costs“worth at the time of award” of the amount referred to above shall be computed by discounting each amount by a rate equal to the Prime Rate at the time of the award plus three percent (3%), including costs but in no event more than an annual rate of appeal.
ten percent (f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to10%). As used herein, the subject matter “Prime Rate” means the then current prime rate published in the Western Edition of this Lease.the Wall Street Journal provided, however, if the Western Edition of the Wall Street Journal no publishes a prime rate then the Prime Rate shall be an equivalent rate established by a financial institution or financial publication designated by Landlord;
Appears in 2 contracts
Sources: Lease Agreement (Caris Life Sciences, Inc.), Lease Agreement (Caris Life Sciences, Inc.)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 aboveabove and Tenant does not void such Transfer within 10 days after the date that Landlord notifies Tenant in writing that Tenant is in violation of Section 18;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 1510% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To Following 24 hours prior telephonic notice to Tenant, to enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payablepayable (and, for purposes of acceleration of Annual Operating Expenses, the amount to be accelerated shall be based upon the assumption that Annual Operating Expenses for each Lease Year of the balance of the Term would be equal to the amount of Annual Operating Expenses which were payable by Tenant in the Lease Year immediately preceding the acceleration); provided, however, Tenant shall have the right, in any judicial proceedings brought to collect same, to assert a credit for the fair rental value of the Premises for the balance of the Term (which Landlord shall have the right to defend against), the burden of proving such credit to be on Tenant. The fair rental value of the Premises shall be net of the costs which would be reasonably incurred by Landlord in re-leasing the Premises, including without limitation, reasonable demolition and fit-out costs, brokerage commissions and legal fees and expenses. The accelerated amount determined to be payable to Landlord hereunder shall be reduced to present value at the rate of 6% per annum at the time of actual payment;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, : (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a22(a)(i) above for any default in the payment of Rent more than twice in any consecutive 12-month period, and thereafter during the balance of such consecutive 12-month period Landlord may declare an Event of Default for failure to pay Rent without affording Tenant any of the notice and cure rights provided under Section 22(a)(i) of this Lease, ; (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b)(i) in the event of an emergency that constitutes an imminent danger to persons or property or which requires emergency repairs to the Premises; (iii) only an additional 10 business day notice to Tenant shall be required by Landlord prior to Landlord exercising its rights under Section 22(b) if Tenant fails to comply discharge any lien or claim in accordance with Section 13 during the provisions of 15 day cure period provided in Section 27 or in an emergency, 13; and (iiiiv) if Tenant fails, during the 15 day time period provided in Section 20, to (A) execute, acknowledge and deliver to Landlord an estoppel certificate, or (B) furnish to Landlord, Landlord’s Mortgagee, prospective Mortgagee and/or prospective purchaser reasonably requested financial information (provided, however, if Tenant (or Tenant’s parent company with whom Tenant files consolidated financial statements) is a publicly traded entity, publicly available information of Tenant (or Tenant’s parent company with whom Tenant files consolidated financial statements) shall be sufficient), then Landlord shall only a be required to give Tenant an additional 5 business day notice shall be required if Tenant fails prior to comply with the provisions of Sections 13 or 20Landlord exercising its rights under Section 22(b).
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts Despite Landlord’s duty to mitigate in accordance with Section 22(b)(v), efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by lawlaw unless it so expressly provides, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery and other litigation costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) When this Lease and the Term or any extension thereof shall have been terminated on account of any monetary default or material non-monetary default (which includes, but is not limited to, any inability by Landlord to sell or refinance the Premises due to Tenant’s failure to timely execute, acknowledge and deliver to Landlord an estoppel certificate as set forth in Section 20) by Tenant which has continued beyond any applicable notice and cure periods provided in this Lease, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania, upon an additional 10 business days prior written notice to Tenant, to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED IN ACCORDANCE WITH THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. If for any reason after such action shall have been commenced it shall be determined and possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default(s) or upon the termination of this Lease or Tenant's right of possession as herein set forth, to again confess judgment as herein provided, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant.
(h) The warrant to confess judgment set forth above shall continue in full force and effect and be unaffected by amendments to this Lease or other agreements between Landlord and Tenant even if any such amendments or other agreements increase Tenant's obligations or expand the size of the Premises.
Appears in 1 contract
Sources: Lease Agreement (Zulily, Inc.)
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant (“Event of Default”):
(a) It shall The failure by Tenant to make any payment of Rent or any other payment required to be an Event made by Tenant hereunder within five (5) business days of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(cfollowing ten (10) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant written notice of defaultfrom Landlord;
(iib) If The failure by Tenant enters into to observe or permits perform any Transfer of the non-monetary covenants, conditions or provisions of this Lease to be observed or performed by Tenant, where such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant specifying the nature of the failure; provided, however, that if the nature of Tenant’s default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in violation of Section 18 above;default if Tenant commences such cure within said thirty-day period and thereafter, diligently prosecutes such cure to completion; or
(iiic) If The making by Tenant fails of any general assignment or general arrangement for the benefit of creditors, filing by or against Tenant under any law relating to observe and perform bankruptcy (unless in the case of a petition filed against Tenant, the same is dismissed within ninety (90) days) the appointment of a trustee or otherwise breaches receiver to take possession of substantially all of Tenant’s assets located in the Leased Premises or Tenant’s interest in this Lease where possession is not restored to Tenant within ninety (90) days, or the attachment, execution of other judicial seizure of substantially all of Tenant’s assets located at the Leased Premises or Tenant’s interest in this Lease, where such seizure is not discharged within ninety (90) days. In the event of such Event of Default by Tenant, Landlord may, at any time hereunder, with or without notice or demand, without limiting Landlord in the exercise of any other provision right or remedy which Landlord may have hereunder or pursuant to applicable law by reason of such default or breach, proceed in the following manner: Notwithstanding that Landlord prior to such breach or default shall have received Rent or any payment, however designated, for the use of the Leased Premises from or on behalf of Tenant or from any other person and regardless of and notwithstanding the fact that Landlord has or may have some other remedy under this Lease or by virtue hereof, or by law or in equity, Landlord may, immediately or at any time after any of such breach or default give Tenant a notice of termination of this Lease, and, except as provided upon the giving of such notice, this Lease and the term and estate hereby granted shall expire and terminate upon the day so specified in Section 22(csuch notice (which date shall be no less than ten (10) below, Tenant fails to cure the default on or before business days from the date that is 30 days after Landlord gives Tenant notice of default; provided, however, notice) as fully and completely and with the same force and effect as if the default cannot reasonably be cured within 30 days following Landlord’s giving day so specified were the date hereinbefore fixed for the normal expiration of noticethe term of this Lease and all rights of Tenant under this Lease shall expire and terminate, but Tenant shall remain liable for damages as hereinafter provided. Upon any such termination of this Lease, Tenant shall be afforded additional reasonable time (not peaceably quit and surrender the Leased Premises to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice , and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditorsLandlord may, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenantsummary proceeding, or a ▇▇▇▇ in equity ejectment, unlawful detainer or other proceeding for judicial procedure, dispossess and remove Tenant and all other persons and property from the appointment Leased Premises, and may have, hold and enjoy the Leased Premises and the right to receive all rental and other income of a receiver for any of Tenant’s assets is commenced, or if any of and from the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred same. No re-entry by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess an acceptance of a surrender of this Lease. Suit or suits for the Premises lawfullyrecovery of such damages, or any installments thereof, may be brought by breaking open locked doors if necessary and lawfulLandlord from time to time at its election, and remove all persons and all nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been terminated under the provisions of this paragraph, or under any propertyprovisions of law, by action or had Landlord not re-entered the Leased Premises. Landlord shall also be entitled to such other remedies as may be available at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs equity in order to relet the Premises and relet all or any part(s) event of the Premises for Tenant’s account. default by Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettinghereunder. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate a dispute between the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies parties hereto with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenantenforcement of either party’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Leaseobligations contained herein, the prevailing party shall be entitled to have and recover from the other party attorneys’ reimbursement of reasonable attorney’s fees, costs of suit, investigation expenses and discovery costs, including costs of appealand expenses incurred in connection therewith.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease (Chase Corp)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To After a further 10 day prior written notice to Tenant of Landlord’s intent to exercise its rights pursuant to this Section 22(b)(iii), unless such Event of Default is cured within said 10 day period, to accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable, discounted to present value at the rate equal to the annual yield on 30 day United States Treasury bills at the time of acceleration (provided, however, there shall not be any discounting for any then current arrearage);
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this LeaseIntentionally Deleted.
(vi) AFTER AN EVENT OF DEFAULT OR THE EXPIRATION OF THE TERM, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunderAND AFTER A FURTHER 5 DAY PRIOR WRITTEN NOTICE TO TENANT OF LANDLORD’S INTENT TO EXERCISE ITS RIGHT PURSUANT TO THIS SECTION 22(b)(vi), but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market areaFOR THE PURPOSE OF OBTAINING POSSESSION OF THE PREMISES, TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR TENANT AND ALL PERSONS CLAIMING UNDER OR THROUGH TENANT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES, AND AGAINST ALL PERSONS CLAIMING UNDER OR THROUGH TENANT, IN FAVOR OF LANDLORD, FOR RECOVERY BY LANDLORD OF POSSESSION THEREOF, FOR WHICH THIS AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE PREMISES, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED THE SAME SHALL BE TERMINATED AND THE POSSESSION OF THE PREMISES REMAINS IN OR IS RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT TO CONFESS JUDGMENT IN ONE OR MORE FURTHER ACTIONS IN THE MANNER AND FORM SET FORTH ABOVE TO RECOVER POSSESSION OF SAID PREMISES FOR SUCH SUBSEQUENT DEFAULT. TENANT WAIVES ALL ERRORS IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT. NO SUCH TERMINATION OF THIS LEASE, NOR TAKING, NOR RECOVERING POSSESSION OF THE PREMISES SHALL DEPRIVE LANDLORD OF ANY REMEDIES OR ACTION AGAINST TENANT FOR RENT OR FOR DAMAGES DUE OR TO BECOME DUE FOR THE BREACH OF ANY CONDITION OR COVENANT HEREIN CONTAINED, NOR SHALL THE BRINGING OF ANY SUCH ACTION FOR RENT, OR BREACH OF COVENANT OR CONDITION NOR THE RESORT TO ANY OTHER REMEDY HEREIN PROVIDED FOR THE RECOVERY OF RENT OR DAMAGES FOR SUCH BREACH BE CONSTRUED AS A WAIVER OF THE RIGHT TO INSIST UPON THE FORFEITURE AND TO OBTAIN POSSESSION IN THE MANNER HEREIN PROVIDED.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this LeaseLease (except as otherwise expressly provided herein), (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or Section 20, and Tenant fails to cure such failure within 5 days following receipt of notice of such failure from Landlord, it shall be an Event of Default.
(d) No waiver by Landlord or Tenant of any breach by Tenant the other party shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord or Tenant to seek a remedy for any breach by Tenant the other party be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord or Tenant is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party reasonable attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall use commercially reasonable efforts to mitigate Landlord’s damages under the Lease due to a default by Tenant; provided, however, that Landlord shall be under no duty to relet the Premises prior to leasing other available space in the Building and, so long as Landlord uses commercially reasonable efforts as required by this Section 22(g), in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting. In the event Landlord shall recover the accelerated rent from Tenant as set forth in Section 22(b)(iii) above, and it shall be determined at the expiration of the Term (taken without regard to early termination for default) that a credit is due Tenant because the net proceeds of reletting, as aforesaid, plus the amounts paid to Landlord by Tenant exceed the aggregate of Rent and other charges accrued in favor of Landlord to the end of said term, Landlord shall refund such excess to Tenant, without interest, promptly after such determination.
Appears in 1 contract
Sources: Lease Agreement (Neuronetics, Inc.)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent andwithin 5 days after Landlord gives Tenant notice that such Rent was not paid when due, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or;
(iviii) If Tenant becomes insolvent or bankrupt in any sense or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(iv) If an event of default occurs under the City/Tenant Financing.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest thereon at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with lawapplicable Laws, without being liable for prosecution or damages. , and Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;.
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and.
(iv) If Landlord obtains a final and unappealable judicial determination that Tenant is in default in the payment of Monthly Rent for a total of six (6) months or more (taking into account the expiration of any applicable cure period without Tenant having effected a cure), and if Tenant shall not have cured such delinquency within thirty (30) days after the entry of such judgment (or, if later, the date on which it becomes final), then Landlord shall have the further right to require Tenant, by giving written notice to Tenant, to pay all Rent during the balance of the Term in semi-annual (as opposed to monthly) payments, each payable in advance, without Landlord’s being required to obtain separate judgments for any other default in the payment of Rent. Landlord agrees to credit against any such payments (or if collected during any period for which Tenant shall have made such advance payment of Monthly Rent, Landlord shall pay to Tenant within twenty (20) days after receipt thereof) actually made by Tenant the rentals actually received by Landlord on account of any reletting of the Premises by Landlord, net of the reasonable costs of reletting and preparing the premises for the replacement tenant.
(v) Notwithstanding anything to When this Lease and the contrary in this Lease, Landlord Term or any extension thereof shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in have been terminated on account of any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the notice Commonwealth of Pennsylvania to appear for Tenant and cure rights provided for anyone claiming by, through or under this Lease, (ii) Landlord shall not be required Tenant and to give confess judgment against all such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergencyparties, and (iii) only in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a 5 day notice true and correct copy hereof shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights good and remedies with respect to such or any subsequent breachsufficient warrant. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE
Appears in 1 contract
Sources: Office and Industrial Lease Agreement (WuXi PharmaTech (Cayman) Inc.)
Defaults Remedies. (a) It shall be an “Event of Default” if:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, and Tenant fails to cure such default on or before the date failure within 10 days of receipt of written notice thereof from Landlord (provided, however, that is 5 business days after Landlord gives shall not be obligated to provide any such notice to Tenant more than 1 time during any 12 month period, and should Tenant fail to pay in full when due any and all Rent within 12 months of Tenant’s receipt of any such notice from Landlord, such failure shall constitute an automatic Event of default;Default).
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;.
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, and Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; , provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; ordefault (not to exceed 60 days following L▇▇▇▇▇▇▇’s original notice).
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; , provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Savara Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business five (5) days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty(30) days following Landlord’s 's giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 ninety (90) days following Landlord’s 's notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s 's notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s 's incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s 's option, make Alterations and repairs in order to relet re-let the Premises and relet re-let all or any part(s) of the Premises for Tenant’s 's account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingre-letting. In the event of reletting re-letting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive twelve (12-) month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or Section 20, and Tenant fails to cure the default within five (5) days following Landlord's giving of notice, it shall be an Event of Default and Landlord shall have the rights provided in Section 22(b) above.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s 's default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s 's right to recover the balance of Rent due, or Landlord’s 's right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ ' fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall use commercially reasonable efforts to relet the Premises following Tenant's vacation of the Premises and Tenant's returning the Premises to the condition required at the time of the expiration of this Lease and to otherwise mitigate Landlord's damages under this Lease; provided, however, that Landlord shall be under no duty to market or relet the Premises prior to leasing other available space in the Building and, in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting.
Appears in 1 contract
Sources: Lease Agreement (electroCore, Inc.)
Defaults Remedies. If any of the following (an “Event of Default”) shall occur:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all installments of rent (whether Fixed Rent andor additional rent) or any other charge or payment whether or not herein included as rent, except as provided in Section 22(cand such failure shall continue for a period of five (5) belowdays following written notice provided, Tenant fails however, Landlord shall not be obligated to cure such default on or before the date that is 5 business days after Landlord gives Tenant give written notice of defaultmore frequently than two times during any twelve (12) month period;
(iib) If Tenant enters into violates or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches comply with any other provision of this Leasenon-monetary covenant, and, except as provided in Section 22(cagreement or condition herein contained within fifteen (15) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant written notice of default; from Landlord, provided, however, if the nature of the default canis one that is not reasonably be cured susceptible to cure within 30 days following Landlord’s giving of noticefifteen (15) days, Tenant shall not be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the in default if Tenant begins so long as it commences to cure the default within 30 fifteen (15) days following after written notice from Landlord and thereafter diligently pursues such cure and completes the same within sixty (60) days after the date of Landlord’s notice;
(c) Tenant abandons the Premises or removes or attempts to remove Tenant’s property therefrom other than in the ordinary course of business without having first paid to Landlord in full all rent and charges that may have become due as well as all which will become due thereafter provided, however, Tenant may vacate the Premises following ten (10) days prior written notice to Landlord so long as Tenant thereafter continues to observe and continues diligently in good faith to completely cure the defaultfulfill all of its obligations under this Lease; or
(ivd) If An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant becomes or the 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 appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or 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 involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, of if Tenant or a Guarantor commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or if Tenant or any Guarantor makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditors, pay its debts generally as they become due or fails to generally pay its debts as they become due or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under Tenant is levied upon and is about to be sold out upon the Premises by any federal or state law is filed by or against Tenantsheriff, or a ▇▇▇▇▇▇▇▇ or constable or Tenant or its stockholders or Board of Directors or any committee thereof takes any action in equity contemplation, preparation or other proceeding for the appointment furtherance of a receiver or for any of the foregoing, or, if Tenant or any Guarantor is a corporation and is dissolved or liquidated, Then, and in any such event, at the sole option of Landlord,
(i) The whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease, herein reserved or agreed to be paid by Tenant, or any part of such rent, charges and other 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 six percent (6%) 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 assets is commencedfailure to perform its obligations under this Lease or 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 if any in lieu of the real 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 personal property 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 levied upon; provided that liable for any proceeding brought 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 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 anyone Tenant to Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other than 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 under any bankruptcy, insolvency, receivership or similar law shall not constitute 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, as Tenant’s and their agent to collect the rents due or to become due under all subleases of the Premises or any parts thereof following the occurrence of an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without in any way affecting Tenant’s obligation to do so, may elect to cure the default on behalf pay any unpaid balance of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all rent or any property, by action at law other sum due or otherwise in accordance with law, without being liable for prosecution or damagesto become due hereunder. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or Notwithstanding any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for such Tenant’s previous breach;
(iii) To accelerate . 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 pursuant to appropriate legal process, unless Tenant has abandoned the Premises, 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 or any part balance of rent and all other sums payable hereunder for the entire balance of the Rent 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 Termterm after the date of judgment,” as such quoted or any similar phrases are used in this Article 21, and declare the same 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 immediately due and payable;
(iv) To terminate the per annum rates of additional rent for the calendar year during which this Lease was terminated or during which rent was accelerated. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, 7 and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other 10 hereof. Accordingly, Landlord may obtain specific performance of any conditionprovision of Articles 6, term 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 availability of specific performance, in any appropriate case, for the breach or covenant broken; and
threatened breach of any other provision of this Lease. In addition to other remedies available to Landlord herein, Landlord may (v) but shall not be obligated to do so), cure any default on behalf of Tenant following the occurrence of an Event of Default, 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 Lease Interest Rate, which costs and interest thereon shall be deemed additional rent hereunder. Notwithstanding anything to the contrary contained herein, neither party shall be liable for indirect, consequential, exemplary or punitive damages. Landlord hereby waives any lien or right of distress or distraint, security interest or Landlord’s lien with respect to any property of Tenant within the Premises. Also in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month periodaddition to, and thereafter Landlord may declare an Event not in lieu of Default without affording Tenant any of the notice foregoing rights granted to Landlord; As used in this Article 21, the “term” shall include the Term of this Lease and cure rights provided under this Lease, (ii) Landlord shall not be required any renewals or extensions thereof to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by which Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedyhave become bound.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Ym Biosciences Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days five (5) Business Days after Landlord gives Tenant notice of default, provided, however, that with respect to failure to pay any sum that is not a regular installment of monthly Rent, such failure shall not be an Event of Default hereunder unless Landlord thereafter delivers to Tenant a second written notice which contains a statement in BOLD FACE CONSPICUOUS TYPE that it is a second notice of default and that failure to cure such default within three (3) Business Days from the date of receipt of the notice shall constitute an Event of Default under this Lease, and Tenant thereafter fails to cure such default within such three (3) Business Day period;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent insolvent, or transfers all or substantially all of Tenant’s assets, or makes a general assignment for the benefit of creditors creditors, or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed or undismissed for more than 60 sixty (60) consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part up to six (6) months of the Rent for the balance of the Termnext due and owing, and declare the same to be immediately due and payable;; provided that if Tenant shall pay such amount within twenty (20) days of written demand by Landlord therefor, the Event of Default shall be deemed to have been cured and the Rent for the next six (6) months shall be deemed to have been fully pre-paid; and/or
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
broken and recover from Tenant upon demand therefor, as liquidated and agreed upon final damages for Tenant’s default, an amount equal to (vi) Notwithstanding anything to the contrary in net present value of the sum of the Minimum Rent and Additional Rent reserved under this LeaseLease until the then-scheduled Expiration Date, Landlord shall use commercially reasonable efforts to relet less (ii) the net present value of the Fair Market Rent for the Premises in order to mitigate its damages hereunder, but Landlord shall not (as reasonably determined by Landlord) net of costs which would be required to prefer the Premises over other space available for lease in the Building or in other buildings owned reasonably incurred by Landlord or its Affiliates in re-leasing the southern New Jersey market areaPremises, including without limitation, reasonable demolition and fit-out costs, a one-year tenantless transition period, brokerage commissions, legal fees and expenses. For purposes of this Section 22(b)(iv), net present value shall be determined by discounting future amounts at the rate of four percent (4%) per annum.
(c) Any provision to the contrary in this Section 22 notwithstanding, notwithstanding (i) with respect to installments of Monthly Rent, Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under this Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required 22 if Tenant fails to comply with the provisions of Sections 13 13, 20(a) or 2026, provided that Landlord has previously delivered the written notice contemplated in such sections and Landlord thereafter delivers to Tenant a written notice which contains a statement in BOLD FACE CONSPICUOUS TYPE that it is a second notice of default and that failure to cure such default within three (3) Business Days from the date of receipt of the notice shall constitute an Event of Default under this Lease, and Tenant thereafter fails to cure such default within such three (3) Business Day period.
(d) No waiver by Landlord or Tenant of any breach by Tenant the other shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord either to seek a remedy for any breach by Tenant the other be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts Landlord shall use commercially reasonable efforts to mitigate its damages hereunder attributable to an Event of Default, but efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord either party is intended to be exclusive of any other right or remedy provided herein or by lawlaw or in equity, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s 's right to recover the balance of Rent due, or Landlord’s 's right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ ' fees, costs of suit, investigation expenses and discovery and other litigation costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by ACA:
(a) It shall be an Event The vacating or abandonment of Default:the Premises by ACA.
(ib) ACA’s failure to maintain itself as a valid non-profit corporation under state and federal law.
(c) If Tenant does not pay in full when due ACA ceases regularly using and operating the Premises.
(d) The failure by ACA to observe or perform any and all Rent andof the covenants, except as provided in Section 22(cconditions or provisions of this Lease to be observed or performed by ACA, where such failure shall continue for a period of thirty (30) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails thereof from Owner to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of defaultACA; provided, however, that if the nature of ACA's default cannot is such that more than thirty (30) are reasonably be cured within 30 days following Landlord’s giving of noticerequired for its cure, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law then ACA shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on accountin default if ACA commences such cure within said thirty (30) period and thereafter, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept diligently prosecutes such check or payment without prejudice cure to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedycompletion.
(e) If either party commences an action The making by ACA of any general assignment or general arrangement for the benefit of creditors, filing by or against ACA under any law relating to bankruptcy (unless in the case of a petition filed against ACA, the same is dismissed within sixty (60 days), the appointment of a Trustee or receiver to take possession of substantially all of ACA's assets located in the Premises or ACA's interest in this Lease where possession is not restored to ACA within thirty (30 days) or the attachment, execution of other party arising out judicial seizure of substantially all of ACA's assets located at the premises or ACA's interest in connection with this Lease, the prevailing party where such seizure is not discharged within thirty (30) days. Upon an uncured default by ACA, Owner shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, immediately take possession of the subject matter of this LeasePremises.
Appears in 1 contract
Sources: Lease and Purchase Option Agreement
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(cwithin five (5) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of defaultthat such Rent was not paid when due, except as provided in Subsection 22(c) below;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section Subsection 22(c) below, Tenant fails to cure the default on or before the date that is 30 days ten (10) Business Days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days ten (10) Business Days following Landlord’s giving of 's notice, Tenant shall be afforded additional reasonable time to cure the default (not to exceed 45 days following Landlord’s noticean additional one hundred Eighty (180) to cure the default days) if Tenant begins to cure the default within 30 days ten (10) Business Days following Landlord’s 's notice and continues diligently in good faith to completely cure the default; or;
(iviii) If Tenant becomes insolvent or bankrupt in any sense or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal property of Tenant shall be levied uponupon in connection with such insolvency or bankruptcy proceeding; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(iv) If Tenant enters in to or permits a Transfer in violation of Section 18 above.
(v) If any default occurs under the Improvements Agreement which is not cured within the time periods specified therein.
(vi) If, subject to the reductions permitted under Section 27, the LC is terminated or expires prior to the original Expiration Date of this Lease, or if Landlord receives notice from the issuing bank that the LC will expire or be terminated prior to the original Expiration Date of this Lease and Tenant does not cause the LC to be renewed or reissued within the earlier of (A) five (5) Business Days after Landlord’s written notice to Tenant, or (B) thirty (30) days prior to the effective date of such expiration or termination.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord in curing the default (together with an administrative fee of 15% thereof) in curing the default), plus interest thereon at the Interest Rate from the respective dates of Landlord’s 's incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with lawapplicable Laws, without being liable for prosecution or damages. , and Landlord may, at Landlord’s 's option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s 's account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and.
(v) Notwithstanding anything to the contrary in this LeaseIN ADDITION TO THE RIGHTS AND REMEDIES PROVIDED ABOVE, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunderIF AN EVENT OF DEFAULT OCCURS RELATING TO TENANT'S NON-PAYMENT OF THE RENT DUE HEREUNDER, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market areaTENANT HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT AND TO CONFESS JUDGMENT AGAINST TENANT, AND IN FAVOR OF LANDLORD, FOR ALL RENT DUE HEREUNDER PLUS COSTS AND AN ATTORNEY'S COLLECTION COMMISSION EQUAL TO THE GREATER OF 10% OF ALL RENT OR $1,000, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF THE RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE INITIAL TERM OF THIS LEASE AND DURING ANY EXTENDED OR RENEWAL TERM OF THIS LEASE AND AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM OF THIS LEASE.
(vi) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY EVENT OF DEFAULT BY TENANT, OR WHEN THE TERM OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, TENANT HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT AND FOR ANYONE CLAIMING BY, THROUGH OR UNDER TENANT AND TO CONFESS JUDGMENT AGAINST ALL SUCH PARTIES, AND IN FAVOR OF LANDLORD, IN EJECTMENT AND FOR THE RECOVERY OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED AND POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME EVENT OF DEFAULT AND UPON ANY SUBSEQUENT EVENT OF DEFAULT(S) OR UPON THE TERMINATION OF THIS LEASE OR TENANT'S RIGHT OF POSSESSION AS HEREIN SET FORTH, TO AGAIN CONFESS JUDGMENT AS HEREIN PROVIDED, FOR WHICH THIS LEASE OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT.
(vii) THE WARRANTS TO CONFESS JUDGMENT SET FORTH ABOVE SHALL CONTINUE IN FULL FORCE AND EFFECT AND BE UNAFFECTED BY AMENDMENTS TO THIS LEASE OR OTHER AGREEMENTS BETWEEN LANDLORD AND TENANT EVEN IF ANY SUCH AMENDMENTS OR OTHER AGREEMENTS INCREASE TENANT'S OBLIGATIONS OR EXPAND THE SIZE OF THE PREMISES. TENANT WAIVES ANY PROCEDURAL ERRORS IN CONNECTION WITH THE ENTRY OF ANY SUCH JUDGMENT OR IN THE ISSUANCE OF ANY ONE OR MORE WRITS OF POSSESSION OR EXECUTION OR GARNISHMENT THEREON.
(viii) TENANT KNOWINGLY AND EXPRESSLY WAIVES (i) ANY RIGHT, INCLUDING, WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT MAY HAVE TO RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR REPOSSESSION OF THE PREMISES AND (ii) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR THEREAFTER.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section Subsection 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section Subsection 22(b) if Tenant fails to comply with the provisions of Section 27 Sections 13, 18, 20 or 27, or in an emergency. Notwithstanding the foregoing, Landlord shall provide Tenant with additional written notice at least thirty (30) days prior to exercising any confession of judgment against Tenant pursuant to Sections 22(b)(v) - 22(b)(viii); provided, however, that if Landlord elects to confess judgment for Rent and attorney fees pursuant to Section 22(b)(v) without first accelerating the Rent, thereby requiring multiple confessions of judgment as Rent accrues, a single notice of such election delivered to Tenant at least thirty (30) days prior to the first such exercise of the confession of judgment shall suffice, and (iii) only a 5 day notice no further notices shall be required if Tenant fails to comply with the provisions for subsequent confessions of Sections 13 or 20judgment for Rent and attorney fees.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s 's default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s 's right to recover the balance of Rent due, or Landlord’s 's right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party (i) Tenant shall be entitled to have pay upon demand all costs and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costsexpenses, including the reasonable fees and out-of-pocket expenses of counsel, agents and others retained by Landlord, incurred in enforcing Tenant's obligations hereunder or incurred by Landlord in any litigation, negotiation or transaction in which Tenant causes Landlord to become involved. Landlord shall pay upon demand all costs and expenses, including the reasonable fees and out-of-pocket expenses of appeal.
(f) counsel, agents and others retained by Tenant, incurred in enforcing Landlord's obligations hereunder or incurred by Tenant in any litigation, negotiation or transaction in which Landlord causes Tenant to become involved. Notwithstanding the foregoing, each of Landlord and Tenant waive shall pay the right to a trial by jury fees of its own counsel in negotiating this Lease and any action amendment thereto or proceeding based upon extension of the term thereof as well as any estoppel certificate or related tosubordination, the subject matter of this Leasenon-disturbance and attornment agreement.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business five (5) days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to comply with the provisions of Sections 13, 20 or 27 and Tenant fails to cure such default on or before the date that is five (5) business days after Landlord gives Tenant notice of default; provided, however, that Landlord shall not be required to give Tenant such notice and opportunity to cure to the extent Tenant fails to deliver the Security Deposit in accordance with the provisions of the first (1st) sentence of Section 27;
(iv) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(ivv) If Tenant or Guarantor becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against TenantTenant or Guarantor, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s or Guarantor’s assets is commenced, or if any of the real or personal property of Tenant or Guarantor shall be levied uponupon in connection therewith; provided that any proceeding brought by anyone other than Landlord Landlord, Tenant or Tenant Guarantor under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any written notice set forth herein shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Sections 1161, et seq. and all similar or successor laws. The notice periods provided herein are in lieu of, and not in addition to, any notice periods provided by law.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) Intentionally Omitted;
(iii) To enter and repossess terminate this Lease, in which event Tenant shall immediately surrender the Premises lawfully, by breaking open locked doors if necessary and lawfulto Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in Rent, enter upon and take possession of the Premises and expel or remove all persons Tenant and all any other person who may be occupying the Premises or any property, part thereof by action at law or otherwise in accordance with lawany lawful means, without being liable for prosecution or damages. any claim for damages therefor; and Landlord may, may recover from Tenant the following: (a) the worth at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or time of award of any part(sunpaid Rent which has been earned at the time of such termination; plus (b) the worth at the time of award of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred amount by Landlord) that may arise by reason which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such reletting. In rental loss that Tenant proves could have been reasonably avoided; plus (c) the event worth at the time of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part award of the amount by which the unpaid Rent for the balance of the TermLease Term after the time of award exceeds the amount of such rental loss 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 which in the ordinary course of things would be likely to result therefrom, specifically including but not limited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and declare any special concessions made to obtain a new tenant; and (e) at Landlord’s election, such other amounts in addition to or in lieu of the same foregoing as may be permitted from time to time by applicable Law; provided, however, that Landlord may not terminate this Lease unless, after the occurrence of the Event of Default, Landlord delivers to Tenant notice of Landlord’s intent to so terminate (which notice shall be immediately due in addition to any notice required under Section 22(a) above). As used in Sections 22(b)(iii)(a) and payable;(b), above, the “worth at the time of award” shall be computed by allowing interest at the Interest Rate. As used in Section 22(b)(iii)(c), above, the “worth at the time of award” shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%); and
(iv) To Landlord shall have the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if Landlord does not elect to terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment account of any sum due or Event of Default by other performance of any conditionTenant, term or covenant broken; and
(v) Notwithstanding anything Landlord may, from time to the contrary in time, without terminating this Lease, Landlord shall use commercially reasonable efforts enforce all of its rights and remedies under this Lease, including the right to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market arearecover all Rent as it becomes due.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a22(a)(i) or Section 22(a)(iv) above (with respect to the same default thereunder) more than twice in any consecutive twelve (12-) month period, and thereafter thereafter, during the remainder of such twelve (12) month period, Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) To the extent permitted by applicable Laws, Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (QuantumScape Corp)
Defaults Remedies. 25.1. Each of the following events shall be a “Default” under this Lease:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure pay any amount of Fixed Rent, when the same shall be due and such default on or before the date that is 5 business failure shall continue for ten (10) calendar days after written notice from Landlord gives Tenant notice of defaultto Tenant;
(iib) If Tenant enters into or permits fails to pay any Transfer in violation amount of Section 18 aboveAdditional Rent when the same shall be due, and such failure shall continue for ten (10) calendar days after written notice from Landlord to Tenant;
(iiic) If Tenant fails to observe and keep or perform or otherwise breaches any other covenant or provision of this Lease, andand such failure continues for thirty (30) days after written notice from Landlord, except unless such failure requires work to be performed, acts to be done, or conditions to be remedied which cannot be performed, done or remedied within such thirty (30) days, in which case the Default shall not be deemed to exist as provided in Section 22(c) below, long as Tenant fails duly commences and diligently and continuously prosecutes to completion all steps necessary to cure and remedy the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; orsame;
(ivd) If Tenant becomes insolvent or admits, in writing, that Tenant is unable to pay Tenant’s debts as such become due;
(e) Tenant makes a general an assignment for the benefit of creditors or offers creditors;
(f) Tenant files a settlement to creditors, or if a voluntary petition in bankruptcy or for reorganization Tenant files any petition or for an arrangement with creditors answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any federal present or state law is filed by or against Tenantfuture Legal Requirements, or a ▇▇▇▇ Tenant seeks or consents to or acquiesces in equity or other proceeding for the appointment of a any trustee, receiver for or liquidator of Tenant or of the Premises (or, Tenant’s interest therein) or of all or any substantial part of Tenant’s assets property; and
(g) if, within sixty (60) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future Legal Requirements, such proceeding is commencednot dismissed; or if, within sixty (60) days after the appointment (without the consent or acquiescence of Tenant) of any trustee, receiver or liquidator of Tenant or of all or any substantial part of Tenant’s property or of the Premises (or Tenant’s interest therein), such appointment is not vacated or stayed on appeal or otherwise.
25.2. If and whenever any Default occurs, Landlord may give written notice to Tenant (the “Termination Notice”) stating that this Lease and the Term shall expire and terminate on the date specified in such Termination Notice (which date shall be not earlier than five (5) days after the giving of the Termination Notice). In such event, this Lease and the Term (and Tenant’s entire right, title, and interest therein) shall expire and terminate as if the date specified in the Termination Notice were the Expiration Date; and Tenant shall quit and surrender the Premises but shall remain liable as hereinafter provided. Notwithstanding the foregoing provisions of this Section 25.2, Landlord will not be required to give any notice of default and no cure period shall be applicable to the failure of Tenant to observe or perform any of its agreements or obligations hereunder that are of the type (i.e., failure to pay timely the Fixed Rent) of an agreement or obligation of which, within the immediately preceding one hundred twenty (120) day period Tenant has committed two or more defaults hereunder, and about which Landlord has transmitted to Tenant two or more default notices.
25.3. If and whenever any Default occurs, or if any of this Lease and the real or personal property of Term terminate under Section 25.2, Landlord may without notice re-enter and repossess the Premises; and Tenant shall be levied upon; provided that any proceeding brought by anyone other than remain liable as hereinafter provided. If Landlord or Tenant under any bankruptcyso re-enters, insolvencyat its option, receivership or similar law shall Landlord may:
(a) complete Landlord’s Work to the extent not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.then completed;
(b) If an Event repair and alter the Premises in such manner as Landlord may deem necessary or desirable without relieving Tenant of Default occurs, Landlord shall have the following rights and remedies:any liability whatsoever under this Lease; and
(ic) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid let or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all (or any part(sparts thereof) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance remainder of the Term, or for a longer period, in Landlord’s name or as agent of Tenant, and declare pay and apply all rents and other sums thus collected or received as follows:
(i) first, to all reasonable costs and expenses which Landlord pays or incurs in terminating this Lease, re-entering, retaking, repossessing, repairing and/or altering the same to be immediately due Premises, and payablepeaceably removing all Persons and property therefrom, including all Fees-And-Costs;
(ivii) To terminate this Lease second, to all reasonable costs and expenses which Landlord incurs in securing any new tenant(s) of the Term without any right on Premises (including such costs brokerage commissions and reasonable expenses of preparing the part Premises for re-letting, and all Fees-And-Costs; and, if Landlord maintains the Premises, all reasonable costs and expenses of Tenant to save maintaining the forfeiture by payment of any sum due or by other performance of any conditionPremises, term or covenant brokenincluding utilities); and
(viii) Notwithstanding anything third, any balance then remaining on account of Tenant’s liability to the contrary in Landlord under this Lease. In no case shall re-entry by Landlord, whether under summary proceedings or otherwise, absolve or discharge Tenant from any liability whatsoever under this Lease. Landlord shall use commercially reasonable efforts have no obligation whatsoever to relet the Premises in order (or any parts thereof), or to mitigate its damages hereunder, but Landlord collect any rent or other sums due on any such re-letting; and Landlord’s failure to relet or to collect Rent shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give relieve Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in of any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided liability whatsoever under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Antares Pharma Inc)
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant:
(a) It The vacating or abandonment of the Premises by Tenant and a failure to continue to pay rent;
(b) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder as and when due;
(c) The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant other than those described in Paragraph (b) hereinabove, where such failure shall continue for a period of five (5) business days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than five (5) business days are reasonably required for its cure, then Tenant shall not be an Event deemed to be in default if Tenant commences such cure within said five (5) business day period and thereafter, diligently prosecutes such cure to completion;
(d) The making by Tenant of Defaultany general assignment or general arrangement for the benefit of creditors, filing by or against Tenant of a petition to have Tenant adjudged bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless in the case of a petition filed against Tenant, the same is dismissed within sixty [60] days), the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located in the Premises or Tenant's interest in this Lease where possession is not restored to Tenant within thirty (30) days, or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days. In the event of such material default or breach by Tenant, Landlord may, at any time hereunder, with or without notice or demand, without limiting Landlord in the exercise of any right or remedy which Landlord may have by reason of such default or breach, proceed in the following manner:
(i) If Terminate Tenant's right to possession of the Premises by any lawful means, in which case Tenant's possession shall be terminated and Tenant does shall immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default, including, but not pay in full when limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation or alteration of the Premises; reasonable attorneys' fees; any real estate commission actually paid; that portion of the Lease and commission paid by Landlord pursuant to any agency agreement applicable to the unexpired term of this Lease; and such other out-of- pocket expenses as Landlord might incur. Unpaid installments of rent or other sums shall bear interest from date due at the rate of twelve percent (12.00%) per annum, after Tenant's right to possession has been terminated. No receipt of money by Landlord from Tenant after the termination of this Lease, the service of notice, the commencement of any and all Rent andsuit or final judgment or repossession shall automatically reinstate, except as provided in Section 22(c) belowcontinue or extend the term of this Lease or affect any such notice, Tenant fails to cure such default on demand, suit or before the date that is 5 business days after Landlord gives Tenant notice of default;judgment.
(ii) If Maintain Tenant's right to possession in which case this Lease shall continue in effect whether or not Tenant enters into or permits any Transfer in violation shall have abandoned the Premises. In such event, Landlord shall be entitled to enforce all of Section 18 above;Landlord's rights and remedies under this Lease, including the right to recover the rent as it becomes due hereunder, and reasonable attorneys' fees.
(iii) If Tenant Pursue any other remedy not or hereafter available to Landlord under the laws or jurisdictional decisions of the state in which the Premises are located. All rights and remedies of Landlord herein enumerated shall be cumulative, and none shall exclude any other right allowed by law. Landlord shall not be in default unless Landlord fails to observe and perform or otherwise breaches any other provision the obligations required of this LeaseLandlord within a reasonable time, and, except as provided but in Section 22(cno event sooner than thirty (30) below, Tenant fails to cure the default on or before the date that is 30 days after written notice by Tenant to Landlord gives Tenant notice of defaultspecifying wherein Landlord has failed to perform such obligations; provided, however, that if the default cannot reasonably be cured within 30 days following nature of Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law 's obligation is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided such that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
thirty (b30) If an Event of Default occursdays is required for performance, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but then Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by default if Landlord or its Affiliates in the southern New Jersey market area.
commences performance within such thirty (c30) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, days and thereafter Landlord may declare an Event of Default without affording Tenant any of diligently prosecutes the notice and cure rights provided under this Lease, (ii) Landlord shall not be required same to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20completion.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Digex Inc/De)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22 (c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22 (c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the such default cannot shall reasonably be cured within 30 take more than thirty (30) days following Landlord’s giving of noticeto cure, Tenant shall be afforded have such additional reasonable time (not to exceed 45 days following Landlord’s notice) as is reasonably necessary to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord▇▇▇▇▇▇▇▇’s notice and thereafter continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any involuntary proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days. The occurrence of any of the foregoing with respect to any Guarantor shall also constitute an Event of Default by Tenant.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord▇▇▇▇▇▇▇▇’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant ▇▇▇▇▇▇ agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It shall be an “Event of Default”:
(i) i. If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business five (5) days after Landlord gives Tenant notice of defaultdefault (a “Monetary Event of Default”);
(ii) . If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) . If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 twenty (20) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 twenty (20) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 sixty (60) days following Landlord▇▇▇▇▇▇▇▇’s notice) to cure the default if Tenant begins to cure the default within 30 twenty (20) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) . If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) i. Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) . To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord▇▇▇▇▇▇▇▇’s option, make Alterations and repairs in order to relet re-let the Premises and relet re-let all or any part(s) of the Premises for Tenant’s account. Tenant ▇▇▇▇▇▇ agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingre-letting. In the event of reletting re-letting without termination of this 126390.00400/118481426v.4 04/15/2019 05:55 A4P4 Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) . To accelerate the whole or any part of the Rent for the balance of the Term, and declare the present value of the same to be immediately due and payable;; and
(iv) . To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive twelve (12-) month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant▇▇▇▇▇▇’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant ▇▇▇▇▇▇ waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall use commercially reasonable efforts to relet the Premises following ▇▇▇▇▇▇'s vacation of the Premises and ▇▇▇▇▇▇'s returning the Premises to the condition required at the time of the expiration of this Lease and to otherwise mitigate Landlord's damages under the Lease; provided, however, that Landlord shall be under no duty to market or relet the Premises prior to leasing other available space in the Building and, in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting.
Appears in 1 contract
Sources: Lease Agreement (Penumbra Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c25(c) below, Tenant fails to cure such default on or before the date that is 5 business ten (10) days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 21 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c25(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 ten (10) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 ninety (90) consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remediesremedies provided same are exercised in accordance with applicable Laws:
(i) Landlord, without any obligation to do so, may upon fourteen (14) days prior written notice (except in emergency) to Tenant elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken.
(c) If Landlord elects to accelerate Rent pursuant to Section 23(b)(iii) above, Landlord shall be entitled to recover the following amounts (reduced by the amount of loss of Rent that Tenant proves could be reasonably avoided):
(i) The worth at the time of award of any unpaid Rent and other charges which has been earned at the time of such termination; andplus
(ii) The worth at the time of award of the amount of any Rent and other charges which would have been earned after termination until the award; plus
(iii) The worth at the time of award of the amount of any unpaid Rent and other charges which Tenant would have paid for the balance of the Term after the time of award; plus
(iv) 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 which in the ordinary course of things would be likely to result therefrom, including without limitation, any costs or expenses incurred by Landlord in (a) maintaining or preserving the Premises after such default, (b) recovering possession of the Premises, including reasonable attorneys’ fees therefore, (c) expenses of reletting the Premises to a new tenant, including necessary renovations or alterations of the Premises, reasonable attorneys’ fees incurred, and leasing commissions incurred; plus
(v) Notwithstanding anything Such other amounts in addition to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in lieu of the foregoing as may be permitted from time to time by the laws of the State where the Project is located. As used in subparagraphs (i), (ii) and (iii) above, the “worth at the time of award” is computed by allowing interest on unpaid amounts at the rate of 6.0% per annum. For purposes of this Section 25, all Rent other buildings owned than Minimum Annual Rent, shall, for purposes of calculating any amount due under the provisions of subparagraph (iii) above, be computed on the basis of the average monthly amount of Rent payable by Landlord or its Affiliates in Tenant during the southern New Jersey market areaimmediately preceding 36 month period, except that if it becomes necessary to compute such rental before such 36 months of the Term expired, then such Rent shall be computed on the basis of the average monthly amount of Rent payable during such shorter period.
(cd) Any provision to the contrary in this Section 22 25 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a25(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b25(b) if Tenant fails to comply with the provisions of Section 27 Sections 16, 32 or 23 in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(de) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(ef) Notwithstanding anything to the contrary contained herein, Landlord shall make reasonable effort to mitigate its damages to the extent required under applicable Laws; provided that if, after the date hereof, the Laws shall change so that Landlord shall not be required to perform any mitigation of its damages, following repossession of the Premises, Landlord agrees to make commercially reasonable efforts to re-let the Premises at such rates and under such terms as are then commercially reasonable.
(g) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(fh) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Shutterfly Inc)
Defaults Remedies. (a) It shall be an “Event of Default” following the expiration of all applicable notice and cure periods set forth below:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 five (5) business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant written notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 ninety (90) days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or;
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days; or
(v) If Tenant vacates any portion of the Premises for thirty (30) or more consecutive days, except in the event of casualty, condemnation, Force Majeure, or in connection with the performance of a permitted Alteration. Any notice periods provided for in this Lease shall run concurrently with any statutory notice periods and any notice sent hereunder may be sent simultaneously with or incorporated into any such statutory notice.
(b) If an Event of Default occurs, Landlord shall shall, at any time thereafter, with or without notice or demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default (with such remedies being cumulative and not exclusive), have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% ten percent (10%) thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter, re-enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, without terminating this Lease, and remove all persons and all or any propertyproperty from the Premises, by action at law or otherwise in accordance with law, without being liable for prosecution or damages, in which case Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease, including the right to recover the Rent and all other amounts due hereunder as they become due. Landlord may, at Landlord’s option, make Alterations alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. No re-entry or taking possession of the Premises by Landlord pursuant to this Section 22(b)(ii) or other action on Landlord’s part shall be construed as an election to terminate this Lease unless a written notice of such intention is sent to Tenant or unless the termination hereof is decreed by a court of competent jurisdiction. Landlord’s election not to terminate this Lease pursuant to this Section 22(b)(ii) or pursuant to any other provision of this Lease shall not preclude Landlord from subsequently electing to terminate this Lease or pursuing any of its other remedies;
(iii) To accelerate the whole or any part of the Rent for the balance of the TermTerm as provided in Section 22(b)(iv) below, along with all sums past due, and declare the same to be immediately due and payable. In determining the amount of any future payments due Landlord as a result of increases in Annual Operating Expenses, Landlord may make such determination based upon the amount of Annual Operating Expenses paid by Tenant for the full year immediately prior to such Event of Default;
(iv) To terminate this Lease and the Term by any lawful means without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything , in which case Tenant shall promptly surrender possession of the Premises to the contrary in this LeaseLandlord. In such event, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from Tenant all damages incurred by Landlord by reason of Tenant’s Event of Default including, but not limited to, the other party cost of recovering possession of the Premises; expenses of re-letting, including necessary renovation and alteration of the Premises, reasonable attorneys’ fees, costs and any real estate commission actually paid; the “worth at the time of suitaward” established by the court having jurisdiction thereof of the amount by which the unpaid rent and other charges due for the balance of the Term after the time of Tenant’s default exceeds the amount of such rental loss for the same period that Tenant proves by clear and convincing evidence could have been reasonably avoided; and that portion of any leasing commission paid by Landlord, investigation expenses if any, applicable to the unexpired Term of this Lease (which shall be calculated based on the assumption that any leasing commission applicable to the Term would have been evenly and discovery costsequally amortized in monthly payments over the number of months contained in the Term at an interest rate of seven percent (7%) per annum). For purposes of this Section 22(b)(iv), including costs “worth at the time of appeal.
award” of the amount referred to above shall be computed by discounting each amount by a rate equal to the Prime Rate at the time of the award plus three percent (f) Landlord and Tenant waive the right to a trial by jury 3%), but in any action or proceeding based upon or related tono event more than an annual rate of ten percent (10%). As used herein, the subject matter of this Lease.“Prime Rate” means the then current prime rate published in the Wall Street Journal provided, however, if the Wall Street Journal no longer publishes a prime rate then the Prime Rate shall be an equivalent rate established by a financial institution or financial publication designated by Landlord;
Appears in 1 contract
Sources: Lease Agreement (Ocugen, Inc.)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 five (5) business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other material provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% ten percent (10%) thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make reasonable Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;14 QB\129138.00037\24864053.9
(iii) To Subject to Landlord’s good faith obligation to mitigate damages to the extent imposed under applicable Laws, to accelerate the whole or any part of the Rent for the balance of the Term, Term and declare the same to be immediately due and payable;, and for purposes of acceleration of Annual Operating Expenses, the amount to be accelerated shall be based upon the assumption that Annual Operating Expenses for each Lease Year of the balance of the Term would be equal to the amount of Annual Operating Expenses which were payable by Tenant in the Lease Year immediately preceding the acceleration); provided, however, Tenant shall have the right, in any judicial proceedings brought to collect same, to assert a credit for the fair rental value of the Premises for the balance of the Term, Tenant to have the burden of proving such credit. The fair rental value of the Premises shall be net of the costs which would be reasonably incurred by Landlord in releasing the Premises, including without limitation, reasonable demolition and fit-out costs, brokerage commissions and legal fees and expenses. The amount determined to be payable to Landlord hereunder shall be reduced to present value at the rate of six percent (6%) per annum at the time of actual payment; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(ca) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(db) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(ec) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.15 QB\129138.00037\24864053.9
(fd) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(e) Landlord shall not be in default under this Lease unless Landlord fails to commence performance of the obligations required of Landlord within thirty (30) days after receipt of written notice by Tenant to Landlord specifying that Landlord has failed to perform such obligation, provided, however, that if the nature of Landlord’s obligation is such that more than the specified cure period is required for performance, then Landlord shall not be in default if Landlord commences performance within the specified cure period and thereafter diligently prosecutes the same to completion. In the event Landlord does not commence performance within the period provided herein, then, upon not less than five (5) days additional prior written notice from Tenant to Landlord after the end of the cure period that Tenant intends to perform the obligation on Landlord’s behalf, Tenant shall have the right, but not the obligation, to take such action as is reasonably necessary under the circumstances to perform such obligation. All work done in accordance herewith must be performed at a reasonable and competitive cost and expense (taking into account the circumstances of the obligation). To the extent such work performed by Tenant is Landlord’s responsibility under this Lease, Landlord shall reimburse Tenant, within thirty (30) days after Landlord’s receipt of a reasonably documented invoice therefor, for any reasonable sums paid or reasonable costs incurred by Tenant in curing the default (together with an administrative fee of ten percent (10%) thereof), plus interest at the Interest Rate from the respective dates of Tenant’s incurring such costs.
Appears in 1 contract
Sources: Lease Agreement (Wageworks, Inc.)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due within ten (10) days of written notice any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice installments of default;Base Rent; or
(iib) If Tenant enters into does not pay in full within ten (10) days of written notice any payment of additional rent or permits any Transfer in violation of Section 18 above;other charges or payments whether or not herein included as rent, or
(iiic) If Tenant violates or fails to observe and perform or otherwise breaches any other provision of this Leaseagreement, and, except as provided in Section 22(c) below, Tenant fails to covenant or condition herein contained and does not cure the default on or before the date that is 30 within 15 days after written notice from Landlord gives or within a reasonable period after such notice if Tenant notice of default; provided, however, if the default demonstrates to Landlord's satisfaction that cure cannot reasonably be cured completed within 30 days following Landlord’s giving of notice, such period and Tenant shall be afforded additional reasonable time (not is diligently proceeding to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the defaultcure; or
(ivd) If Tenant becomes insolvent or bankrupt in any sense or makes a general an assignment for the benefit of creditors or of offers a composition or settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law act is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver receiver, trustee, liquidator, custodian, conservator or similar official for any of Tenant’s assets is commenced's assets, or if any of the real or personal property of Tenant shall be levied uponupon by any sheriff, marshal or constable and does not cure within 30 days after written notice from landlord; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.or
(be) If an Event Tenant transfers assets in excess of Default occursa sixty percent (60%) of its assets, such transfer shall constitute a default hereunder unless, prior to such transfer, the Tenant shall cause all recipients of its assets to execute a guaranty agreement in form acceptable to the Landlord, obligating such transferee (on a primary basis with the Tenant and all other obligors) to pay all obligations of Tenant arising under this lease;
(f) Failure to make payments under the Promissory Note; which Promissory Note is described in Paragraph 47 below and which is attached hereto as Exhibit I, after any applicable cure and grace period. Then, in any such event, Landlord shall have the following rights and remediesrights:
(i) Landlord1. To re-enter the Premises and repossess and enjoy the Premises, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the defaultall additions, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums alterations and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter improvements and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and to remove all persons and all or any propertyproperty therefrom. Upon recovering possession of the Premises by reason or based upon or arising out of a default on the part of Tenant, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s 's option, either terminate this lease or make Alterations such alterations and repairs as may be necessary in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of 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 Rent for period which would otherwise have constituted the balance of the Term, term of this lease and declare the same at such rent or rents and upon such other terms and conditions as Landlord may decide. If such rentals received from such reletting during any month shall be less than that to be immediately due paid during that month by Tenant hereunder, Tenant shall pay any deficiency to Landlord. Such deficiency shall be calculated and payable;paid monthly.
(iv) 2. To terminate this Lease lease and the Term term hereby created without any right on the part of Tenant to save waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything . Whereupon Landlord shall be entitled to recover, in addition to any and all sums and damages for violation of Tenant's obligations hereunder in existence at the time of such termination, damages for Tenant's default in an amount equal to the contrary in amount of the rent reserved for the balance of the term of this Leaselease, Landlord as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant, all of which amount shall use commercially reasonable efforts be immediately due and payable from Tenant to relet the Premises in order to mitigate its damages hereunder, but Landlord. Landlord shall not be required entitled to prefer exercise its rights under this subparagraph 2. until the Premises over other space available for lease in earlier of the Building following to occur
(i) the first default under (d) or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area(e) above.
(ii) the first default under (a), (b) or (c) Any provision to above during the contrary in term of this Section 22 notwithstanding, Lease not cured by Tenant within thirty (i30) Landlord shall not be days of any required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and notice.
(iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of in any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent dueevent, or Landlord’s right to pursue any other available remedy.
the third default under (eb) If either party commences an action against or (c) above during the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter term of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Tsi Telsys Corp)
Defaults Remedies. Section 14.01. If, during the Term, any one or more of the following acts or occurrences (a) It shall be any one of such occurrences or acts being hereinafter called an Event of Default) shall happen:
(iA) The Tenant shall default in making any payment of Term Basic Rent or any Additional Rent as and when the same shall become due and payable, and such default shall continue for a period of ten (10) days after notice from the Landlord that such payment is due and unpaid; or
(B) The Tenant shall default in the performance or if compliance with any of the other covenants, agreements, terms or conditions of this Lease to be performed by the Tenant (other than any default curable by payment of money) , and such default shall continue for a period of twenty (20) days after written notice thereof from the Landlord to the Tenant, or, in the case of a default which cannot with due diligence be cured within twenty (20) days, the Tenant shall fail to proceed promptly (except for unavoidable delays) after the giving of such notice and with all due diligence to cure such default and thereafter to prosecute the curing hereof with all due diligence (it being ii~tended that as to a default not susceptible of being cured with due diligence within twenty (20) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence) ; or
(C) Tue Tenant or any guarantor of this Lease shall tile a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment or similar relief under any present or future bankruptcy or other applicable law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of the Tenant or any guarantor of this Lease or of all or any substantial part of its properties or of all or any part of the Demised Premises; or
(D) If within sixty (60) days after the filing of an involuntary petition in bankruptcy against the Tenant does or any guarantor of This Lease, or the commencement of any proceeding against the Tenant or such guarantor- seeking any reorganization, composition, readjustment or similar relief under any law, such proceeding shall not pay have been dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the Tenant or such guarantor, of any trustee, receiver or liquidator of the Tenant or such guarantor, or of all or any part of the Demised Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within .sixty (60) days after the expiration of any such stay, such appointment shall have been vacated, or if, within sixty (60) days after the taking possession, without the consent or acquiescence of the Tenant or such guarantor, of the property of the Tenant, or of such guarantor by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of the Tenant or such guarantor, such taking shall not have been vacated or stayed on appeal or otherwise; or
(E) If the Demised Premises shall be abandoned by the Tenant for a period of thirty (30) consecutive days, then, and ii) any such event, and during the continuance thereof, the Landlord may, at its option, then or thereafter while any such~ Event of Default shall continue and notwithstanding the fact that the Landlord may have any other remedy hereunder or at law or in full when due any equity, by notice to the Tenant, designate a date, not less than ten (10) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the Term of this Lease and the estate hereby granted shall expire and terminate upon the date specified in such~notice with the same force and effect as if the date specified in such notice was the date hereinbefore fixed for the expiration of the Term of this Lease, and all Rent andrights of the Tenant hereunder shall expire and terminate, except but the Tenant shall remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as Additional Rent, all attorney's fees and other expenses incurred by the Landlord in enforcing any of the obligations under this Lease, this covenant to survive the expiration or sooner termination of this Lease.
Section 14.02. If this Lease is terminated as provided in Section 22(c) below14.01, or as permitted by law, the Tenant fails shall peaceably quit and surrender the Demised Premises to cure the Landlord, and the Landlord may, without further notice, enter upon, re-enter, possess and repossess. the same by summary proceedings, ejectment or other legal proceedings, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such default on event neither the Tenant nor any person claiming tI~rougki or before under the date that is 5 business days after Landlord gives Tenant notice by virtue of default;
(ii) If Tenant enters into any law or permits an order of any Transfer court shall be entitled to possession or to remain in violation possession of Section 18 above;
(iii) If Tenant fails to observe the Demised Premises, and perform or otherwise breaches the Landlord, at its option, shall forthwith, notwithstanding any other provision of this Lease, andbe entitled to recover from the Tenant (in lieu of all other claims for damages on account of such termination) as and for liquidated damages an amount equal to the excess of all Term Basic Rent and Additional Rent reserved hereunder for the unexpired portion of the Term of this Lease discounted at the rate of six (6%) percent per annum to the then present worth, except over the fair rental value of the Demised Premises at the time of termination for such unexpired portion of the Term. Nothing herein contained shall limit or prejudice the right of the Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and obtain as liquidated damages by reason of such termination for such amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency proceedings, or to prove for and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above.
Section 14.03. If the Landlord re-enters and obtains possession of the Demised Premises, as provided in Section 22(c) below14.02 of this Lease, fol~owing an Event of Default, the Landlord shall have the right, without notice, to repair or alter the Demised Premises in such manner as the Landlord may deem necessary or advisable so as to put the Demised Premises in good order and to make the same rentable, and shall have the right, at the Landlord's option, to relet the Demised Premises or a part thereof, and the Tenant fails shall pay to cure the default Landlord on demand all reasonable expenses incurred by the Landlord in obtaining possession, and in altering, repairing and putting the Demised Premises in good order and condition and in reletting the same, including reasonable fees of attorneys and architects, and all other reasonable expenses or before commissions, and the Tenant shall pay to the Landlord upon (he rent payment dates following the dare of such re-entry and including the date that is 30 days after for the expiration of the Term of this Lease in effect immediately prior to such re-entry, The sums of money which would have been payable by the Tenant as Term Basic Rent and Additional Rent hereunder on such rent payment dates if the Landlord gives Tenant notice had not re-entered and resumed possession of default; providedthe Demised Premises, howeverdeducting only the net amount of Term Basic Rent and Additional Rent, if any, which the default cannot reasonably be cured within 30 days following Landlord’s giving Landlord shall actually receive (after deducting from the gross receipts the expenses, costs and payments of noticethe Landlord which in accordance with rite terms of this Lease would have been borne by the Tenant) in the meantime from and by any reletting of the Demised Premises, and the Tenant shall remain liable for all sums otherwise payable by the Tenant under this Lease, including but not limited to the expense of the Landlord aforesaid, as well as for any deficiency aforesaid, and the Landlord shall have the right from time to time to begin and maintain successive actions or other legal proceedings against the Tenant for the recovery of such deficiency, expenses or damages or for a sum equal to any Term Basic Rent payment and Additional Rent. As an alternative remedy, the Landlord shall be afforded additional reasonable entitled to damages against the Tenant for breach of this lease, at any time (whether or not the Landlord shall have become entitled to exceed 45 days following Landlord’s noticeor shall have received any damages as herinabove) Provided) in an amount equal to cure the default excess if Tenant begins to cure any, of the default within 30 days following Landlord’s notice Term Basic Rent and continues diligently in good faith to completely cure Additional Rent which would be payable under this Lease at the default; or
date of the expiration of the Terri, less (iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a lie am▇▇▇▇ in equity of Term Basic Rent and Additional Rent received by the Landlord upon any reletting, both discounted to present worth at the rate of six (6%) percent per annum. The obligation and liability of the Tenant to pay the Term Basic Rent and the Additional Rent shall survive the commencement, prosecution and termination of any action to secure possession of rite Demised Premises. Nothing herein contained shall be deemed to require the Landlord to wait to begin such action or other proceeding for legal proceedings until the appointment date when this Lease would have expired had there not been an Event of a receiver for Default.
Section 14.04. The Tenant hereby waives all right of redemption to which the Tenant or any person under it may be entitled by any law now or hereafter in force. In addition, in the event of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event which results in the Landlord recovering possession of Default occursthe Demised Premises, Landlord shall have the following rights and remedies:be under no duty to mitigate Tenant's damages as provided for in this Article XIV. The Landlord's remedies hereunder are in addition to any remedy allowed by law
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingSection 14.05. In the event of reletting without termination any breach or threatened breach by Tenant of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Termagreements, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due terms, covenants or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary conditions contained in this Lease, Landlord shall use commercially reasonable efforts be entitled to relet enjoin such breach or threatened breach and shall have the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No invoke arty right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing allowed at law or in equityequity or by statute or otherwise as though re-entry, summary dispossess proceedings, arid other remedies were not provided for in this Lease. No payment by Tenant or receipt or acceptance During the pendency of any proceedings brought by Landlord to recover possession by reason of a lesser amount than the total amount due Landlord under this Lease default, Tenant shall be deemed continue all money payments required to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfactionmade to Landlord, and Landlord may accept such check payments for use and occupancy of the Demised Premises. In such event, Tenant waives its right in such proceedings to claim as a defense that the receipt of such money payments by Landlord constitutes a waiver by Landlord of such default.
Section 14.06. If Tenant fails, on three (3) separate occasions in any twelve (12) month period during the Term hereof, to make payment of the Monthly Basic Rent and/or any Additional Rent and/or late charge on or before the due date, then, whether or not Tenant ultimately takes and Landlord accepts the required payment without prejudice to after the due date, such failure shall entitle Landlord’s right to recover the balance of Rent due, upon or Landlord’s right at any time after such third (3rd) separate occasion, to pursue any other available remedythe remedies provided in this Article, said circumstances being hereby declared a default no longer susceptible of being cured or removed by Tenant.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. If any of the following (each, an “Event of Default”) shall occur:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full within five (5) business days written notice (provided that such notice shall not be required more than two (2) times in any twelve (12) month period) when due any and all installments of rent (whether Fixed Rent and, except or additional rent) or any other charge or payment whether or not herein included as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of defaultrent;
(iib) If Tenant enters into violates or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches comply with any other provision of this Leasenon-monetary covenant, andagreement or condition herein contained, except as provided in Section 22(cand such failure is not cured within thirty (30) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of defaultfrom Landlord; provided, provided however, if the default Tenant’s failure to comply cannot reasonably be cured within 30 days following Landlord’s giving of noticethirty (30) days, Tenant shall be afforded allowed additional reasonable time (not to exceed 45 days following Landlord’s noticeninety (90) additional days) as is reasonably necessary to cure the default if failure so long as Tenant begins the cure within thirty (30) days and diligently pursues the cure to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the defaultcompletion;
(c) Intentionally omitted; or
(ivd) If An involuntary case under the federal bankruptcy law as now or hereafter constituted is commenced against Tenant becomes 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 appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or 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 involuntary case or petition is not dismissed within ninety (90) days after the filing thereof, of if Tenant or a Guarantor commences a voluntary case or institutes proceedings to be adjudicated as bankrupt or insolvent or consents to the entry of an order for relief under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Tenant or a Guarantor of any substantial part of Tenant’s or a Guarantor’s property, or if Tenant or any Guarantor makes a general any assignment for the benefit of creditors or offers a settlement admits in writing its inability to creditorspay its debts generally as they become due or if Tenant is levied upon and is about to be sold out upon the Premises by any sheriff, marshal or constable, or if Tenant or any Guarantor is a petition corporation and is dissolved or liquidated, Then, and in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenantsuch event, or a ▇▇▇▇ in equity or other proceeding for at the appointment sole option of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:Landlord,
(i) The whole balance of rent and all other sums payable hereunder for the entire balance of the term of this Lease, herein reserved or agreed to be paid by Tenant, or any part of such rent, charges and other sums, discounted to present value at a rate of six percent (6%) 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, without any obligation in addition to do soLandlord’s other remedies, may elect recover from Tenant a judgment for damages equal to cure the default on behalf 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 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 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 event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus would have become due interest at the Lease Interest Rate from the respective dates such rent was or would have become due to the date of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;judgment; and/or
(iiiii) To enter Landlord may terminate Tenant’s right of possession and may reenter and repossess the Premises lawfullyby legal proceedings, force or otherwise, as allowed by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution terminating this Lease. After reentry or damages. retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, at Landlord’s optionbut shall be under no obligation to, make Alterations such alterations and repairs in order repairs, as Landlord may deem then necessary or advisable to relet the Premises and relet all or any part(s) 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 this Lease, of rent and all other sums payable under this Lease, plus the reasonable and actual costs 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, after Landlord’s delivery to Tenant of written notice of default and the passing of any applicable cure periods, 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 for or any parts thereof and Landlord shall apply such rents to Tenant’s accountunpaid rental obligations under this Lease. Tenant agrees to pay to Landlord on demand Notwithstanding any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Leasetermination, Landlord may at any time thereafter elect to terminate this Lease for Tenant’s previous Event of Default. Whenever Landlord shall have the right to reenter the Premises under this Lease, it shall have the right to remove all persons and property from the Premises and either treat such previous breach;
(iii) To accelerate 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 or any part balance of rent and all other sums payable hereunder for the entire balance of the Rent 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, and declare term after the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without date of judgment,” as such quoted or any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary similar phrases are used in this LeaseArticle 21, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event amounts of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount additional rents which would have been due Landlord per year under this Lease shall be deemed such amounts as Landlord shall reasonably estimate to be other than 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 accountthe first day of each calendar year thereafter at the rate of six percent (6%) per annum compounded. The parties recognize that no adequate remedy at law may exist for a breach of Articles 6, nor shall any endorsement or statement on any check or payment be deemed an accord 7 and satisfaction10 hereof. Accordingly, and Landlord may accept obtain specific performance of any provision of Articles 6, 7 and 10 hereof. Neither such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue 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 remedy.
(e) If either party commences an action against the other party arising out of or under this Article 21. The reference herein to specific performance in connection with this LeaseArticles 6, 7 and 10 shall not preclude the prevailing party shall be entitled to have and recover from the other party attorneys’ feesavailability of specific performance, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action appropriate case, for the breach or proceeding based upon or related to, the subject matter threatened breach of any other provision of this Lease.. In addition to other remedies available to Landlord herein, Landlord may (but shall not be obligated to do so), cure any uncured Event of Default on behalf of Tenant, and Tenant shall reimburse Landlord within thirty (30) days of receipt of written demand for all reasonable costs actually incurred by Landlord in curing such default, including, without limitation, reasonable attorneys’ fees and other legal expenses, together with interest thereon at the Lease Interest Rate, 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 (Trevena Inc)
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease of Tenant:
(a) It The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due. Tenant shall be entitled to one written notice of late payment from Landlord per year before such an Event event shall constitute a default, provided Tenant makes payment within 10 days after receipt of Default:said notice.
(ic) If The failure by Tenant does to observe or perform any of the convenants, conditions or provisions of this Lease to be observed or performed by Tenant other than described in Paragraph (b) hereinabove, where such failure shall continue for a period of five (5) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of the Tenant's default is such that more than five (5) days are reasonably required for its cure, then Tenant shall not pay be deemed to be default if Tenant commences such cure within said five (5) day period and thereafter, diligently prosecutes such cure to completion.
(d) The making by Tenant of any general assignment or general arrangement for the benefit of creditors, filing by or against Tenant under any law relating to bankruptcy (unless in full when due the case of a petition filed against Tenant, the same is dismissed within sixty (60) days, the appointment of a Trustee or receiver to take possession of substantially all of the Tenant's assets located in the Premises or the Tenant's interest in this Lease where possession is not restored to Tenant within thirty (30) days or the attachment, execution of other judicial seizure of substantially all Tenant's assets located at the premises or Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days. In the event of such material default or breach by Tenant, Landlord may at any and all Rent andtime hereunder, except as provided with or without notice or demand, without limiting Landlord in Section 22(c) below, Tenant fails the exercise of any other right or remedy which Landlord may have hereunder or pursuant to cure applicable law by reason of such default or breach, proceed in the following manner: Notwithstanding that Landlord prior to such breach or default shall have received rent or any payment, however designated, for the use of the Premises from or on behalf of Tenant or before from any other person and regardless of and notwithstanding the date fact that is 5 business days Landlord has or may have some other remedy under this Lease or by virtue hereof or by law or in equity, Landlord may immediately or at any time after Landlord gives any of such breach or default give to Tenant a notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision termination of this Lease, and, except upon the giving of such notice, this Lease and the term and estate hereby granted shall expire and terminate upon the day so specified in such notice as provided in Section 22(c) below, Tenant fails to cure fully and completely and with the default on or before same force and effect as if the day so specified were the date that is 30 days after Landlord gives hereinbefore fixed for the normal expiration of the term of this Lease and all rights of Tenant notice of default; providedunder this Lease shall expire and terminate, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, but Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being remain liable for prosecution or damagesdamages as hereinafter provided. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or Upon any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Tenant shall peaceably quit and surrender the Premises to Landlord, and Landlord may, without further notice, enter upon, re-enter, possess and repossess itself thereof, by force, summary proceeding, ejectment, unlawful detainer, or otherwise, and may at any time thereafter elect dispossess and remove Tenant and all other persons and property from the Premises, and may have, hold and enjoy the Premises and the right to terminate receive all rental and other income and other income of and from the same. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease. It is convenanted and agreed by Tenant that in the event of the termination of this Lease for such previous breach;
(iii) To accelerate the whole or of re-entry by Landlord, under any part provisions of the Rent for the balance this Section or pursuant to law by reason of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right default hereunder on the part of Tenant, Tenant will pay to save Landlord, as damages, at the forfeiture by payment election of any sum due or by other performance of any conditionLandlord, term or covenant broken; and
(v) Notwithstanding anything sums equal to the contrary in basic rental, additional rental and any other sums which would have been payable by Tenant has this LeaseLease not so terminated, payable upon the days specified herein following such termination or such re-entry and until the date hereinabove set for the normal expiration of the full term hereby granted, provided, however, that if Landlord shall re-let the Premises during said period (it being understood that Landlord has no obligation to do so), Landlord shall use commercially reasonable efforts to relet credit Tenant with the net rents, if any, received by Landlord from such re-letting, the expenses incurred or paid by Landlord in terminating this Lease or of re-entering the Premises in order to mitigate its damages hereunderand of securing possession thereof, but Landlord shall not be required to prefer as well as the expenses of re-letting, including altering and preparing the Premises for new tenants, brokers' commissions and all other expenses chargeable against the Premises and the rental therefrom; but in no event shall Tenant be entitled to receive any excess of such net rents over other space available the sums otherwise payable by Tenant to Landlord hereunder. Suit or suits for lease in the Building recovery of such damages, or in other buildings owned any installments thereof, may be brought by Landlord or from time to time at its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month periodelection, and thereafter nothing contained herein shall be deemed to require Landlord may declare an Event to postpone suit until the date when the term of Default without affording Tenant any of the notice and cure rights provided this Lease would have expired if it had not been terminated under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 this paragraph, or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the under any provisions of Sections 13 law, or 20.
(d) No waiver by had Landlord not re-entered the Premises. Landlord shall also be entitled to collect from Tenant any reasonable attorney's fees arising out of any breach by Tenant Tenant's default hereunder. Landlord shall also be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect entitled to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to other remedies as may be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing available at law or in equity. No payment equity in the event of default by Tenant hereunder. Tenant, for Tenant, and on behalf of any and all persons claiming by, through or receipt under Tenant, including creditors of all kind, does hereby waive and surrender all right and privilege which they or acceptance any of them might have under or by Landlord reason of any present or future law to redeem the Premises or to have a lesser amount than the total amount due Landlord under continuance of this Lease shall be deemed to be other than on account, nor shall any endorsement for the term hereby demised after being dispossessed or statement on any check ejected therefrom by process of law or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover under the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter terms of this LeaseLease or after the termination of this Lease as herein provided.
Appears in 1 contract
Defaults Remedies. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Tenant:
(a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on The vacating or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any abandonment of the real or personal property of Premises by Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive sixty (60) days.
(b) If an Event The failure by Tenant to make any payment of Default occursrent or any other payment required to be made by Tenant hereunder, as and when due.
(c) The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant other than described in Paragraph 22(b) hereinabove, where such failure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of the Tenant's default if Tenant commences such cure within said ten (10) day period and thereafter, diligently prosecutes such cure to completion.
(d) The making by Tenant of any general assignment or general arrangement for the benefit of creditors, filing by or against Tenant of petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless in the case of a petition filed against Tenant, the same is dismissed within sixty (60) days), the appointment of a Trustee or receiver to take possession of substantially all of the Tenant's assets located in the Premises or the Tenant's interest in this Lease where possession is not restored to Tenant within thirty (30) days or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days. In the event of such material default or breach by Tenant, Landlord shall may, at any time hereunder, with or without notice or demand, without limiting Landlord in the exercise of any right or remedy which Landlord may have by reason of such default or breach, proceed in the following rights and remediesmanner:
(i) Landlord, without Terminate Tenant's right to possession of the Premises by any obligation to do so, may elect to cure the default on behalf of Tenantlawful means, in which event case Tenant's possession shall be terminated and Tenant shall reimburse immediately surrender possession of the Premises to the Landlord. In such event, Landlord upon demand for any sums paid or costs shall be entitled to recover from Tenant all damages incurred by Landlord (together with an administrative fee by reason of 15% thereof) in curing the Tenant's default, plus including necessary renovation or alteration of the Premises; reasonable attorney's fees; any real estate commission actually paid; that portion of the Lease and commission paid by Landlord pursuant to Agency agreement hereinafter stated applicable to the unexpired term of this Lease; and such other out-of-pocket expenses as the Landlord might incur. Unpaid installments of rent or other sums shall bear interest from date due at the Interest Rate from rate of twelve percent (12%) per annum, after the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;Tenant's right to possession has been terminated.
(ii) To enter and repossess Maintain Tenant's right to possession in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingPremises. In the event such event, Landlord shall be entitled to enforce all of reletting without termination of Landlord's rights and remedies under this Lease, Landlord may at any time thereafter elect including the right to terminate this Lease for such previous breach;recover the rent as it becomes due hereunder.
(iii) To accelerate Pursue any other remedy now or hereafter available to Landlord under the whole laws or any part jurisdictional decisions of the Rent for state in which the balance of the Term, and declare the same to be immediately due and payable;Premises is located.
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be in default unless Landlord fails to perform obligations required of landlord within a reasonable time, but in no event, sooner than ten (10) days after written notice by Tenant to give Tenant Landlord specifying wherein Landlord has failed to perform such obligations; provided, however, that if the notice and opportunity to cure provided in Section 22(a) above nature of the Landlord's obligations such that more than twice in any consecutive 12-month periodten (10) days is required for performance, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) then Landlord shall not be required in default if Landlord commences performance within such ten (10) days and thereafter diligently prosecutes the same to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20completion.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(cwithin five (5) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant written notice (which notice may be in the form of default;a monthly payment letter).
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) . If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, solely by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) . Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) . No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) . If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) . Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease. ln the event of a Tenant Default and Tenant’s subsequent vacating of the Premises, Landlord shall use commercially reasonably efforts to mitigate its damages in connection therewith.
Appears in 1 contract
Defaults Remedies. (a) It shall be an “Event of Default”:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 five (5) business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 ten (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 ten (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 thirty (90 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 ten (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice periods provided for in this Lease shall run concurrently with any statutory notice periods and any notice given hereunder may be given simultaneously with or incorporated into any such statutory notice.
(b) If an Event of Default occurs, Landlord shall shall, at any time thereafter, with or without notice or demand and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default (with such remedies being cumulative and not exclusive), have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of fifteen percent (15% %) thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter, re-enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, without terminating this Lease, and remove all persons and all or any propertyproperty from the Premises, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. , in which case Landlord may, at shall be entitled to enforce all of Landlord’s option, make Alterations rights and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided remedies under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with including the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any and all other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.amounts due hereunder as they become
Appears in 1 contract
Defaults Remedies. (a) It The following shall be an Event deemed to be “Events of Default” under this Agreement:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant Tasty fails to cure such default on or before the date that is 5 make any payment due under this Agreement within five (5) business days after Landlord gives Tenant of its receipt of notice of defaultthereof from Liberty;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant Tasty fails to perform or observe and perform or otherwise breaches any other provision obligation under this Agreement within ten (10) business days of this Leaseits receipt of notice thereof from Liberty, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 ten (10) business days following Landlord’s giving of Liberty's notice, Tenant Tasty shall be afforded additional reasonable time to cure the default (not to exceed 45 days following Landlord’s noticean additional one hundred Eighty (180) to cure the default days) if Tenant Tasty begins to cure the default within 30 ten (10) business days following Landlord’s Liberty's notice and continues diligently in good faith to completely cure the default; or;
(iii) The occurrence of any other event identified as an Event of Default under this Agreement;
(iv) If Tenant Tasty becomes insolvent or bankrupt in any sense or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against TenantTasty, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s Tasty's assets is commenced, or if any of the real or re▇▇ ▇r personal property of Tenant Tasty shall be levied uponupon in connection with such insolvency or bankruptcy proceeding; provided that any proceeding brought by anyone other than Landlord Liberty or Tenant Tasty under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days;
(v) If Tasty enters in to or permits a Transfer in violation of Paragraph 10 below; or
(vi) The occurrence of an Event of Default under the Lease.
(b) If an Event of Default occursoccurs under this Agreement, Landlord Liberty shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent Monthly Payment Amounts due for the balance of the TermTerm of this Agreement, and declare the same to be immediately due and payable;
(ivii) To terminate this Lease and draw upon the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due LC, in whole or by other performance of any condition, term or covenant broken; andin part;
(viii) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over To exercise any other space rights available for lease in the Building at law or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market areaequity. IN ADDITION TO THE RIGHTS AND REMEDIES PROVIDED ABOVE, IF AN EVENT OF DEFAULT OCCURS RELATING TO TASTY’S NON-PAYMENT OF ANY AMOUNT DUE HEREUNDER, TASTY HEREBY AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TASTY AND TO CONFESS JUDGMENT AGAINST TASTY, AND IN FAVOR OF LIBERTY, FOR ALL RENT DUE HEREUNDER PLUS COSTS AND AN ATTORNEY'S COLLECTION COMMISSION EQUAL TO THE GREATER OF 10% OF ALL AMOUNTS DUE HEREUNDER OR $1,000, FOR WHICH THIS AGREEMENT OR A TRUE AND CORRECT COPY HEREOF SHALL BE GOOD AND SUFFICIENT WARRANT. TASTY UNDERSTANDS THAT THE FOREGOING PERMITS LIBERTY TO ENTER A JUDGMENT AGAINST TASTY WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TASTY, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TASTY AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LIBERTY MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TASTY IS LOCATED TO SEIZE TASTY'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TASTY REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LIBERTY CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TASTY BY ANOTHER ENTITY, LIBERTY CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LIBERTY IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LIBERTY AGAINST TASTY, PLUS THE COSTS OF THE EXECUTION. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF THE SUMS DUE HEREUNDER SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OF THIS AGREEMENT. THE WARRANT TO CONFESS JUDGMENT SET FORTH ABOVE SHALL CONTINUE IN FULL FORCE AND EFFECT AND BE UNAFFECTED BY AMENDMENTS TO THIS AGREEMENT OR OTHER AGREEMENTS BETWEEN LIBERTY AND TASTY EVEN IF ANY SUCH AMENDMENTS OR OTHER AGREEMENTS INCREASE TASTY'S OBLIGATIONS. TASTY WAIVES ANY PROCEDURAL ERRORS IN CONNECTION WITH THE ENTRY OF ANY SUCH JUDGMENT OR IN THE ISSUANCE OF ANY ONE OR MORE WRITS OF EXECUTION OR GARNISHMENT THEREON. TASTY KNOWINGLY AND EXPRESSLY WAIVES ANY RIGHT WHICH TASTY MAY HAVE TO NOTICE AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TASTY'S PROPERTY OR THEREAFTER.
(c) Any provision to the contrary in this Section 22 6 notwithstanding, (i) Landlord Liberty shall not be required to give Tenant Tasty the notice and opportunity to cure provided in Section 22(aSubsection 6(a)(i) above more than twice in any consecutive 12-month period, and thereafter Landlord Liberty may declare an Event of Default without affording Tenant Tasty any of the notice and cure rights provided under this LeaseAgreement, and (ii) Landlord Liberty shall not be required to give such notice prior to exercising its rights under Section 22(bSubsection 6(a)(ii) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant Tasty fails to comply with the provisions of Sections 13 5 or 2010 or in an emergency. Notwithstanding the foregoing, Liberty shall provide Tasty with additional written notice at least thirty (30) days prior to exercising any confession of judgment against Tasty pursuant to Section 6; provided, however, that if Liberty elects to confess judgment without first accelerating the Monthly Payment Amounts, thereby requiring multiple confessions of judgment as Monthly Payment Amounts accrue, a single notice of such election delivered to Tasty at least thirty (30) days prior to the first such exercise of the confession of judgment shall suffice, and no further notices shall be required for subsequent confessions of judgment for Rent and attorney fees.
(d) No waiver by Landlord Liberty of any breach by Tenant Tasty shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord Liberty to seek a remedy for any breach by Tenant Tasty be a waiver by Landlord Liberty of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord Liberty to mitigate the damages caused by Tenant’s Tasty's default shall not constitute a waiver of Landlord’s Liberty's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord Liberty is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant Tasty or receipt or acceptance by Landlord Liberty of a lesser amount than the total amount due Landlord Liberty under this Lease Agreement shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord Liberty may accept such check or payment without prejudice to Landlord’s Liberty's right to recover the balance of Rent all amounts due, or Landlord’s Liberty's right to pursue any other available remedy.
(ei) Tasty shall pay upon demand all costs and expenses, including the reasonable fees and out-of-pocket expenses of counsel, agents and others retained by Liberty, incurred in enforcing Tasty's obligations hereunder or incurred by Liberty in any litigation, negotiation or transaction in which Tasty causes Liberty to become involved.
(ii) If either party commences an action against the other party arising out of or in connection with this LeaseAgreement, the prevailing party shall be entitled to have and recover from the other losing party reasonable attorneys’ ' fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(iii) Liberty shall pay upon demand all costs and expenses, including the reasonable fees and out-of-pocket expenses of counsel, agents and others retained by Tasty, incurred in enforcing Liberty’s obligations hereunder or incurred by Tasty in any litigation, negotiation or transaction in which Liberty causes Tasty to become involved.
(iv) Notwithstanding the foregoing, each of Liberty and Tasty shall pay the fees of its own counsel in negotiating this Agreement.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related toTASTY HEREBY AGREES TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COMMONWEALTH OF PENNSYLVANIA, the subject matter of this LeaseAND TASTY AGREES THAT ALL SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO TASTY, TO THE ATTENTION OF TASTY’S GENERAL COUNSEL, AT TASTY'S ADDRESS SET FORTH BELOW, AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED, PROVIDED THAT NOTHING CONTAINED HEREIN WILL PREVENT LIBERTY FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY OR AGAINST TASTY INDIVIDUALLY, OR AGAINST ANY PROPERTY OF TASTY WITHIN ANY OTHER STATE OR NATION TO ENFORCE ANY AWARD OR JUDGMENT OBTAINED IN THE VENUE PROVIDED ABOVE. TASTY WAIVES ANY OBJECTION TO VENUE AND ANY OBJECTION BASED ON A MORE CONVENIENT FORUM IN ANY ACTION INSTITUTED HEREIN, PURSUANT TO THE PROVISIONS HEREOF.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business ten (10) days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, and Tenant fails to cure the default on or before the date that is 30 thirty (30) days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 thirty (30) days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 sixty (60) days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 thirty (30) days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days. Any notice periods provided for in this Lease shall run concurrently with any statutory notice periods and any notice given hereunder may be given simultaneously with or incorporated into any such statutory notice.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any reasonable sums paid or reasonable attorneys’ fees and reasonable costs incurred by Landlord (together with an administrative fee of 1512% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To lawfully enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawfuljudicial process, and remove all persons and all or any property, by action at law law, using self-help without an action at law, or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To Subject to Section 22 (c) below, to accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;payable after discounting the same to present worth, against which Tenant shall be entitled to a credit equal to the present worth of such rental loss, if any, that Tenant affirmatively approves could reasonably be avoided by Landlord (with “present worth” being computed using a discount rate equal to one percentage point above the discount rate then in effect at the Federal Reserve Bank nearest to the location of the Building); and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and.
(vc) Notwithstanding anything to the contrary in If Landlord terminates Tenant’s right of possession (but not this Lease), Landlord shall use commercially reasonable efforts to relet the Premises in order for the account of Tenant for such rent and upon such terms as shall be satisfactory to mitigate its damages hereunderLandlord without thereby releasing Tenant from any liability hereunder and without demand or notice of any kind to Tenant; provided, but however (i) Landlord shall not be required obligated to prefer accept any prospective tenant proposed by Tenant, unless such proposed tenant meets all of Landlord’s standard leasing criteria and (ii) Landlord shall have the Premises over right to lease any other space available for lease in the Building or in other buildings owned controlled by Landlord or its Affiliates in the southern New Jersey market areafirst.
(cd) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20, or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(de) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(ef) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery and other litigation costs, including costs of appeal.
(fg) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 20 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 20 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days promptly following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes is adjudicated insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 157% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingreletting as the same would become due and payable under this Lease. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Intentionally Deleted.
(d) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above (provided that the notice period under Sections 13, 20 or 27 shall be 5 business days and the cure period shall not exceed such 5 business day period) more than twice four times in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(de) No waiver by Landlord either party of any breach by Tenant the other shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord either party to seek a remedy for any breach by Tenant the other party be a waiver by Landlord such forebearing party of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord either party to mitigate the damages caused by Tenantthe other party’s default shall not constitute a waiver of Landlordthe mitigating party’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord either party is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(ef) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party reasonable attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(fg) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(h) When this Lease and the Term or any extension thereof shall have been terminated on account of any default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. If for any reason after such action shall have been commenced it shall be determined and possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default(s) or upon the termination of this Lease or Tenant’s right of possession as herein set forth, to again confess judgment as herein provided, for which this Lease or a true and correct copy hereof shall he good and sufficient warrant.
(i) The warrants to confess judgment set forth above shall continue in full force and effect and be unaffected by amendments to this Lease or other agreements between Landlord and Tenant even if any such amendments or other agreements increase Tenant’s obligations or expand the size of the Premises.
Appears in 1 contract
Sources: Lease Agreement (Novavax Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of such default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 90 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occursoccurs and is continuing, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs reasonably incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates date of Landlord’s incurring such costsdemand for reimbursements, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To the extent permitted by law, to enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the then-current Term, discounted to present value at the rate equal to the 10 year United States Treasury Note, at the time of acceleration and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a22(a)(i) above more than twice in any consecutive 12-month period, and thereafter during such consecutive 12-month period, Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Leaseset forth in Section 22(a)(i), and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency13, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 20 or 2027 and Tenant fails to cure the default within five (5) days following Landlord’s giving of notice, it shall be an Event of Default and Landlord shall have the rights provided in Section 22(b) above.
(d) No waiver by Landlord a party of any breach by Tenant the other party shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord a party to seek a remedy for any breach by Tenant the other party be a waiver by Landlord a party of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord a party is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (INSMED Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 business days five (5) Business Days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 days ten (10) Business Days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days ten (10) Business Days following Landlord’s 's giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 ninety (90) days following Landlord’s 's notice) to cure the default if Tenant begins to cure the default within 30 days ten (10) Business Days following Landlord’s 's notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 sixty (60) consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s 's incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s 's option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s 's account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) In addition to the rights and remedies provided in Section 22(b) above, if an Event of Default occurs relating to Tenant's non-payment of the Rent due hereunder, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and to confess judgment against Tenant, and in favor of Landlord, for all Rent due hereunder plus costs and an attorney's collection commission equal to the greater of 10% of all Rent or $1,000, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of the Rent and other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial term of this Lease and during any extended or renewal term of this Lease and after the expiration of any extended or renewal term of this Lease. Initials on behalf of Tenant:_____
(d) Any provision to the contrary in this Section 22 notwithstandingnotwithstanding (other than the last sentence of this Section 22(d)), (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 13, 18, 20 or 2027 or in an emergency. Notwithstanding the foregoing, Landlord shall provide Tenant with additional written notice at least thirty (30) days prior to exercising any confession of judgment against Tenant pursuant to Section 22(c) or Section 22(h); provided, however, that if Landlord elects to confess judgment for Rent and attorney fees pursuant to Section 22(c) without first accelerating the Rent, thereby requiring multiple confessions of judgment as Rent accrues, a single notice of such election delivered to Tenant at least thirty (30) days prior to the first such exercise of the confession of judgment shall suffice, and no further notices shall be required for subsequent confessions of judgment for Rent and attorney fees.
(de) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s 's default shall not constitute a waiver of Landlord’s 's right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s 's right to recover the balance of Rent due, or Landlord’s 's right to pursue any other available remedy.
(ef) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party reasonable attorneys’ ' fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(fg) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(h) When this Lease and the Term or any extension thereof shall have been terminated on account of any default by Tenant, or when the Term or any extension thereof shall have expired, Tenant hereby authorizes any attorney of any court of record of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming by, through or under Tenant and to confess judgment against all such parties, and in favor of Landlord, in ejectment and for the recovery of possession of the Premises, for which this Lease or a true and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT A WRIT OF POSSESSION MAY BE
Appears in 1 contract
Sources: Lease Agreement (Tasty Baking Co)
Defaults Remedies. (a) It The occurrence of any or more of the following events shall be an Event constitute a material default and breach of Defaultthis lease by Tenant:
A. The vacating or abandonment of the premises by ▇▇▇▇▇▇ for thirty (i30) If consecutive days.
B. The failure by Tenant does not pay in full to make any payment of rent or any other payment required to be made by Tenant when due and payable.
C. The failure by ▇▇▇▇▇▇ to observe or perform any and all Rent andof the covenants, except as provided conditions, or provisions of this lease to be observed or performed by Tenant other than described in Section 22(cparagraph (b) below, Tenant fails to cure herein above where such default on or before the date that is 5 business failure shall continue for a period of thirty (30) days after written notice thereof from Landlord gives to Tenant, unless Tenant notice is diligently pursuing a cure.
D. The making by Tenant of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment or general arrangement for the benefit of creditors or offers a settlement to creditors, filing by or if against Tenant of petition to have Tenant adjudged a bankrupt, or a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is relating to bankruptcy (unless in the case of a petition filed by or against the Tenant, or a ▇▇▇▇ in equity or other proceeding for the same is dismissed within sixty (60) days), the appointment of a trustee or receiver to take possession of substantially all the Tenant's assets located in the premises or the Tenant's interest in this lease where possession is not restored to Tenant within thirty (30) days or the attachment, execution, or other judicial seizure of substantially all Tenant's assets located at the premises or Tenant's interest in this lease where such seizure is not discharged within thirty (30) days.
i. In the event the trustee of the Tenant shall make timely affirmance of this lease under the Bankruptcy Reform Act of 1978 and continues in the possession of the premises, it shall be the responsibility of the trustee to cure or make adequate assurance that all defaults under the provisions of this lease shall be promptly cured, to fully compensate or provide adequate assurance or compensation for any and all losses suffered by Landlord, and to provide adequate assurance that all conditions of Tenant’s assets this lease shall be performed in the future including, but not limited to, adequate assurance of payment of rent and other considerations due under this lease. In no event will Landlord be required to provide additional services or supplies under this lease unless fully compensated by the trustee. If this lease is commenced, assigned to any person or if any entity pursuant to the provisions of the real Bankruptcy Code, 11 U.S.C. S101 et seq. (The "Bankruptcy Code"), any and all monies or personal other considerations payable or otherwise to be delivered in connection with such assignment shall be paid or delivered to the Landlord, shall be and remain the exclusive property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcythe Landlord, insolvency, receivership or similar law and shall not constitute an Event the property of Default until such proceeding has continued unstayed the Tenant or the estate of the Tenant or the estate of the Tenant within the meaning of the Bankruptcy Code. Any and all monies or other considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in trust for more than 60 consecutive daysthe benefit of the Landlord and shall be promptly paid and/or delivered to the Landlord.
(b) If an Event ii. In the event that any new insolvency or receivership should occur after closing of Default occursthe bankruptcy case, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at its option and in addition to any other remedies available to Landlord’s option, make Alterations terminate this lease and repairs in order to relet the Premises and relet all or any part(s) rights of the Premises for Tenant’s account. Tenant agrees hereunder by giving to pay Tenant written notice of ▇▇▇▇▇▇▇▇'s election to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such relettingterminate.
iii. In the event of reletting without termination of this Leasesuch material default or breach by ▇▇▇▇▇▇, Landlord may may, at any time thereafter elect hereunder with or without notice of demand and without limiting Landlord in the exercise of any right or remedy which Landlord may have be reason of such default or breach, proceed in the following manner:
a. Terminate ▇▇▇▇▇▇'s rights to terminate this Lease for such previous breach;
(iii) To accelerate the whole or possession of premises by any part lawful means, in which case ▇▇▇▇▇▇'s possession shall be terminated and Tenant shall immediately surrender possession of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything premises to the contrary in this LeaseLandlord. In such event, Landlord shall use commercially reasonable efforts be entitled to relet the Premises in order to mitigate its recover from Tenant all damages hereunderincurred by Landlord by reason of Tenant's default including, but not limited to, the cost of recovering the premises; expenses of subletting including necessary renovations or alteration of the premises; attorney's fees; any real estate commissions actually paid, and any other out-of-pocket expenses the Landlord may incur. Unpaid installments of rent or other sums shall bear interest from date due at the rate of ten percent (10%) per annum compounded monthly after ▇▇▇▇▇▇'s right to possession has been terminated.
b. Maintain Tenant's right to possession in which case this lease shall continue in effect whether or not Tenant shall have abandoned the premises. In such event, Landlord shall be entitled to enforce all of Landlord's rights and remedies under this lease, including the right to recover the rent as. it becomes due hereunder.
c. Pursue any other remedy now or hereafter available to Landlord under the laws of the Commonwealth of Virginia.
d. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within thirty (30) days after written notice by Tenant to prefer Landlord specifying wherein Landlord has failed to perform such obligations, provided, however, that the Premises over other space available nature of the Landlord's obligation is such that more than thirty (30) days is required for lease in performance, then the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(adefault if Landlord commences performance within thirty (30) above more than twice in any consecutive 12-month period, days and thereafter diligently prosecutes the same to completion.
e. If Landlord may declare an Event of Default without affording Tenant is found to be liable for any monetary damages, any award under this lease agreement shall not exceed the dollar value of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with remaining value of the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20lease term.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Monterey Capital Acquisition Corp)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 20 days after Landlord gives Tenant written notice of default; provided, however, if the default cannot reasonably be cured within 30 20 days following Landlord’s giving of written notice, Tenant shall be afforded additional reasonable time (not to exceed 45 75 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 20 days following Landlord’s written notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 90 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or reasonable, out-of-pocket costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Landlord shall use commercially reasonable efforts to relet the Premises or any part thereof, alone or together with other premises, for such term or terms (which may include concessions or free rent and alterations to the Premises) as Landlord may determine, in its sole discretion, but Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished by reason of, any failure by Landlord to relet the Premises or any failure by Landlord to collect any rent due upon such reletting and Landlord shall not be required to re-let the Premises in preference to other space that it may have vacant;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;payable (such accelerated Rent amount shall be discounted using a discount factor equal to the yield of the Treasury Note or B▇▇▇, as appropriate, having a maturity period approximately commensurate to the remainder of the Term); and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 18 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party reasonable attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Sourcefire Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business 10 days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Notwithstanding any provision to the contrary contained herein, upon an Event of Default by Tenant and a subsequent eviction by Landlord, Landlord shall use commercially reasonable efforts to relet the Premises for a term or terms which may, at Landlord’s option, be less than or exceed the remaining Term hereof. Landlord does not necessarily agree to rent the Premises at its then fair market value if Landlord enters into a new lease agreement with respect to the Premises. The parties understand and agree that Landlord shall not be obligated to lease the Premises in any manner which is not in keeping with the type and caliber of tenants at the Building, nor shall Landlord be obligated to relet the Premises in preference to other vacant space in the Building;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;payable provided, however, that notwithstanding the foregoing or anything to the contrary contained elsewhere in the Lease, if Landlord obtains a judgment in the amount of the whole or any part of the Rent for the balance of the Term, such judgment shall recite the full lump sum amount but Tenant shall only be obligated under such judgment to pay the amount of Rent reserved under this Lease at the times stipulated for payment of the same in the Lease, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice three times in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 Sections 13 and 20 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Jagged Peak, Inc.)
Defaults Remedies. (aA) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c22(d) below, Tenant fails to cure such default on or before the date that is 5 business 7 calendar days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c22(d) below, Tenant fails to cure the default on or before the date that is 30 10 calendar days after Landlord gives Tenant written notice of default; provided, however, if the default cannot reasonably be cured within 30 10 calendar days following Landlord’s 's giving of written notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s 's notice) to cure the default if Tenant begins to cure the default within 30 10 calendar days following Landlord’s 's notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(bB) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s 's incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s 's option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s 's account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when within 5 days of the due date any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To peaceably enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant written notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of written notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s written notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇b▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawfulPremises, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damagesotherwise. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party reasonable attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease, and agree that any trial shall be a bench trial.
Appears in 1 contract
Sources: Lease Agreement (Uroplasty Inc)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c20(c) below, Tenant fails to cure such default on or before the date that is 5 business 10 days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 17 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c20(c) below, Tenant fails to cure the default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or,
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ bill in equity or other proceeding for the appointment of a receiver for any of Tenant’s 's assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s 's incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s ▇▇▇▇▇▇▇▇'s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s 's account. Tenant ▇▇▇▇▇▇ agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 10 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 10 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 30 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 10 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with lawotherwise, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;, less any Rent that Landlord may reasonably be expected to collect from any replacement tenant or occupant at prevailing market rates; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market area.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section Sections 13, 20 or 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
Appears in 1 contract
Sources: Lease Agreement (Ev3 Inc.)
Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, and Tenant fails to cure the default on or before the date that is 30 21 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 21 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 21 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iviii) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, in addition to all other rights and remedies available to Landlord at law, in equity, by statute or otherwise, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereof) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfullyPremises, by breaking open locked doors if necessary and lawfulnecessary, and remove all persons and all or any property, by action at law or otherwise in accordance with applicable law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make reasonable Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all reasonable costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To In connection with a termination of the Lease only, to accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable;, provided that such accelerated Rent shall be reduced by the fair market value of the Premises (less costs reasonably anticipated by Landlord in connection with such reletting including, but not limited to, brokerage commissions and necessary alterations to the Premises) and discounted to present value at the rate of 4% per annum; and
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market areaTerm.
(c) Any provision to the contrary in this Section 22 notwithstanding, notwithstanding (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a22(a)(i) above more than twice in any consecutive 12-month period, and thereafter in connection with any late payment within such 12-month period, Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, and (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b22(b)(i) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 2020 or in an emergency.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord makes to mitigate the damages caused by Tenant’s default default, if any, shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
(g) Landlord shall not exercise any remedies otherwise available to Landlord under this Lease and/or at law or in equity without having given Tenant the notices and allowed the cure periods expressly in Section 22(a) above (except as provided in Section 22(c). Landlord’s right to accelerate rent shall be limited to the provision of Section 22(b)(iii). Any eviction or detainer action by Landlord with respect to Tenant’s right to use the Premises, shall be conducted in accordance with proper statutory procedures.
(h) Landlord shall use commercially reasonable efforts to mitigate its damages resulting from an Event of Default by Tenant under this Lease. Landlord’s obligation to mitigate damages after a default by Tenant under this Lease shall be satisfied in full if Landlord undertakes to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with the following criteria:
(i) Landlord shall have no obligation to solicit or entertain negotiations with any other prospective tenants for the Premises until Landlord obtains full and complete possession of the Premises including, without limitation, the final and unappealable legal right to relet the Premises free of any claim of Tenant.
(ii) Landlord shall not be obligated to offer the Premises to a prospective tenant when other premises in the Building suitable for that prospective tenant’s use are (or soon will be) available.
(iii) Landlord shall not be obligated to enter into a new lease under terms and conditions that are unacceptable to Landlord under Landlord’s then current reasonable leasing policies for comparable space in the Building.
(iv) Landlord shall not be obligated to enter into a lease with any proposed tenant whose use would: (i) disrupt the tenant mix or balance of the Building; (ii) violate any restriction, covenant, or requirement contained in the lease of another tenant of the Building; (iii) adversely affect the reputation of the Building; or (iv) be incompatible with the operation of the Building as a first-class building.
(v) Landlord shall not be obligated to enter into a lease with any proposed Substitute Tenant which does not have, in Landlord’s reasonable opinion, sufficient financial resources to operate the Premises in a first-class manner.
(vi) Landlord shall not be required to expend any amount of money to alter, remodel, or otherwise make the Premises suitable for use by a proposed Substitute Tenant unless:
1) Tenant pays any such sum to Landlord in advance of Landlord’s execution of a Substitute Lease with such Substitute Tenant (which payment shall not be in lieu of any damages or other sums to which Landlord may be entitled as a result of Tenant’s default under this Lease); or
2) Landlord, in Landlord’s reasonable business discretion, determines that any such expenditure is financially justified in connection with entering into any such Substitute Lease. Upon compliance with the above criteria regarding the releasing of the Premises after an Event of Default by Tenant, Landlord shall be deemed to have fully satisfied Landlord’s obligation to mitigate damages under this Lease and under any law or judicial ruling in effect on the date of this Lease or at the time of Tenant’s default, and Tenant waives and releases, to the fullest extent legally permissible, any right to assert in any action by Landlord to enforce the terms of this Lease, any defense, counterclaim, or rights of setoff or recoupment respecting the mitigation of damages by Landlord, unless and to the extent Landlord maliciously or in bad faith fails to act in accordance with the requirements of this Section 22(h).
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Defaults Remedies. (a) It shall be an Event of Default:
(i) If Tenant does not pay in full when due any and all Rent and, except as provided in Section 22(c) below, Tenant fails to cure such default on or before the date that is 5 business days after Landlord gives Tenant notice of default;
(ii) If Tenant enters into or permits any Transfer in violation of Section 18 above;
(iii) If Tenant fails to observe and perform or otherwise breaches any other provision of this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure the default on or before the date that is 30 days after Landlord gives Tenant notice of default; provided, however, if the default cannot reasonably be cured within 30 days following Landlord’s giving of notice, Tenant shall be afforded additional reasonable time (not to exceed 45 60 days following Landlord’s notice) to cure the default if Tenant begins to cure the default within 30 days following Landlord’s notice and continues diligently in good faith to completely cure the default; or
(iv) If Tenant becomes insolvent or makes a general assignment for the benefit of creditors or offers a settlement to creditors, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any federal or state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for any of Tenant’s assets is commenced, or if any of the real or personal property of Tenant shall be levied upon; provided that any proceeding brought by anyone other than Landlord or Tenant under any bankruptcy, insolvency, receivership or similar law shall not constitute an Event of Default until such proceeding has continued unstayed for more than 60 consecutive days.
(b) If an Event of Default occurs, Landlord shall have the following rights and remedies:
(i) Landlord, without any obligation to do so, may elect to cure the default on behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for any sums paid or costs incurred by Landlord (together with an administrative fee of 15% thereofthe Administrative Fee) in curing the default, plus interest at the Interest Rate from the respective dates of Landlord’s incurring such costs, which sums and costs together with interest at the Interest Rate shall be deemed additional Rent;
(ii) To enter and repossess the Premises lawfully, by breaking open locked doors if necessary and lawful, and remove all persons and all or any property, by action at law or otherwise in accordance with law, without being liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs in order to relet the Premises and relet all or any part(s) of the Premises for Tenant’s account. Tenant agrees to pay to Landlord on demand any deficiency (taking into account all costs incurred by Landlord) that may arise by reason of such reletting. In the event of reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease for such previous breach;
(iii) To After a further 10 day prior written notice to Tenant of Landlord’s intent to exercise its rights pursuant to this Section 22(b)(iii), unless such Event of Default is cured within said 10 day period, to accelerate the whole or any part of the Rent for the balance of the Term, and declare the same to be immediately due and payable, discounted to present value at the rate equal to the annual yield on 30 day United States Treasury bills at the time of acceleration (provided, however, there shall not be any discounting for any then current arrearage);
(iv) To terminate this Lease and the Term without any right on the part of Tenant to save the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; and
(v) Notwithstanding anything to the contrary in this Lease, Landlord shall use commercially reasonable efforts to relet the Premises in order to mitigate its damages hereunder, but Landlord shall not be required to prefer the Premises over other space available for lease in the Building or in other buildings owned by Landlord or its Affiliates in the southern New Jersey market areaIntentionally Deleted.
(c) Any provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall not be required to give Tenant the notice and opportunity to cure provided in Section 22(a) above more than twice in any consecutive 12-month period, and thereafter Landlord may declare an Event of Default without affording Tenant any of the notice and cure rights provided under this Lease, (ii) Landlord shall not be required to give such notice prior to exercising its rights under Section 22(b) if Tenant fails to comply with the provisions of Section 27 or in an emergency, and (iii) only a 5 day notice shall be required if Tenant fails to comply with the provisions of Sections 13 or 20.
(d) No waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of any rights and remedies with respect to such or any subsequent breach. Efforts by Landlord to mitigate the damages caused by Tenant’s default shall not constitute a waiver of Landlord’s right to recover damages hereunder. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy provided herein or by law, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity. No payment by Tenant or receipt or acceptance by Landlord of a lesser amount than the total amount due Landlord under this Lease shall be deemed to be other than on account, nor shall any endorsement or statement on any check or payment be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s right to pursue any other available remedy.
(e) If either party commences an action against the other party arising out of or in connection with this Lease, the prevailing party shall be entitled to have and recover from the other party attorneys’ fees, costs of suit, investigation expenses and discovery costs, including costs of appeal.
(f) Landlord and Tenant waive the right to a trial by jury in any action or proceeding based upon or related to, the subject matter of this Lease.
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Sources: Lease Agreement